72988522-succession-outline-notes-cases.docx

Wills & Succession/ Atty Uribe SUCCESSION

Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law.

Legend: T – Senator Tolentino comments B – Professor Balane comments

Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will.

I. GENERAL PROVISIONS

Art. 887. The following are compulsory heirs:

A. Definition and Concepts

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (n)

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower;

Art. 712. Ownership is acquired by occupation and by intellectual creation.

(4) Acknowledged natural children, and natural children by legal fiction;

Ownership and other real rights over property are acquired and transmitted by law, by donation, by estate and intestate succession, and in consequence of certain contracts, by tradition.

(5) Other illegitimate children referred to in Article 287.

They may also be acquired by means of prescription. Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent. If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favor upon a third person. Fundamental Changes in the NCC in line with the purpose of Socialization 1. The surviving spouse is given a better status in terms of succession to the property of the decease husband, her right to the property was improved from a mere usufruct to full ownership. 2. The illegitimate children are now given successional rights unlike the old civil code which does not. Further, the illegitimate child’s mother or father not related by blood has a chance of inheriting, thus, furthering the purpose of socialization preventing a the property from staying within the same family.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. (807a) The Collateral Relatives Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (946a) Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. (947) Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. In relation to Article 975 which states Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. 

Division per capita entails a division of the estate into as many equal parts as there are persons to succeed. If there are three children, for instance, each will receive, per capita, one third of the estate. Division per capita is the general rule.

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Division per stirpes is made when a sole descendant or a group of descendants represent a person in intestate succession. The sole representative or group of representatives are counted as one head. Thus, should a father be survived by a son and four children of another son who predeceased him, then, the estate is divided per stirpes. The first half is given to the surviving son and the other half shall be divided among the four grandchildren.

3. The Legitime of the compulsory heirs is increased from 1/3 to ½ 4. The free portion of the estate of the deceased is likewise increased. B. Subjects of Succession 1. Who are the subjects? The Decedent Art. 775. In this Title, "decedent" is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. The Heir, devisee, Legatee

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Wills & Succession/ Atty Uribe Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (949) Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. (950) Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood. (915) Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. (954a) Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.(955a) 

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when there are no brothers whether the full of half blood, the other collateral relatives succeed which whom, however, are limited within the 5th degree of relationship. Because beyond this degree, it is safe to say that, there is hardly any affection to merit succession. Hence, for succession purposes these persons are no longer considered relatives. The following rules shall apply: 1. the nearest relative exclude the farther. 2. collateral of the same degree inherit equal parts, there being no right of representation, 3. They succeed without distinction or lines or preference among them on account of the whole blood relationship

Art. 1012. In order that the State may take possession of the property mentioned in the preceding article, the pertinent provisions of the Rules of Court must be observed. (958a) Art. 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the deceased last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary may warrant. The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used. (956a) Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within five years from the date the property was delivered to the State, such person shall be entitled to the possession of the same, or if sold the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. 2. Relationships (Intestate or Legal Heirs) Art. 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. Art. 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants.

The State Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate. (956a) 

facto become the owner of the estate left without heir. Its right to claim must be based on a court’s ruling allowing it to have the estate, after compliance with the procedure laid down by the Rules of Court. (Rule 91)

A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (916a)

When a person dies intestate, leaving no compulsory heir, nor any other relatives to succeed him by law, the natural result would be the complete abandonment of the property.

Art. 965. The direct line is either descending or ascending.

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The estate becomes subject to appropriation by anyone. This condition would result in conflicts detrimental to the public and economic order.

The latter binds a person with those from whom he descends. (917)

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In view of this, the law awards the property to the State, in representation of the people. Ratio: a) Dictated by public policy and, b) private property is enjoyed only under the protection of the State, and when no longer used, it should revert back to the State.

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The reversion of the res nullius property can only be done through an Escheat proceedings instituted by the Solicitor General to the proper court ( the city or municipality where the land is situated ). The State, therefore does not ipso

The former unites the head of the family with those who descend from him.

Art. 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth. (918a)

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Wills & Succession/ Atty Uribe Art. 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father. (920a) Art. 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take place. (922) 

In such cases as above, the shares would have pertained to those who repudiated or are incapacitated do not pass to relatives of the next degree, but are retained by other relatives of the same degree through the right of accretion, with the exception of the cases where the right of representation obtains. The right to represent a living person obtains only in cases of disinheritance and incapacity.

Art. 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance. * The article only pertains to repudiation. What then would be the effect of incapacity of the only nearest relative? The right of representation may or may not obtain. Should the incapacitated heir be the child of the decease, and he in turn has children, the latter may represent the incapacitated heir.

3. Capacity to Succeed The general rule is any person may succeed by law or by will unless excluded by law. Requisites of capacity to succeed: a) that there be general civil capacity of the person, whether natural or artificial, according to law; and b) that here be no incapacity to succeed under express provision of law. a.

Determination

Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion. In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report. If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered. Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated. 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

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national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a) Cayetano vs. Leonides 129 SCRA 522 On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos. Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix. In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last will and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix' death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wills at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines. Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his children and forced heirs as, on its face patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court on September 13, 1982. ISSUE: Whether or not a compulsory heir may be validly excluded by a will executed by a foreign testator? HELD: YES RATIO: Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide: Art. 16 par. (2)."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

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Wills & Succession/ Atty Uribe may be the nature of the property and regardless of the country wherein said property may be found." Art. 1039."Capacity to succeed is governed by the law of the nation of the decedent." the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law. It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16 (2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:"It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. b.

Who may succeed?

Art. 1024. Persons not incapacitated by law may succeed by will or ab intestato. The provisions relating to incapacity by will are equally applicable to intestate succession. (744, 914) 

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the second paragraph above merely enunciates a general rule because Article 1027 and 1028 clearly are exceptions which do not apply to intestate succession but only that of testamentary dispositions. Kinds of Incapacity: a) absolute or per se and b) relative or per accidens

Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. (n) * Those not existing at the time of death is incapacitated to succeed except on conditional wills where succession only opens upon the happening of the condition. Art. 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes. All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. (746a)

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Art. 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Article 1013. (747a) Art. 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise. The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary. The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality. Parish Priest of Victoria vs. Rigor This case is about the efficaciousness or enforceability of a devise of ricelands located at Guimba, Nueva Ecija, with a total area of around forty-four hectares. That devise was made in the will of the late Father Pascual Rigor, a native of Victoria, Tarlac, in favor of his nearest male relative who would study for the priesthood. The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9, 1935, leaving a will executed on October 29, 1933 which was probated by the Court of First Instance of Tarlac in its order of December 5, 1935. Named as devisees in the will were the testator's nearest relatives, namely, his three sisters: Florencia RigorEscobar, Belina Rigor-Manaloto and Nestora RigorQuiambao. The testator gave a devise to his cousin, Fortunato Gamalinda. About thirteen years after the approval of the project of partition, or on February 19, 1954, the parish priest of Victoria filed in the pending testate proceeding a petition praying for the appointment of a new administrator (succeeding the deceased administratrix, Florencia Rigor), who should deliver to the church the said ricelands, and further praying that the possessors thereof be ordered to render an accounting of the fruits. The probate court granted the petition. A new administrator was appointed. On January 31, 1957 the parish priest filed another petition for the delivery of the ricelands to the church as trustee. The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying that the bequest be declared inoperative and that they be adjudged as the persons entitled to the said ricelands since, as admitted by the parish priest of Victoria, "no nearest male relative of" the testator "has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal). That petition was opposed by the parish priest of Victoria.

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Wills & Succession/ Atty Uribe Judge De Aquino granted the second motion for reconsideration in his order of December 10, 1957 on the ground that the testator had a grandnephew named Edgardo G. Cunanan (the grandson of his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit Fathers in Quezon City. The administrator was directed to deliver the ricelands to the parish priest of Victoria as trustee. The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father Rigor had created a testamentary trust for his nearest male relative who would take the holy orders but that such trust could exist only for twenty years because to enforce it beyond that period would violate "the rule against perpetuities". It ruled that since no legatee claimed the ricelands within twenty years after the testator's death, the same should pass to his legal heirs, citing articles 888 and 912(2) of the old Civil Code and article 870 of the new Civil Code. The will of the testator is the first and principal law in the matter of testaments. When his intention is clearly and precisely expressed, any interpretation must be in accord with the plain and literal meaning of his words, except when it may certainly appear that his intention was different from that literally expressed (In re Estate of Calderon, 26 Phil. 333

testator's nearest male relative at anytime after his death would render the provisions difficult to apply and create uncertainty as to the disposition of his estate. That could not have been his intention. In 1935, when the testator died, his nearest legal heirs were his three sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator specified his nearest male relative, he must have had in mind his nephew or a son of his sister, who would be his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact date of his death or state with certitude what category of nearest male relative would be living at the time of his death, he could not specify that his nearest male relative would be his nephew or grandnephews (the sons of his nephew or niece) and so he had to use the term "nearest male relative". Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in 1961. For that reason, the legal heirs apprised the Court of Appeals that the probate court's order adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p. 84, Appellant's brief).

"The intent of the testator is the cardinal rule in the construction of wills." It is "the life and soul of a will". It is "the first greatest rule, the sovereign guide, the polestar, in giving effect to a will"

Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la carrera eclesiastica" would include indefinitely anyone of his nearest male relatives born after his death, he could have so specified in his will. He must have known that such a broad provision would suspend for an unlimited period of time the efficaciousness of his bequest.

From the foregoing testamentary provisions, it may be deduced that the testator intended to devise the ricelands to his nearest male relative who would become a priest, who was forbidden to sell the ricelands, who would lose the devise if he discontinued his studies for the priesthood, or having been ordained a priest, he was excommunicated, and who would be obligated to say annually twenty masses with prayers for the repose of the souls of the testator and his parents.

Following that interpretation of the will, the inquiry would be whether at the time Father Rigor died in 1935 he had a nephew who was studying for the priesthood or who had manifested his desire to follow the ecclesiastical career. That query is categorically answered in paragraph 4 of appellant priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged therein that "no nearest male relative of the late (Father) Pascual Rigor has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal).

On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in two situations: one, during the interval of time that no nearest male relative of the testator was studying for the priesthood and two, in case the testator's nephew became a priest and he was excommunicated.

Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the administration of the ricelands by the parish priest of Victoria, as envisaged in the will, was likewise inoperative.

What is not clear is the duration of "el intervalo de tiempo que no haya legatario acondicionado", or how long after the testator's death would it be determined that he had a nephew who would pursue an ecclesiastical vocation. It is that patent ambiguity that has brought about the controversy between the parish priest of Victoria and the testator's legal heirs. Interwoven with that equivocal provision is the time when the nearest male relative who would study for the priesthood should be determined. Did the testator contemplate only his nearest male relative at the time of his death? Or did he have in mind any of his nearest male relatives at anytime after his death? We hold that the said bequest refers to the testator's nearest male relative living at the time of his death and not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper" (Art. 1025, Civil Code). The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring to the

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The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code, now article 956, which provides that if "the bequest for any reason should be inoperative, it shall be merged into the estate, except in cases of substitution and those in which the right of accretion exists" ("el legado . . . por qualquier causa, no tenga efecto, se refundir en la masa de la herencia, fuera de los casos de sustitucion y derecho de acrecer"). This case is also covered by article 912(2) of the old Civil Code, now article 960(2), which provides that legal succession takes place when the will "does not dispose of all that belongs to the testator." There being no substitution nor accretion as to the said ricelands, the same should be distributed among the testator's legal heirs. The effect is as if the testator had made no disposition as to the said ricelands. The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. The old rule as to the indivisibility of the testator's will is no longer valid. Thus, if a conditional legacy does not take effect, there will be intestate succession as to the property covered

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Wills & Succession/ Atty Uribe by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267). c.

Who are incapable of succeeding?

Art. 1027. The following are incapable of succeeding: (1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; (2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; (3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; (4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; in relation to Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n) (5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; (6) Individuals, associations and corporations not permitted by law to inherit. (745, 752, 753, 754a) Art. 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. Art. 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void. (755) Art. 1032. The following are incapable of succeeding by reason of unworthiness: (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an

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officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; (5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent. (756, 673, 674a) Art. 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. (757a) d.

Effect of alienations by the excluded heir

Art. 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir, before the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall have a right to recover damages from the disqualified heir. e.

Rights of the excluded Heir

Art. 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime. The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children Art. 1037. The unworthy heir who is excluded from the succession has a right to demand indemnity or any expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate. Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within five years from the date the property was delivered to the State, such person shall be entitled to the possession of the same, or if sold the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. f.

Liabilities of the excluded heir

Art. 1038. Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles, entered into the possession of the hereditary property, shall be obliged to return it together it its accessions. He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due diligence. g.

Prescription of Action

Art. 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall

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Wills & Succession/ Atty Uribe be brought within five years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession. C. Object of Succession Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. It is evident from this article that the inheritance does not include everything that belongs to the deceased at the time of his death. It is limited to the property, rights, and obligations not extinguish by his death. Including those transmissible rights and property accruing thereto from that time pertain to the heir. The following are the rights and obligations extinguished by death: 1.

those arising from marriage

2.

action for legal separation belonging to the innocent spouse

3.

action to annul marriage

4.

obligation to give legal support except those expressly provided for by law

5.

right to receive support

6.

right of patria potestas

7.

right of the guardian

8.

right of usufruct

9.

right of donor to revoke donation due to ingratitude of donee

10. rights arising from agency not the effects already executed 11. criminal responsibility 12. rights from public law such as suffrage and public employment The following rules are laid down 1.

rights which are purely personal are by their nature and purpose intransmissible, ex. Those relating to civil personality, family rights, and discharge of public office

2.

rights which are patrimonial or relating to property are, as ageneral rule, not extinguished by death except those expressly provided by law or by will of the testator such as usufruct and personal servitudes.

3.

rights of obligation are by nature transmissible and may be part of inheritance, both the right of the creditor and obligation of the debtor except the following: a.

b.

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those which are personal, such as personal qualifications of the debtor have been taken into account those that are intransmissible by express agreement or will of testator

c.

those that are intransmissible by express provision of law like life pensions given under contract

The heirs of the deceased are no longer liable for the debts he may leave at the time of his death. Such debts are chargeable against the property or assets left by the deceased. In other words, the heirs are no longer liable personally for the debts of the deceased ; such debts must be collected only from the property left upon his death, and if this should not be sufficient to cover all of them, the heirs cannot be made to pay the uncollectible balance. Inheritance consists of the mass of property, rights, and obligations adjudicated to the heirs or transmitted to them after deducting therefrom all the debts left by the deceased. This should not be understood to mean, however, that obligations are no longer a part of inheritance. Only the money debts are chargeable against the estate left by the deceased; these are obligations which do not pass to the heirs, but constitute a charge against the hereditary property. Art. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. Since ownership is vested in the heir from the moment of the death of the predecessor, necessarily all accessions subsequent to that moment must belong to such heir. The criticism on this article is that the accession to such property is not transmitted by death; it is acquired already by virtue of the right of ownership which is vested from the moment of the predecessor’s death in the successor. It is judicially erroneous to say that inheritance includes such accession. Even without this article, an heir would be entitled to the accession and fruits which accrued since the death of the decedent by virtue of the right of accession (ownweship). Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent. If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favor upon a third person. As a general rule, rights and obligations under a contract are transmitted to the heirs of the parties. The heirs cannot be considered third parties, because there is privity of interest between them and their predecessor. A lease contract is transmissible to the heirs of the lessee. The heirs of a party in whose favor a trust exists, may enforce the trust against the trustee. The heirs of the parties to a contract may make a valid novation of said contract. Art. 1429. When a testate or intestate heir voluntarily pays a debt of the decedent exceeding the value of the property which he received by will or by the law of intestacy from the estate of the deceased, the payment is valid and cannot be rescinded by the payer.

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Wills & Succession/ Atty Uribe Art. 1178. Subject to the laws, all rights acquired in virtue of an obligation are transmissible, if there has been no stipulation to the contrary.

The action to demand restoration, reparation, and indemnification likewise descends to the heirs of the person injured.

As a general rule. Civil rights are transmissible except: 1) expressly provided by law that they are not. 2) Stipulation of the parties. 3) Personal rights of the debtor. An instrument evidencing a credit may be transferred or assigned by the creditor to another, and the transferee would be considered in lawful possession of the same as well as the credit, unless contrary is shown.

The heirs of the person liable has no obligation if restoration is not possible and the deceased left no property.

Transmissibility is the capability of the rights to be transferred from one person to another.

This article is criticized by some commentators. It is contended that the right to succeed to the properties of a person is not transmitted to anyone from the moment of the death of such person. What happens is that the death of a person consolidates and renders immutable, in a certain sense, rights which up to that moment were nothing but mere expectancy. These rights arise from the express will of the testator or from the provisions of the law, but they do not acquire solidity and effectiveness except from the moment of death; before this event, the law may change, the will of the testator may vary, and even circumstances may be modified to such an extent that he who is expected to receive property may be deprived of it; but once death supervenes, the will of the testator becomes immutable, the law as to the succession can no longer be changed, disinheritance cannot be effected, and the rights to the succession acquire a character of marked permanence. What the article really means is that succession is opened by the death of the person from whom the inheritance comes.

Art. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. It is essential that the object must be in existence at the time of perfection of the contract, or that it has the possibility or potentiality of coming into existence at some future time. By way of exception, the law generally does not allow contracts on future inheritance. In order to be future inheritance, the succession must not have been opened at the time of the contract. A contract to fall within the prohibition of this article, the following requisites are necessary: 1. that the succession is yet to be opened. 2. the object forms part of the inheritance. 3. the promissor has an expectant right over the object which is purely hereditary in nature. An agreement to partition an estate of a living person by those who inherit from him is void. A contract renouncing the right to inherit from one who is still alive is void. After the death of the person, however, the properties and rights left by him by way of inheritance can be the subject matter of a contract among or by his heirs, even before a partition thereof has been made, because the rights of the heirs are transmitted to them from the death of the predecessor. When the object of the contract is not a part of the inheritance, the prohibition does not apply, even if delivery of such object is dependent upon the death of one of the contracting parties. Thus, life insurance contracts, and stipulations providing for reversion of property donated in marriage settlements in the event of the death of the donee, are valid. Likewise, if the right of the party over the thing is not by virtue of succession, but as creditor, the contract does not fall within the prohibition of this article. It has been held that in a contract of purchase by co-owners, it is valid to stipulate that in the event of death of any of them, those who survive will acquire the share of the predeceased. (RPC) Art. 108. Obligation to make restoration, reparation for damages, or indemnification for consequential damages and actions to demand the same; Upon whom it devolves. — The obligation to make restoration or reparation for damages and indemnification for consequential damages devolves upon the heirs of the person liable.

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D. Opening of Succesion Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)

The provision must therefore, be understood as meaning that the rights to the succession of a person are transmitted from the moment of his death, and by virtue of prior manifestations of his will or of causes predetermined by law. Two must be considered, therefore, the origin of the right, and that which makes the right effective. It is clear that the moment of death is the determining point when the heirs acquire a definite right to inheritance whether pure or conditional. It is immaterial whether a short or long period of time elapse between the death of the predecessor and the entry in the possession of the properties of the inheritance, because the rights are always deemed to retroact to the moment of death. The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of death of the decedent in case the inheritance is accepted. The law avoids any gap to ownership of property or a period wherein a property has no clear owner or a period of res nullius. Note: That death under this article is not limited to natural or physical death, presumed death by virtue of prolonged legal absence is included. Art. 2263. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory

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Wills & Succession/ Atty Uribe heir be given his full share according to this Code. (Rule 12a) The decisive fact which gives origin to the right of heirs, devisees and legatees is the death of the decedent. This is the basis of the present article. Thus, the provisions of the new code relaxing the rigidity of the rules of the old code regarding proof or recognition of natural children, were held inapplicable to one claiming recognition and a share in the estate of the alleged natural father who died before the new code went into effect. Art. 2253. The Civil Code of 1889 and other previous laws shall govern rights originating, under said laws, from acts done or events which took place under their regime, even though this Code may regulate them in a different manner, or may not recognize them. But if a right should be declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been done or may have occurred under prior legislation, provided said new right does not prejudice or impair any vested or acquired right, of the same origin. (Rule 1) The second sentence of this article gives a retroactive effect to newly created rights, provided they do not prejudice or impair any vested or acquired right. Thus, compensation for damages under article 21 of the new civil code, being a right declared for the first time, shall be effective at once, eventhough the acts giving rise thereto were done before the effectivity of the new code. But the new successional rights granted by the new Civil code in favor of illegitimate children cannot be given retroactive effect and be made to apply to the estate of a deceased who died before the effectivity of the new Civil Code, for the same would have the effect of impairing the vested rights of another who is deemed to have become the owner of the deceased’s property upon the latter’s death during the regime of the old Civil Code. Art. 533. The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted. One who validly renounces an inheritance is deemed never to have possessed the same. (440) The article relates to tacking of possession due to privity to relations. By way of Example, A had been in possession of a piece of land, which he thought was his, for eight years, when he died. He left a son, B, who continued to occupy and cultivate the land as administrator, while the settlement of the properties left by A was pending. The proceedings in court for the settlement of the estate lasted three years; in these proceedings, B renounces his inheritance from A. The next nearest relative of A, was C, a brother, who accepted the inheritance. Legally, B has never been in possession although he was materially or physically holding the property, while C, who had never set foot upon the land, is deemed to have been in possession from the very moment that A died. So that, if later, a third person appears to claim the property, C can assert ownership by prescription, because, legally, the possession has not been interrupted for eleven years, and ten years possession in good faith is sufficient for prescription of ownership of real property.

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Art. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. Sale of future inheritance is void except in cases of Donation Propter Nuptias (art. 84, NCC) and Partition Inter Vivos (art. 1080). Ratio: 1. What an heir have is merely an inchoate right which does not come to existence after death of predecessor. 2. The amount or extent of inheritance cannot be exactly determined until death and after settlement thereof. Art. 1461. Things having a potential existence may be the object of the contract of sale. The efficacy of the sale of a mere hope or expectancy is deemed subject to the condition that the thing will come into existence. The sale of a vain hope or expectancy is void. Art. 130. The future spouses may give each other in their marriage settlements as much as one-fifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession. (1331a) Art. 131. The donor by reason of marriage shall release the property donated from mortgages and all other encumbrances upon the same, with the exception of easements, unless in the marriage settlements or in the contracts the contrary has been stipulated. (1332a) Art. 132. A donation by reason of marriage is not revocable, save in the following cases: (1) If it is conditional and the condition is not complied with; (2) If the marriage is not celebrated; (3) When the marriage takes place without the consent of the parents or guardian, as required by law; (4) When the marriage is annulled, and the donee acted in bad faith; thus, the implication of this ground is that the donor in bad faith cannot revoke. (5) Upon legal separation, the donee being the guilty spouse; thus, the implication of this article is that the guilty donor spouse cannot revoke his donation.

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Wills & Succession/ Atty Uribe (6) When the donee has committed an act of ingratitude as specified by the provisions of this Code on donations in general. (1333a)

(3) When the marriage is annulled, and the donee acted in bad faith; (4) Upon legal separation, the donee being the guilty spouse;

Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n) Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

(5) If it is with a resolutory condition and the condition is complied with; (6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a) Art. 765. The donation may also be revoked at the instance of the donor, by reason of ingratitude in the following cases: (1) If the donee should commit some offense against the person, the honor or the property of the donor, or of his wife or children under his parental authority;

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

(2) If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or the act has been committed against the donee himself, his wife or children under his authority;

(2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n) Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a) These donations, unlike donations of present property which take effect upon the celebration of the marriage, take effect upon the death of the donor spouse. It cannot be made in the marriage settlement but in a will or testament. Its limits are governed by the rules of testamentary succession provided by the Civil Code. Since a will can be revoked by the testator at any time before his death the donation propter nuptias of future property may be so revoked. Persons other than the affianced parties cannot give donations propter nuptial of future property. Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases: (1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81; (2) When the marriage takes place without the consent of the parents or guardian, as required by law;

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(3) If he unduly refuses him support when the donee is legally or morally bound to give support to the donor. (648a) REQUISITES FOR THE SUCCESSIONAL RIGHTS 1. 2. 3.

TRANSMISSION

OF

Express will of the testator or provision of law Death of the person whose property is subject of succession acceptance of the inheritance Art. 1041-1057

Express or tacit acceptance by the heir, devisee or legatee is necessary to the perfection of the juridical relation in succession, and indispensable to the transmission of successional rights. To make a person succeed by the mere fact of death of the predecessor is to deny him the right to accept or repudiate the inheritance. However, a previous declaration of heirship is not necessary in order that an heir may assert his right to the property of the deceased. The acceptance of the inheritance may, therefore, be said to be the confirmation of the institution of the heir, the perfection of the right to succeed. Art. 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free. (988) T: Acceptance is the act by which the person is called to succeed by universal title either by the testator or by law manifests his will of making his own the universality of the rights and obligations which are transmitted to him. Repudiation is the manifestation by such heir of his desire not to succeed to the said universality.

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Wills & Succession/ Atty Uribe T: Is partial acceptance allowed? Under the old civil code a partial acceptance or repudiation is prohibited, this prohibition was omitted in the NCC. Hence, it is submitted that in the light of the present law, inheritance can be accepted or repudiated partially. The argument that the personality of the decedent cannot be continued in fraction can no longer obtain in this jurisdiction. The heir in our law is not the continuation of the personality of the deceased. He stands on the same footing as a mere legatee in the Civil Code. If the latter may accept or repudiate partially, there is no legal reason why the heir should not be allowed to do so. The greater right always includes the less; if total acceptance or repudiation can be made, why not partial acceptance or repudiation? The argument that creditors of the estate would be prejudiced by partial acceptance has no force; because, under our present laws, the creditors of the estate must first be paid before it can be known whether ther is any inheritance left to be accepted or repudiated. Art. 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. (989) The law seeks to insure continuity in the ownership of the property, without hiatus or gap, even for a moment, from the time of the death of the decedent. The old civil code prohibited acceptance or repudiation with a term. Is it now allowed under the NCC? No conditional acceptance and repudiation is still prohibited. To permit this kind of acceptance is and repudiation will be placing in uncertainty the transmission of rights by succession. The power to impose conditions on the transmission is inherent only in the testator himself, as a logical consequence of his freedom to dispose of his property. The person favored cannot subject the transmission to conditions because he has no right over the property until he accepts the inheritance. The very Nature of transmission of property by mortis causa argues against the validity of acceptance or repudiation with a term or condition. The law seeks to insure continuity in the ownership of the property, without any hiatus or gap from the time of the death of the decedent. Thus, to allow this would be contrary to the principle of succession that inheritance is transmitted upon death. Art. 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance. (991) Requisites of acceptance: 1. certain of the death of the decedent, 2. must survive the decedent, 3. must have capacity to succeed, and 4. certain of his right to the inheritance. Ratio: the will of man is changeable. Even just before the moment of his death he may change his mind. A person who accepts from a living person an inheritance accepts or repudiates nothing at all. If a person is uncertain of his right to inherit then his acceptance or repudiation is ineffective. Art. 1044. Any person having the free disposal of his property may accept or repudiate an inheritance.

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Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization. The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in Article 1030. (992a) Acceptance presupposes not only rights but sometimes also obligations. Repudiation, on the otherhand, means alienation. Hence, persons having the capacity to succeed but not having the capacity to dispose of their property may not, therefore, accept or repudiate. Their legal representatives may do so for them. Exception to paragraph 2; where the act would be purely beneficial to the minor or incapacitated person, the intervention of the court is unnecessary. But where the institution, devise or legacy is subject to a charge or condition to be performed by the minor or incapacitated beneficiary, we believe that the approval of the court should be obtained. The minor should not be saddled with obligations without the approval of the guardianship court. Repudiation amounts to alienation of property; hence, there must always be judicial authorization. Art. 1045. The lawful representatives of corporations, associations, institutions and entities qualified to acquire property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the court shall be necessary. (993a) Art. 1046. Public official establishments can neither accept nor repudiate an inheritance without the approval of the government. (994) Refers to organizations which have their own social and public purpose, such as for culture separate from the mere manifestation of governmental functions of the State. Approval required by this article must be given by the head of the department to which the public establishment belong or is subordinated. Art. 1047. A married woman of age may repudiate an inheritance without the consent of her husband. (995a) Art. 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent. Should they not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may repudiate the same with judicial approval. (996a) Art. 1049. Acceptance may be express or tacit. An express acceptance must be made in a public or private document.

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Wills & Succession/ Atty Uribe A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir. Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed. (999a) Art. 1050. An inheritance is deemed accepted: (1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them; (2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs; (3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted. (1000) Other acts of tacit acceptance: 1. 2. 3. 4.

heir demands partition alienates some of the inheritance performs such acts which show the clear intent ot accept. Art. 1057, failure to signify to court one’s acceptance or repudiation within 30 days from distribution

Art. 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings. (1008) T: The law considers the act of repudiation more solemn than the act of acceptance; hence, the requirement of a public or authentic writing or one presented to the judge.The acceptance of an inheritance confirms the transmission of the right, while repudiation makes this transmission ineffective, producing thereby more violent and disturbing consequences which the law cannot permit by mere implications or presumptions. Public instrument refers to one notarized and duly acknowledged by a notary. Authentic here refers to one whose genuinenessn is admitted or clearly proved. Art. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong. (1001)

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The law seeks to protect the creditor. By the debtor-heir’s repudiation two are affected thereat. The co-heir who receives more and the creditor who is prejudiced thereby. The law favors the latter. The acceptance by the creditor does not revoke the repudiation but only rescinds the same to the extent sufficient to protect the interest of the creditors. Requisites to entitle creditor to accept repudiated inheritance: 1. 2. 3. 4.

There must be a valid repudiation in accord with law as to from There must be existing credits Judicial authorization must be obtained by creditors to accept The repudiation prejudices the ceditors.

Exceptions: 1. 2. 3.

Creditors who became such after repudiation inheritance is useless to the heir because the debt of the estate exceeds the inheritance left the heir-debtor is solvent and has sufficient properties to cover his debt.

Art. 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be transmitted to his heirs. (1006) This is on the assumption that the heir of the heir who died accepts his inheritance from the latter. Then he may accept the inheritance from the original decedent. Art. 1054. Should there be several heirs called to the inheritance, some of them may accept and the others may repudiate it. (1007a) Art. 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities. Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity. (1009) T: The repudiation of the express will of the testator includes that of the presumed will, but the repudiation of the latter still leaves the express will open to respect. Ratio: An heir by will who repudiates the same, manifests his dislike to become an heir in any concept. By his act reveals the fact that he does not deserve to become his successor even by intestacy. OTOH, when an heir repudiates as legal heir may later accept by will on the reason that a person may not desire to succeed by intestacy but is willing to succeed by testamentary capacity in order to follow the wishes of the dead. Art. 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except when it was made through any of the

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Wills & Succession/ Atty Uribe causes that vitiate consent, or when an unknown will appears. (997) Other causes or revocation: 1. 2. 3.

one who accepts or repudiates who is not entitled to the inheritance has no legal effect. when institution depends upon the fulfillment of a suspensive condition which is not realized birth of a posthumous child not born or is born dead

Art. 1057. Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance. If they do not do so within that time, they are deemed to have accepted the inheritance. (n)

CASES: 5. Uson vs. Del Rosario Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his common- law wife Maria del Rosario took possession illegally of said lands thus depriving her of their possession and enjoyment. Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late Faustino Nebreda, executed a public document whereby they agreed to separate as husband and wife and, in consideration of their separation, Maria Uson was given a parcel of land by way of alimony and in return she renounced her right to inherit any other property that may be left by her husband upon his death (Exhibit 1). After trial, at which both parties presented their respective evidence, the court rendered decision ordering the defendants to restore to the plaintiff the ownership and possession of the lands in dispute without special pronouncement as to costs. Defendants interposed the present appeal. There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five parcels of lands litigated in the present case. There is likewise no dispute that Maria del Rosario, one of the defendantsappellants, was merely a common-law wife of the late Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil Code). As this Court aptly said, "The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested.

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The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531). But defendants contend that, while it is true that the four minor defendants are illegitimate children of the late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code which became in force in June, 1950, they are given the status and rights of natural children and are entitled to the successional rights which the law accords to the latter (Article 2264 and article 287, new Civil Code), and because these successional rights were declared for the first time in the new code, they shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation (Article 2253, new Civil Code). There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right should be declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been done or may have occurred under the prior legislation, provided said new right does not prejudice or impair any vested or acquired right, of the same origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute. As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to assign the lands in question to the minor children for the reason that they were acquired while the deceased was living with their mother and Maria Uson wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real property, inasmuch as it involves no material consideration, and in order that it may be valid it shall be made in a public document and must be accepted either in the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that the alleged assignment or donation has no valid effect. Wherefore, the decision appealed from is affirmed, without costs. 6. De Borja vs. De Borja It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for the probate of her will which was docketed as Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946, Francisco de

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Wills & Succession/ Atty Uribe Borja was appointed executor and administrator: in 1952, their son, Jose de Borja, was appointed co-administrator. When Francisco died, on 14 April 1954, Jose became the sole administrator of the testate estate of his mother, Jose Tangco While a widower Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix. The validity of Tasiana's marriage to Francisco was questioned in said proceeding. The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and counter-suits; including the three cases at bar, some eighteen (18) cases remain pending determination in the courts. The testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a century. In order to put an end to all these litigations, a compromise agreement was entered into on 12 October 1963, 2 by and between "[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton, Jr." On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances. The Rizal court approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case No. L28568) by the Court of First Instance of Nueva Ecija. The genuineness and due execution of the compromise agreement of 12 October 1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect. In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the decedent left no will and no debts, and the heirs are all of age, or the minors are represented by their judicial and legal representatives . . ." The will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement.

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Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was entered into, on 12 October 1963, the governing provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a deceased person regardless of whether he left a will or not. He also relies on the dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have already divided the estate in accordance with a decedent's will, the probate of the will is a useless ceremony; and if they have divided the estate in a different manner, the probate of the will is worse than useless. This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual, in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) 3 there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. 4 Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not affect the validity of the transaction; neither does the coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits. It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her successional interest existed independent of Francisco de Borja's last will and testament, and would exist even if such will were not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja. This brings us to the plea that the Court of First In stance of Rizal had no jurisdiction to approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja, whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in the estate of her late husband, not the estate itself; and as already shown, that eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code:

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Wills & Succession/ Atty Uribe Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale of the vendor." Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point is without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text of the agreement that would show that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was only made in consideration of the cession of her hereditary rights. It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-mentioned was the compromise agreement of 13 October 1963, which already had been formally signed and executed by the parties and duly notarized. What the record discloses is that some time after its formalization, Ongsingco had unilaterally attempted to back out from the compromise agreement, pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the lapse of the allegedly intended resolutory period of 60 days and because the contract was not preceded by the probate of Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which objections have been already discussed. It was natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new settlement or novatory agreement before seeking judicial sanction and enforcement of Annex "A", since the latter step might ultimately entail a longer delay in attaining final remedy. That the attempt to reach another settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. L-28040; and it is more than probable that the order of 21 September 1964 and the motion of 17 June 1964 referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to reach a novatory accord can not invalidate the original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its approval and enforcement from the Court of First Instance of Rizal, which, as heretofore described, decreed that the agreement be ultimately performed within 120 days from the finality of the order, now under appeal. We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order should be upheld, while the contrary resolution of the Court of First Instance of Nueva Ecija should be, and is, reversed. 7. Bonilla vs. Barcena On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to quiet title over certain parcels of land located in Abra. On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that Fortunata Barcena is

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dead and, therefore, has no legal capacity to sue. Said motion to dismiss was heard on August 14, 1975. In said hearing, counsel for the plaintiff confirmed the death of Fortunata Barcena and asked for substitution by her minor children and her husband, the petitioners herein; but the court after the hearing immediately dismissed the case on the ground that a dead person cannot be a real party in interest and has no legal personality to sue. On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the plaintiff for lack of merit. On September 1, 1975, counsel for deceased plaintiff filed a written manifestation praying that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute their deceased mother, but the court denied the counsel's prayer for lack of merit. From the order, counsel for the deceased plaintiff filed a second motion for reconsideration of the order dismissing the complaint claiming that the same is in violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the same was denied. The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil Case No. 856 and its orders denying the motion for reconsideration of said order of dismissal. While it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in pursuing the case up to its completion. The records of this case show that the death of Fortunata Barcena took place on July 9, 1975 while the complaint was filed on March 31, 1975. This means that when the complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and therefore, the court had acquired jurisdiction over her person. If thereafter she died, the Rules of Court prescribes the procedure whereby a party who died during the pendency of the proceeding can be substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a party to a pending case dies . . . it shall be the duty of his attorney to inform the court promptly of such death . . . and to give the name and residence of his executor, administrator, guardian or other legal representatives." This duty was complied with by the counsel for the deceased plaintiff when he manifested before the respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution of parties in the case. The respondent Court, however, instead of allowing the substitution, dismissed the complaint on the ground that a dead person has no legal personality to sue. This is a grave error. Article 777 of the Civil Code provides "that the rights to the succession are transmitted from the moment of the death of the decedent." From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by law. 3 The moment of death is the determining factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent. 4 The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings. 5 When Fortunata Barcena, therefore, died her claim or right to the parcels of land in litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. There is, therefore, no reason for the respondent Court to allow their substitution as parties in interest for the deceased plaintiff. 8. Bough vs. Modesto

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Wills & Succession/ Atty Uribe 9. Borromeo-Herrera vs. Borromeo Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13, 1952, in Parañaque, Rizal at the age of 88 years, without forced heirs but leaving extensive properties in the province of Cebu. On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition for the probate of a one page document as the last will and testament left by the said deceased, devising all his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided shares, and designating Junquera as executor thereof. The case was docketed as Special Proceedings No. 916-R. The document, drafted in Spanish, was allegedly signed and thumbmarked by the deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who acted as witnesses. Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the probate court held that the document presented as the will of the deceased was a forgery. On appeal to this Court, the decision of the probate court disallowing the probate of the will was affirmed in Testate Estate of Vito Borromeo, Jose H. Junquera, et al. v. Crispin Borromeo, et al. (19 SCRA 656). The testate proceedings was converted into an intestate proceedings. Several parties came before the court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito Borromeo. On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an order declaring the following, to the exclusion of all others, as the intestate heirs of the deceased Vito Borromeo: 1.Jose Cuenco Borromeo 2.Judge Crispin Borromeo 3.Vitaliana Borromeo 4.Patrocinio Borromeo Herrera 5.Salud Borromeo 6.Asuncion Borromeo 7. Marcial Borromeo 8.Amelinda Borromeo de Talam, and 9.The heirs of Canuto Borromeo The court also ordered that the assets of the intestate estate of Vito Borromeo shall be divided into 4/9 and 5/9 groups and distributed in equal and equitable shares among the 9 abovenamed declared intestate heirs. Fortunato Borromeo filed a motion for reconsideration. In the memorandum he submitted to support his motion for reconsideration, Fortunato changed the basis for his claim to a portion of the estate. He asserted and incorporated a Waiver of Hereditary Rights dated July 31, 1967, supposedly signed by Pilar N. Borromeo, Maria B. Putong. Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo, Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo, Consuelo B. Morales, Remedios Alfonso and Amelinda B. Talam. In the waiver, five of the nine heirs relinquished to Fortunato their shares in the disputed estate. The motion was opposed on the ground that the trial court, acting as a probate court, had no jurisdiction to take cognizance of the claim; that respondent Fortunato Borromeo is estopped from asserting the waiver agreement; that the waiver agreement is void as it was executed before the declaration of heirs; that the same is void having been executed before the distribution of the estate and before the acceptance of the inheritance; and that it is void ab initio and inexistent for lack of subject matter. On December 24, 1974, after due hearing, the trial court concluding that the five declared heirs who signed the waiver agreement assigning their hereditary rights to Fortunato

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Borromeo had lost the same rights, declared the latter as entitled to 5/9 of the estate of Vito Borromeo. In the present petition, the petitioner seeks to annul and set aside the trial court's order dated December 24, 1974, declaring respondent Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo and the July 7, 1975 order, denying the motion for reconsideration. It is further argued by the petitioner that the document entitled "Waiver of Hereditary Rights" executed on July 31, 1967, aside from having been cancelled and revoked on June 29, 1968, by Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo, is without force and effect because there can be no effective waiver of hereditary rights before there has been a valid acceptance of the inheritance the heirs intend to transfer. Pursuant to Article 1043 of the Civil Code, to make acceptance or repudiation of inheritance valid, the person must be certain of the death of the one from whom he is to inherit and of his right to the inheritance. Since the petitioner and her co-heirs were not certain of their right to the inheritance until they were declared heirs, their rights were, therefore, uncertain. This view, according to the petitioner, is also supported by Article 1057 of the same Code which directs heirs, devisees, and legatees to signify their acceptance or repudiation within thirty days after the court has issued an order for the distribution of the estate. Respondent Fortunato Borromeo on the other hand, contends that under Article 1043 of the Civil Code there is no need for a person to be first declared as heir before he can accept or repudiate an inheritance. What is required is that he must first be certain of the death of the person from whom he is to inherit and that he must be certain of his right to the inheritance. He points out that at the time of the signing of the waiver document on July 31, 1967, the signatories to the waiver document were certain that Vito Borromeo was already dead as well as of their rights to the inheritance as shown in the waiver document itself. The prevailing jurisprudence on waiver of hereditary rights is that "the properties included in an existing inheritance cannot be considered as belonging to third persons with respect to the heirs, who by fiction of law continue the personality of the former. Nor do such properties have the character of future property, because the heirs acquire a right to succession from the moment of the death of the deceased, by principle established in article 657 and applied by article 661 of the Civil Code. according to which the heirs succeed the deceased by the mere fact of death. More or less, time may elapse from the moment of the death of the deceased until the heirs enter into possession of the hereditary property, but the acceptance in any event retroacts to the moment of the death, in accordance with article 989 of the Civil Code. The right is vested, although conditioned upon the adjudication of the corresponding hereditary portion." (Osorio v. Osorio and Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could waive their hereditary rights in 1967 even if the order to partition the estate was issued only in 1969. In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered to be effective. For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the knowledge of the existence thereof; and (3) an intention to relinquish such right. (People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a right or advantage must be shown clearly and convincingly, and when the only proof of intention rests in what a party does, his act should be so manifestly consistent with, and indicative of an intent to,

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Wills & Succession/ Atty Uribe voluntarily relinquish the particular right or advantage that no other reasonable explanation of his conduct is possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159). The circumstances of this case show that the signatories to the waiver document did not have the clear and convincing intention to relinquish their rights. Thus: (1) On October 27, 1967, Fortunato, Tomas, and Amelia Borromeo filed a pleading entitled "Compliance" wherein they submitted a proposal for the amicable settlement of the case. In that Compliance, they proposed to concede to all the eight (8) intestate heirs of Vito Borromeo all properties, personal and real, including all cash and sums of money in the hands of the Special Administrator, as of October 31, 1967, not contested or claimed by them in any action then pending in the Court of First Instance of Cebu. In turn, the heirs would waive and concede to them all the 14 contested lots. In this document, the respondent recognizes and concedes that the petitioner, like the other signatories to the waiver document, is an heir of the deceased Vito Borromeo, entitled to share in the estate. This shows that the "Waiver of Hereditary Rights" was never meant to be what the respondent now purports it to be. Had the intent been otherwise, there would not be any reason for Fortunato, Tomas, and Amelia Borromeo to mention the heirs in the offer to settle the case amicably, and offer to concede to them parts of the estate of the deceased; (2) On April 21 and 30, 1969, the majority of the declared heirs executed an Agreement on how the estate they inherited shall be distributed. This Agreement of Partition was approved by the trial court on August 15, 1969; (3) On June 29, 1968, the petitioner, among others, signed a document entitled Deed of Assignment" purporting to transfer and assign in favor of the respondent and Tomas and Amelia Borromeo all her (Patrocinio B. Herrera's) rights, interests, and participation as an intestate heir in the estate of the deceased Vito Borromeo. The stated consideration for said assignment was P100,000.00; (4) On the same date, June 29, 1968, the respondent Tomas, and Amelia Borromeo (assignees in the aforementioned deed of assignment) in turn executed a "Deed of Reconveyance" in favor of the heirs-assignors named in the same deed of assignment. The stated consideration was P50,000.00; (5) A Cancellation of Deed of Assignment and Deed of Reconveyance was signed by Tomas Borromeo and Amelia Borromeo on October 15, 1968, while Fortunato Borromeo signed this document on March 24, 1969. In view of the foregoing, the questioned order of the trial court dated December 24, 1974, is hereby SET ASIDE.

B: Legal or Intestate succession is inexplicably not defined. Curiously, the draft code contained a definition of this kind of succession but for some unknown reasons it was not included. It stated that an “Intestate succession takes place by operation of law in the absence of a valid will.” Art. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a) T: A void will has no legal existence. A void will and a will that later lost its validity are essentially the same. The only difference between the two lies in the fact that the first refers to a will that has never been valid, but is null and void ab origine, ipso facto, while the second refers to a valid will which later lost its validity. Under Art. 841 a will is valid though there is no institution of heir. In such cases the testamentary dispositions made in accordance with law shall be carried out, and the remainder of the property shall pass to legal heirs. Absence of institution includes those institution which are void. Other causes of intestacy: 1. 2.

E. Kinds of Succesion 3. Art. 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or

4.

happening of a resolutory condition which sets aside the institution of the heir expiration of the resolutory term or period of institution of an heir, legatee or devisee instituted up to a day certain noncompliance or the impossibility of complying with the will of the testator. Preterition which results to annulment of the institution of an heir

B: There are three instances contained in this paragraph, although, legally, the result is the same in each instance, i.e., there is no will.

(3) Mixed. (n) In par. 2 “validity” should read as “efficacy” Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. (n)

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Intestacy may be total or partial depending on the extent of the disposition that turns out to be inoperative

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Wills & Succession/ Atty Uribe Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n) Art. 130. The future spouses may give each other in their marriage settlements as much as one-fifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession. Art. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law.

marriage settlement but in a will or testament. Its limits are governed by the rules of testamentary succession. Since a will can be revoked by the testator at any time before his death the donation propter nuptias of future property may be so revoked. Persons other than the affianced parties cannot give donations propter nuptias of future property. There is no more contractual succession by virtue of the the repeal of Article 130 of the Old Civil Code which was amended under Article 84 of the Family Code. In mandating the applicability of the rules on Succession to donation of future property between spouses, the law, therefore, eliminated this kind of succession. Hence, by implication such type of succession under Article 84 is considered an ordinary testamentary succession.

All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract.

TESTAMENTARY SUCCESSION

Art. 752. The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will. The donation shall be inofficious in all that it may exceed this limitation. (636)

A. Definition

The limitation imposed by this article applies to persons who have compulsory heirs. The amount that can be donated depends upon the character of the compulsory heirs and the amount of property at the time of the death of the donor. The donation itself is not a nullity, but only subject to reduction in so far as it exceeds what the donor could have given by will to the donee. This amount is determinable only at the time of the death of donor. Art. 750. The donations may comprehend all the present property of the donor, or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced in petition of any person affected. (634a) A donation of all the present property of the donor, without the reservation of a sufficient amount for his subsistence, is not void, but only susceptible of reduction. It is voidable with respect to the amount necessary for the support of the donor or his dependent relatives.

Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a) These donations, unlike donations of present property which take effect upon the celebration of the marriage, take effect upon the death of the donor spouse. It cannot be made in the

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II. WILLS

Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. (667a) Better definition: A will is a personal, solemn, revocable, and free act by which a capacitated person disposes of his property and rights and declares or complies with the duties to take effect after his death. T: A will is a specie of conveyance whereby a person is permitted, with the formalities prescribed by law to control to a certain degree disposition of his property to take effect after his death. However, when there is no disposition of property, it is submitted that, although the instrument may be considered as a will, it does not have to be probated. All other relevant legal matters stated in the will may take effect even without probating such as the acknowledgement of a natural child. A will is not necessarily an act of liberality or generosity. The inheritance may be so burdened with legacies that all benefit to the heir is nullified. B. Characteristics 1. 2. 3. 4. 5. 6. 7. 8.

purely personal act; free act w/o fraud, violence, etc. disposition of property essentially revocable formally executed testator must have testamentary capacity Unilateral act and; Mortis causa

Balane: 9. individual (Art. 818) 10. executed with animus testandi (Art. 783) 11. Statutory (Art. 783)

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Wills & Succession/ Atty Uribe Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. (667a) B: The word “Act” is too broad and should have been limited to a more specific term such as instrument or document in view of Art. 804 that every will must be in writing. The requirement of form prescribed respectively for attested and holographic wills. The testator’s power of disposition is limited by the rules on legitimes. Will making is purely statutory being defined as “permitted”.

Art. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (n) B: This is an exclusive enumeration for the causes of disallowance of a will. These are matters involved in the formal validity. A probate decree once final , forecloses any subsequent challenge on any of the matter enumerated in this article. If any of these grounds is proved the will is void. A will is either valid or void. If none of the defects are present the will is valid; if any defect is present the will is void. The issue on formal validity is what the probate proceedings will determine. There is no such thing as a voidable will. Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a) T: During the life of the testator the will is said to be ambulatory and may be altered, revoked, or superseded at any time. Its is of no possible effect as a will while the maker lives. A will may be revoked at pleasure. Revocation is an act of the mind, terminating the potential capacity of the will to

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operate at the death of the testator, manifested by some outward and visible act or sign, symbolic thereof. Revocation 1. act of testator law

vs.

2. presupposes a valid act 3. inter vivos 4. testator cannot renounce

Nullity 1. proceeds from

2. inherent from the will 3. invoked After death 4. can be disregarded by heirs

B: This characteristic is consistent with the principle laid down in Art. 777, successional rights vest only upon death. Art. 796. All persons who are not expressly prohibited by law may make a will. (662) T: The law presumes capacity to make a will, thus, one must be expressly be prohibited by law to be disqualified. Only natural persons may make a will. Juridical persons are not granted T.C. Even spendthrifths or prodigal under guardianship, can make a will. A peson under civil interdiction can make a will, he is only disqualified fro dispositions of property inter vivos, but not by act mortis causa. Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n) The manner of computation of age, sustains the view that the required age is reached at the commencement of the day preceeding the anniversary of the birthday; that is, it is sufficient that the last day of the eighteenth year shall have commenced. The law does not recognize fractions of a day and this construction is more in accord with the liberal policy of the law to presume capacity to make will. Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n) T: Sound Mind is meant that the testator is able to execute his will with an understanding of the nature of the act, such as the recollection of the property he means to dispose of, of the persons who are or who moght reasonably be the objects of his bounty and the manner in which it is to be distributed among them. It is sufficient if he understands what he is about, even if he has less mental capacity than would be required to make a contract. B: the legal importance and implication of mental capacity is that the law is interested in the legal consequences of the testator’s mental capacity or incapacity not in the medical aspects of mental disease. Concievably, the testator could be mentally aberrant medically but testamentarily capable or, vice versa, mentally competent medically but testamentariy incompetent. Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a) B: the vesting of the successional right occurs immediately upon the decedent’s death, without a moments interruption.

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Wills & Succession/ Atty Uribe Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669) T: A joint will is one where the same instrument is made the will of two or more persons and is jointly signed by them. Such will may be probate upon the death of one and subsequently probated again upon the death of the other testator. Usually made to dispose joint properties. Mutual will, OTOH, may be defined as the separate wills of two persons, which are reciprocal in their provisions. A will that is both joint and mutual is one executed jointly by teo or more persons and which shows on its face that the devises are made one in consideration of the other. Ratio for prohibition: 1. 2.

3. 4. 5. 6.

purely personal and unilateral characteristic of wills are defeated contrary to the revocable character of wills, if one revokes the will no document is left for the other to revoke specially in cases were the revocation is done by destroying or tearing the will. may expose a testator to undue influence may tempt one to kill the other testator against public policy Dimunition of Testamentary secrecy

What is actually prohibited, therefore, is the execution of a will in a SINGLE DOCUMENT and by ONE ACT.

2. 3.

the duration or efficacy of such designation including such things as conditions, terms, substitutions the determination of the portions they are to recieve

Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. (671a) T: the third person here does not make any disposition, but simply carries out details in the execution of the testamentary disposition made by the testator himself in the will. B: for this article to take effect the testator must determine the ff: 1. 2.

the property or amount of money given and; the class or cause to be benefited

and the ff. may be delegated: 1. 2.

designation of persons, institutions, establishments within the class or cause; the manner of distribution.

or

Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (n) C. Interpretation of Wills

B: if there are separate documents, each serving one independent will, even if they are written on the same sheet or even back to back, they are not joint wills. Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a) T: The testator cannot substitute the mind or will of another for his own. But the mere mechanical act of drafting the will may be done by a third person, inasmuch as such act does not constitute a delegation of the will or disposition. Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a) T: The matters mentioned in this article are testamentary in nature; they constitute expressions of the will or disposition of the testator. Hence, pursuant to Art. 784, it cannot be delegated. B: The ff. constitute the essence of will making or the exercise of the disposing power, and thus, non-delegable: 1.

Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (n) T: The presumption is that the testator intended a lawful rather than an unlawful thing, and courts will not seek an interpretation that will nullify his will or any part thereof.That construction must be followed which will sustatn and uphold the will in all its parts, if it can be done consistently with the established rules of law. If the will is susceptible of two interpretations , the doubt must be resolved in favor of the construction which will give effect to the will, rather than the one which will defeat it. Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n)

the designation of heirs, devisees, legatees;

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Wills & Succession/ Atty Uribe T: The first part of this article pertains to patent or extrinsic ambiguity which appears upon the face of the instrument such as when the testator gives a devise or legacy to “SOME of the six children of his cousin Juan” The second part pertains to latent or intrinsic ambiguity which cannot be seen from a mere perusal or reading of the will but appears only upon consideration of extrinsic circumstances, such as giving legacy to “my cousin Pedro”, when I fact he has two cousins named Pedro. Thus. It occurs when: 1. 2.

two or more persons or things answer the name or description; misdescription of the beneficiary or the gift

Extrinsic evidence is admissible to show the situation of the testator and all the relevant facts and circumstances surrounding him at the time of making the will, for the purpose of explaining or resolving patent ambiguity. B: method of resolving ambiguity, whether latent or patent is any evidence admissible and relevant excluding the oral declarations of testator as to his intention. Ratio for the exclusion: B: can a dead man refute a tale? T: the testator whose lips have been sealed by death can no longer deny or affirm the truth of what witnesses may say he declared, would create confusion and give rise to false claims. Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. (675a) Intent of the testator is the supreme law in succession. All rules of construction are designed to ascertain and give effect to the intention unless the latter is contrary to law, morals, and public policy. The words and provisions in the will must be plainly construed in order to avoid violations of his intentions and real purpose. Wills drated by skilled persons or lawyers are to be construed with strictness giving account to the word’s technical meaning, while words stated by persons not learned in the law are interpreted liberally and in their ordinary acceptation. Holographic wills usually made by pesons not learned in the law should be construed liberally in their ordinary acceptation foregoing the technical meaning in pursuance of the policy of the law of preference on testacy than intestacy. Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of

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interpreting a will, that is to be preferred which will prevent intestacy. (n) Its to be presumed that every word or clause was intended by the testator to have some meaning; and no word or clause should be rejected if it is at all possible to give it reasonable effect. Where two constructions are possible, the one disregarding a word or clause of the will, and the other giving effect to the will as a whole, th latter interpretation must be followed. Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n) B: The article makes applicable to wills the severability or separability principle in statutory construction frequently provided in a separability clause. Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n) T: This article is inconsistent with the principle of inheritance laid down under the code. The inheritance includes all the property, rights, and obligations not extinguished by death. To follow this article would mean that only the property at the time of making the will shall be transmitted to the heir unless there is an express declaration under the will to include properties acquired before death of testator but after making the will. This contravenes Art. 777 of the code. Hence, it must be construed as referring only to devises and legacies and not to inheritance. After all this article is under the chapter of testamentary dispositions. The problem now arises with its irreconcilable conflict with Art. 930. Art. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n) T: When the Testator does not state the extent of the interest that he gives to the legatee or devisee in the property transmitted, it is understood that his whole interest passes, no more no less. But the testator, under the present article, may manifest his intention to convey a less interest; and under article 929, he may expressly convey a larger interest. In such cases, the intention of the testator will be followed.

Art. 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. (862a)

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Wills & Succession/ Atty Uribe The presumption under this article is that had the testator known the fact that another owns the property, he would not have made the legacy. The ignorance of the testator is presumed by law. Its must be noted that if the subsequent change of ownership transferred the thing to the very person to whom it was being given as a devise or legacy, and by lucrative title, or to another third person, the legacy is void.

restrict the application of the words "all that I have here ordered" used by the said Maria Solla and the words "all her orders" used by Leandro Serrano in their respective wills limiting them to the pious orders and substituting the phrase "in regard to the annual masses" after the words used by both testators, respectively. The trial court, therefore, committed an error in interpreting the order of Leandro Serrano mentioned in his will as applicable to the provisions of Maria Solla's will relative to the legacies and not to the pious bequests exclusively.

Solla vs. Ascuenta D. Law Governing Form Dña. Maria Solla died in June, 1883, in the municipality of Cabugao, Ilocos Sur, leaving a will executed and recorded in accordance with the laws then in force, but which had not been probated in accordance with the Code of Civil Procedure. There were named in said will, as legatees Sergio Solla, Cayetano Solla, Josefa Solla, Jacinto Serna, Rosenda Lagmay, Silvestra Sajor and Matias Sevedea, and Leandro Serrano, as universal heir, with their shares given them by the will abovementioned. Said legatees or their descendants or heirs did not judicially claim their legacies during the life-time of Leandro Serrano, of which he had taken possession, neither was any testamentary proceeding instituted for the settlement of the estate left by Maria Solla and that Leandro Serrano did not deliver the legacies in question, which he possessed in his name until his death, having declared the property for taxation as his own and collected the income therefrom for himself. As may also be seen Leandro Serrano named his son Simeon Serrano, as executor of his will and that he directed him to put all of his property in order and to separate that which came from his deceased grandmother Maria Solla, which he gives to his said son Simeon Serrano and orders that same be disposed of exclusively in conformity with the wishes of his said grandmother, not forgetting the souls of all of his grandmother's relatives and of his own for whose repose nine masses were to be said annually during nine days, with a solemn mass on the first and last days. In order to determine the testator's intention, the court should place itself as near as possible in his position, and hence, where the language of the will is ambiguous or doubtful, should take into consideration the situation of the testator and the facts and circumstances surrounding him at the time the will was executed. (40 Cyc., 1392.) Where the testator's intention is manifest from the context of the will and surrounding circumstances, but is obscured by inapt and inaccurate modes of expression, the language will be subordinated to the intention, and in order to give effect to such intention, as far as possible, the court may depart from the strict wording and read a word or phrase in a sense different from that which is ordinarily attributed to it, and for such purpose may mould or change the language of the will, such as restricting its application or supplying omitted words or phrases. (40 Cyc., 1399.) In the present case, it clearly appearing that it was Maria Solla's intention, in ordering her universal heir Leandro Serrano in her will at the hour of his death, to insist upon the compliance of her orders by his heirs, that the latter should comply with her pious orders and that she did not mean her orders concerning her legacies, the compliance of which she had entrusted to Leandro Serrano, we are authorized to

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Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n) The general rule is that given in the present article, that the validity of the execution of a will is controlled by the statute in force at the time of execution; and a statute enacted subsequent to the execution and prior to the death of the testator, changing the rules respecting the form of the instrument, the capacity of the testator, and the like, has no retrospective effect. However, the intrinsic validity of the will, although executed in the Philippines, is governed by the laws of the state or country of which the testator was a citizen or subject at the time of his death. The place of execution has no effect whatever upon the validity of the provisions of the will. The law may be changed after the will has been made. The provisions may be valid at the time it was made but may be contrary to the law at the time of the death of the testator. In such case, the law at the time of the death of the testator will apply. It is the law at the time when the succession opens which must determine the intrinsic validity of the provisions of the will, because it is at this time that the rights are transmitted to the heirs, devisees, or legatees.

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a) Art. 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code. (16a)

Matters connected with the performance of contracts are regulated by the law prevailing at the place of performance.

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Wills & Succession/ Atty Uribe Remedies, such as the bringing of suit, admissibility of evidence, and the statute of limitations, depend upon the law of the place where the action is brought.

persons and which shows on its face that the devises are made one in consideration of the other. Ratio for prohibition:

In terms of the validity and effect of obligations, the following rules shall be followed. First, the law designated by the parties shall be applied; if there is no stipulation on the matter, and the parties of the same nationality, their national law shall be applied; if this is not the case, the law of the place of perfection of the obligation shall govern its fulfillment; but if these places are not specified and they cannot be deduced from the nature and circumstances of the obligation, then the law of the domicile of the passive subjects shall apply. Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a) Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n) The article follows the general rule that the law governing the formal vailidity of wills is the law of the place where it is executed. Yet a Filipino may make will in a foreigh country in conformity with our laws and not of the place of execution. Article 816 and 817 shall govern. Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n) Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n) If an alien executes a will in the Philippines, not in conformity with our law, but in conformity with the law of his own state or country, the will can be probated in the Philippines. Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669) A joint will is one where the same instrument is made the will of two or more persons and is jointly signed by them. Such will may be probate upon the death of one and subsequently probated again upon the death of the other testator. Usually made to dispose joint properties. Mutual will, OTOH, may be defined as the separate wills of two persons, which are reciprocal in their provisions. A will that is both joint and mutual is one executed jointly by teo or more

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a. b.

c. d. e.

purely personal and unilateral characteristic of wills are defeated contrary to the revocable character of wills, if one revokes the will no document is left for the other to revoke specially in cases were the revocation is done by destroying or tearing the will. may expose a testator to undue influence may tempt one to kill the other testator against public policy

What is actually prohibited, therefore, is the execution of a will in a SINGLE DOCUMENT and by ONE ACT. Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (733a)

Fleumer vs. Hix It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed. While the appeal was pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing purporting to be the last will and testament of Edward Randolph Hix, deceased, was presented for probate on June 8, 1929, to the clerk of Randolph County, State of West Virginia, in vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L. Madden, the subscribing witnesses thereto, and ordered to be recorded and filed. It was shown by another document that, in vacation, on June 8, 1929, the clerk of court of Randolph County, West Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix,

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Wills & Succession/ Atty Uribe deceased. In this connection, it is to be noted that the application for the probate of the will in the Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June 8, 1929. These facts are strongly indicative of an intention to make the Philippines the principal administration and West Virginia the ancillary administration. However this may be, no attempt has been made to comply with the provisions of sections 637, 638, and 639 of the Code of Civil Procedure, for no hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. There is no showing that the deceased left any property at any place other than the Philippine Islands and no contention that he left any in West Virginia. Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of West Virginia. The present proceedings do not call for any specific pronouncements on the validity or invalidity of this alleged divorce.For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance against the appellant.Villamor, Ostrand, Johns, Romualdez and VillaReal, JJ., concur.

Dela Cerna vs. Potot "It appears that on May 9, 1939, the spouses, Bernabe de la Cerna and Gervasia Rebaca, executed a joint last will and testament in the local dialect whereby they willed that 'our two parcels of land acquired during our marriage together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot', and that 'while each of the testator is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned', the said two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe de la Cerna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after due publication as required by law and there being no opposition, heard the evidence, The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament, despite the fact that even then the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional errors, judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis sit litium (Dy Cay vs. Crossfield, 38 Phil. 521, and other cases cited in 2 Moran, Comments on the Rules of Court 1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this count, the dismissal of their action for partition was correct. But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1939 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the Civil Code, a will could not be probated during the testator's lifetime. It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo (from the beginning), since a joint will is considered a separate will of each testator. Thus regarded, the holding of the Court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil., 267. Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance. E. Law Governing Content 1. As to time Art. 2263. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. (Rule 12a) The decisive fact which gives origin to the right of heirs, devisees and legatees is the death of the decedent. This is the basis of the present article. Thus, the provisions of the new code relaxing the rigidity of the rules of the old code regarding proof or recognition of natural children, were held inapplicable to one claiming recognition and a share in the estate of the alleged natural father who died before the new code went into effect. 2. As to successional rights

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Wills & Succession/ Atty Uribe Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a) The distribution of the estate is governed by the law of the nation of the deceased; the present article applies in such case. It may involve various questions such as: 1.

order of succession in intestacy

2.

intrinsic validity of a will

3.

extent of property an heir is entitled

4.

capacity to succeed of heirs

5.

questions of preterition, disinheritance, and collation.

In above cases, the national law of the decedent applies and the ratio of which is stated by Dean Capistrano in this wise: With regard to succession there is only one will, express in testatmentary and presumed in intestate succession. The oneness and universality of the inheritance cannot be divided or broken up merely because of the different countries where the properties of the estate are situated. The intrinsic validity of the provisions of the will of a foreigner who dies in the Philippines is to be determined by the laws of his own state or country, and not by those of the Philippines. The second paragraph of this article can only invoked when the deceased eas vested with a descendible interest in property within the jurisdiction of the Philippines. When a foreign law is invoked it must be proved. (fluemer vs. Hix) In re the estate of Amos G. Bellis Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, and Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis, and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.

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Subsequently, or on July 8, 1958, Amos G. Bellis died, a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that — "Art 16. Real property as well as personal property is subject to the law of the country where it is situated. "However", intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found." "Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent." Appellants would however counter that Article 17, paragraph three, of the Civil Code, stating that — "Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws, or judgments promulgated, or by determinations or conventions agreed upon in a foreign country." prevails as the exception to Art. 16, par. 2 of the Civil Code aforequoted. This is not correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate successions. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress

25

Wills & Succession/ Atty Uribe has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national Law. Specific provisions must prevail over general ones.

petitioner in the instant case which was granted by the court on September 13, 1982.

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

HELD: YES

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Cayetano vs. Leonides 129 SCRA 522 On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos. Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix. In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last will and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix' death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wills at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines. Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his children and forced heirs as, on its face patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as

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ISSUE: Whether or not a compulsory heir may be validly excluded by a will executed by a foreign testator?

RATIO: Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide: Art. 16 par. (2)."However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found." Art. 1039."Capacity to succeed is governed by the law of the nation of the decedent." the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law. It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16 (2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:"It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. III. TESTAMENTARY CAPACITY A. Who may make a will? Art. 796. All persons who are not expressly prohibited by law may make a will. (662) Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n) Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n) Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.

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Wills & Succession/ Atty Uribe It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n) B: requisite of sanity to execute a will is based on the testator’s ability to know three things: 1.

2.

3.

Nature of the estate to be disposed- the testator should have a fairly accurate knowledge of what he owns. Accurate should be understood in the relative sense. The more one owns the less accurate is one’s knowledge of his estate expected to be. Henry Sy might have a far less accurate picture of his economic empire than a poverty stricken laborer. Proper objects of his bounty- under ordinary circumstances, the testator should know his relatives in the proximate degrees. As the degree of relationship goes further, it is less likely that he knows them. Character of the testamentary act- it is not required, in order for this requisite to be present, that the testator know the legal nature of a will with the erudition of a civilest. All that he need know is that the document he is executing is one that disposes of his property upon death.

T: Neither sickness, old age, deafness, senile debility, blindness, nor poor memory is by itself sufficient to establish a presumption of lack of testamentary capacity, actual insanity need not exist in order that a person may be said to lack testamentary capacity. It is enough that the mental condition be such that there is want of understanding of the nature and consequences of the disposition by will. Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n)

conjugal partnership property.

or

absolute

community (n)

B. Supervening Incapacity Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n) The capacity of the person who leaves a will is to be determined as of the time of execution of such will. Any prior or subsequent incapacity will not affect the validity of the will. It will, however, in cases of prior incapacity within 30 days from the making of the will merely shift the burden of proof of capacity on the person maintaining the validity of the will. (Art. 800) IV. SOLEMNITIES OF WILLS A. Kinds of Wills Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)

Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a) T: the following are the advantages of a holographic will: 1. simple and easy to make for those a) who have no means to employ a lawyer, b)who are timid and wants to reread their wills before signing, c) those who have only very little property to dispose 2. It induces foreigners in this jurisdiction to set down their last wishes; 3. guaranties the absolute secrecy of the testamentary disposition because it is not witnessed.

Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n)

The disadvantages are:

The capacity of the person who leaves a will is to be determined as of the time of execution of such will. Any prior or subsequent incapacity will not affect the validity of the will. It will, however, in cases of prior incapacity within 30 days from the making of the will merely shift the burden of proof of capacity on the person maintaining the validity of the will. (Art. 800)

2. no protection against vices of consent which may not be known in case of death;

Art. 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n) Art. 803. A married woman may dispose by will of all her separate property as well as her share of the

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1. does not gauranty testamentary capacity of testator;

3. due to faulty expression, it may not express the true will of the testator; 4. for the same reason, it can be easily concealed. May a blind testator make a valid holographic will? There is no question as to notarial wills it being allowed under the law provided the will was read twice to the testator. As to holographic wills, it is submitted that it may be allowed. The testator, having written the holographic will by his own hand, knows what it contains. He may have learned to write before

27

Wills & Succession/ Atty Uribe he became blind, or inspite of his blindness. This view has been sustained in Louisiana, where it has been held that blindness does not of itself prevent the making of a valid holographic.

part of the testamentary disposition. The language used in the attestation clause does not even have to be known to the witness; it should, however, be translated to them.

A HW may be in any form, but the intent to dispose mortis causa must clearly appear in the context.

Suroza vs. Hon. Honrado

What would be the effect of words written by another and inserted among the words written by the testator? 1. if insertion was made after execution bu w/o consent, such is deemed not written; 2. if the insertion was after execution with the consent of testator, the will remains valid but the insertion void; 3. if insertion was after execution and validated by testator by his signature, the entire will is void because it is not wholly written by the testator himself; 4. if insertion is contemporaneous to the execution the effect same as no. 3. As to date, the day, month, and year on which the will was made should be indicated therein. The day and the month, however, may be indicated by implication, so long as the designation leaves no room for doubt as to exact date. The validity of the holographic will is defeated by the fact that part of the date is printed. Such as that written on a daily planner though the contents are entirely written by the hand but the testator relied on the date indicated on the planner, the same is still extrinsically void. Signatures of witnesses to a HW will not invalidate the will, but will be disregarded as a mere surplusage. B. Notarial Wiils 1. General Requirements Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n) Our law does not recognize nuncupative wills, which is one that is not written, but orally declared by the testator in his last illness, in contemplation of death, and before a sufficient number of competent witnesses. The above requirement applies to both holographic and notarial. In notarial wills it is immaterial who performs the mechanical act writing the will, so long as the testator signs it or has somebody sign his name in his presence upon his direction. As to the language or dialect, when a will is executed in a certain province or locality, in the dialect currently used in such province or locality, there arises a presumption that the testator knew the dialect so used, in the absence of contrary evidence. It is not required that the will express that the language is known by the testator it is a fact which may be proved by evidence aliunde. The attestation clause of an ordinary will does not have to be written in a language or dialect known to the testator. It is not

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Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy named Agapito who used the surname Suroza and who considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654, p. 148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in 1923). Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government. That explains why on her death she had accumulated some cash in two banks. Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in 1953 when he was declared an incompetent in Special Proceedings No. 1807 of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R) In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate case) Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto, California (p. 87, Record) On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No. SP-08654-R). Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street. Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will, which is in English, was thumb marked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumb marked by her (pp. 38-39, CA Rollo). In that will, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn. On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit opposition with counterpetition of administration and preliminary injunction." Nenita in that motion reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed and attested, that it was procured by means of undue influence

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Wills & Succession/ Atty Uribe employed by Marina and Marilyn and that the thumb marks of the testatrix were procured by fraud or trick. About ten months later, in a verified complaint dated October 12,1978, filed in this Court, Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her thumb mark to the will and that she did not know English, the language in which the will was written. (In the decree of probate Judge Honrado did not make any finding that the will was written in a language known to the testatrix). Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not take into account the consequences of such a preterition. We hold that disciplinary action should be taken against respondent judge for his improper disposition of the testate case which might have resulted in a miscarriage of justice because the decedent's legal heirs and not the instituted heiress in the void will should have inherited the decedent's estate. A judge may be criminally liable for knowingly rendering an unjust judgment or interlocutory order or rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal Code) In this case, respondent judge, on perusing the will and noting that it was written in English and was thumb marked by an obviously illiterate testatrix, could have readily perceived that the will is void. In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language." (p. 16, Record of testate case) That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of Article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660) The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix." Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive. Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was not presented as a witness. In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly executed. Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.

2. Specific Requirements Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n) T: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid sunstitution of wills and testaments and to gauranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. Both one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. Signed by Testator Signing is making a sign, token, or emblem; and what that shall be depends upon the individual. The material thing is that the testator made the mark to authenticate the writing as his will and whatever he puts on it for that purpose will suffice. Attested and subscribed by witnesses Attestation is the act of the senses, subscription is the act of the hand; one is mental, the other is mechanical. To attest a will is to know that it is published a such, and to certify the facts required to constitute an actual legal publication; but to subscribe a paper as a will is only to write on the paper the names of the witnesses, for the sole purpose of identification. To attest as witness to a will is therefore to observe, perceive, discern, and take notice of what is done in executing a will. The witness subscribe with his hand, and attest with his eyes and ears. Purpose of attesting and subscribing: 1. 2. 3.

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identification of the instrument; protection of testator fraud and deception and other vices of consent; to ascertain the TC of the testator

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Wills & Succession/ Atty Uribe the witnesses need not even know the contents of the will because what they attest to is the due execution and the signing of the testator. It is presumed that a witness has the qualifications prescribed by law, unless the contrary is established. His credibility depends upon the appreciation of his testimony and arises from the belief and appreciation of the court that he is telling the truth. His competency arise or is required to exist at the time of execution of the will. As to order of signing, there are two views: Strict approach; The general rule has been, that everything required to be done by the testator in the execution of a will shall precede in point of time the subscription by the attesting witness, and if the signatures of the latter precede the signing by the testator there is no proper attestation, and the will is void, for until the testator has signed, there is no will and nothing to attest. Liberal approach; where the witnesses and the testator all sign in the presence of one another, it is not essential that the testator sign first, if the signing and the attestation be parts of the same transaction; in such case, where the acts are substantially contemporaneous, it cannot be said that there is any substantial priority. The latter view is upheld by most courts. In the absence of proof to the contrary, it will be presumed that the testator signed first. Purpose of requiring presence of each other: 1. 2. 3.

to prevent another paper being substituted for the will fraudulently; so that each may be a witness of the other and; to render fabrication of testimony more difficult.

When testator is blind; when witness subscribe his will in the same room or within reasonable close proximity and within his hearing, they subscribe in his presence. Evidently, the rule is that they should be within the cognizance of his remaining senses, such that he knows what is being done. The testator and witnesses must sign on the left margin of every page, the failure of all of them to sign the left margin is a fatal defect The purpose of numbering of pages is to afford a means for determinig whether any sheet or page of the will has been removed. Except only when will was written on a single page. An attestation clause is a memorandum of facts attending the execution of the will and is that part of the instrument wherein the witnesses certify that the instrument has been executed before them, and the manner of execution. The attestation clause duly signed is the best evidence as to date of signing

independent attestation clause, but the concluding paragraph of the body of the will was written in the tenor of an attestation, stating the facts required by law to be set forth in an attestation clause, and the penultimate paragraph of the will stated the number of pages used, it was held to be sufficient though in the first person and signed by the testator provided it was signed by the witnesses. Any failure to state a material fact in the attestation clause will render the will null and void. Oral evidence will not cure any alleged defect because the statute of frauds does not apply to wills. The statute relates to contracts and agreement only this may be cured by the oral ratification of the parties. Date- in an ordinary will date is not an essential part. Only HW requires a date. Neither a statement of the place of execution is required and the absence of both facts does not invalidate the will. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. (n) T: This article applies only to ordinary or attested wills. It has no application to a holographic will which does not have to be witnessed. Since acknowledgement before a notary public must be made by the testator and the witness, it is obvious that the law contemplates only ordinary wills. The signing of the will by the testator and the witnesses, and the acknowledgement of said will before a notary public need not be done in a single act unlike the in the old code because his presence is required due to the fact that he prepares the will. Under the present code, it is enough that the testator and witnesses acknowledge to him its execution for such acknowledgement is indispensable for the validity of the will. An interval of time may elapse between the actual signing of the will and the acknowledgement before the notary public. It is important also that testamentary capacity must exist also at the time of acknowledgement, because this is an essential part of the execution of the will. The purpose of acknowledgement is to minimize fraud and undue pressure and this purpose can be attained whether acknowledgement takes place at the same time at same time as the signing or at some time thereafter. The prohibition under this article on the retention of a copy by the notary is grounded on the desire of the testator to safeguard the secrecy of the contents of the will during the lifetime of the testator so he will not be the object of importunities or pressure to change his will on the part of designing persons or relatives, or it may be that the testator wants to keep the secret of the will during his lifetime. B: Special Requirements of attested wills are as follows 1.

subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence of the witnesses

The law does not require the attestation to be contained in a single clause. Thus, where a will did not contain a separate

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Wills & Succession/ Atty Uribe 2. 3. 4. 5. 6.

attested and subscribed by at least three credible witnesses in the presence of the testator and of one another; the testator or his agent must sign every page except the last, on the left margin in the presence of the witnesses; the witnesses must sign every page except last, on the left margin in the presence of the testator and of one another; all pages numbered correlatively in letters above page; attestation clause stating: a. b. c.

7.

number of pages; testator or his agent under his direction signed the will and every page thereof, in the presence of the witnesses; the witnesses witnessed and signed evry page in the presence of testator and of one another;

acknowledged before a notary public

Garcia vs. la Cuesta This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause: "We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all of them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses. "In testimony, whereof, we sign this testament, this the third day of January, one thousand nine hundred forty three, (1943) A.D. (Sgd.) (Sgd.)

"NUMERIANO EVANGELISTA ROSENDO CORTES BIBIANA ILLEGIBLE"

(Sgd.)

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgment of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the

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will in all the pages thereon in the presence of the testator and of each other. In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of a cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark. What has been said makes it unnecessary for us to determine whether there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other. Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So ordered. Balona vs. Abellana Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta Abellana. "It appears on record that the last Will and Testament (Exhibit 'A'), which is sought to be probated, is written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and under his name appears typewritten 'Por la testadora Anacleta Abellana, residence Certificate A1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears the signature of the three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. On the second page, which is the last page of the said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase, 'Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public, Attorney Timoteo de los Santos." (Italics supplied.) The present law, Article 805 of the Civil Code, in part provides as follows:

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Wills & Succession/ Atty Uribe "Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another." (Italics supplied.) Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the testator's name must be written by some other person in his presence and by his express direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., 4 Phil., 700: "It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, the notary certifying thereto as provided in article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary that the testator's name be written by the person signing in his stead in the place where he would have signed if he knew how or was able so to do, and this in the testator's presence and by his express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated. The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. Cases of the same import are as follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489). In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by Some other person in his presence and by his express direction. It appearing that the above provision of the law has not been complied with, we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate. Nera vs. Rimando The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument.

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A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased. The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature." In the case just cited, on which the trial court relied, we held that: "The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature." But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.

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Wills & Succession/ Atty Uribe The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant. Garcia vs. la Cuesta This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause: "We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all of them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses. "In testimony, whereof, we sign this testament, this the third day of January, one thousand nine hundred forty three, (1943) A.D. (Sgd.) (Sgd.)

"NUMERIANO EVANGELISTA ROSENDO CORTES BIBIANA ILLEGIBLE"

(Sgd.)

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgment of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other. In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil.,

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848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of a cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark. What has been said makes it unnecessary for us to determine whether there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other. Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So ordered. Taboado vs. Rosal In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three 13) attesting witnesses and at the left hand margin by the testatrix. Since no opposition was filed after the petitioner's compliance with the requirement of publications, the trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution. The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the summary settlement of the estate. The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but all the three subscribing witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page. On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the will that the signatures of the subscribing witnesses should be specifically located at the end of the will after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures

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Wills & Succession/ Atty Uribe are found is consistent with good faith and the honest frailties of human nature. For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another? Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. It must be noted that the law uses the terms attested and subscribed. Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911). Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of identification. The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code Commission, p. 103). The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order. We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page." The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or passes composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the

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deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations." " . . . Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses, did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attest to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.'" WHEREFORE, the present petition is hereby granted. The orders of the respondent Court which denied the probate of the will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set aside. Icasiano vs. Icasiano This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor thereof. The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also present during the execution and signing of the decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one original and two copies of Josefa

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Wills & Succession/ Atty Uribe Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan. The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every page. Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence. We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same had which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel that with so few standards the expert's opinion and the signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right the original. These, factors were not discussed by the expert. Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another occassion. It is also well to

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note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will. On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause". This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege. The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional. That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition.

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Wills & Succession/ Atty Uribe IN VIEW OF THE FOREGOING, the decision appealed from is affirmed Cruz vs. Villasor Petition to review on certiorari the judgment of the Court of First Instance of Cebu allowing the probate of the last will and testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased, opposed the allowance of the will (Exhibit "E"), alleging that the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was executed without the testator having been fully informed of the contents thereof, particularly as to what properties he was disposing; and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament. Hence this appeal by certiorari which was given due course.

in the aforecited cases merely acted as instrumental, subscribing or attesting witnesses, and not as acknowledging witnesses. Here the notary public acted not only as attesting witness but also as acknowledging witness, a situation not envisaged by Article 805 of the Civil Code. To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 805 requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for that purpose. In the circumstances, the law would not be duly observed. Gabucan vs. Manta

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

This case is about the dismissal of a petition for the probate of a notarial will on the ground that it does not bear a thirtycentavo documentary stamp.

Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged.

The proceeding was dismissed because the requisite documentary stamp was not affixed to the notarial acknowledgment in the will and, hence, according to respondent The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-centavo documentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977 Tax Code. Judge, it was not admissible in evidence, citing section 238 of the Tax Code.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow, assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements. Balinon v. De Leon, 50 O. G. 583.) That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For them he would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. It would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud (Report of the Code Commission p. 106-107), would be thwarted. These authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein, because the notaries public and witnesses referred to

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The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in Special Proceeding No. 41 for the probate of the will of the late Rogaciano Gabucan, dismissed the proceeding (erroneously characterizes as an "action").

We hold that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will, there was "no will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed." What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document. That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which does not bear the requisite documentary stamp, subsists only "until the requisite stamp or stamps shall have been affixed thereto and cancelled." Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence (Del Castillo vs. Madrileña, 49 Phil. 749) If the promissory note does not bear a documentary stamp, the court should have allowed plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document does not invalidate such document. See Cia. General de Tabacos vs. Jeanjaquet, 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar, 16 Phil. 403, 405-6.)

Javellana vs. Ledesma By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect,

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Wills & Succession/ Atty Uribe marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said exhibits were not executed in conformity with law. The appeal was made directly to this Court because the value of the properties involved exceeded two hundred thousand pesos. Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court below, where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective. These questions are the same ones presented to us for resolution. The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement that no one would question it because the property involved was exclusively hers. At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses must sign in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in the case before us. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno eodem die ac tempore in eadem loco", and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed.

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The decision admitting the will to probate is affirmed, with costs against appellant. Witnesses to a will d.

who are competent?

Art. 820. Any person of sound mind and of the age of eighteen years or more, and not bind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code. (n) T: these are witnesses under an ordinary will. B: Six qualifications of a witness: 1. sound mind; 2. 18 years of age; 3. not blind, deaf or dumb,; 4. literateor able to read and write; domicile in the Philippines;6. not convicted of a crime involving, falsification, perjury, or false testimony. Art. 821. The following are disqualified from being witnesses to a will: (1) Any person Philippines;

not

domiciled

in

the

(2) Those who have been convicted of falsification of a document, perjury or false testimony. (n) T: The law requires that the witness be domiciled in the Philippines mere residence is not sufficient. Domicile under Art. 50, Art. 50. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. (40a) Ratio of domicile requirement: 1. 2.

availability of witness when will is probated if the same is within the Philippines; witness domiciled in the Philippines more likely to know the testator and be ablr to testify on his mental condition at the time of execution of the will.

Except of course if the will was executed in a foreign country the domicile requirement does not apply. There is citizenship requirement only domicile requirement. Even aliens may witness as long as they are domiciled here. As to conviction of perjury, falsification, and false testimony, it is presumed that such witness cannot be relied upon fot truthfulness. Conviction for any other crime, however, is not a disqualification The notary public before whom the will was acknowledged cannot act as witness because he cannot acknowledge before himself his having signed the will; this cannot be done because it would place him in an inconsistent position and the very purpose of the acknowledgement, which is to minimize fraud would be thwarted.

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Wills & Succession/ Atty Uribe Art. 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n) B: Because This is not a testamentary disposition Gonzales vs. CA This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on May 4, 1973 in CAG. R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate of the last will and testament of the deceased Isabel Gabriel. It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary and executrix. There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and children, lived with the deceased at the latter's residence prior and up to the time of her death. The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be the will of the deceased on the following grounds: From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue decided on appeal was whether or not the will in question was executed and attested as required by law. The Court of Appeals, upon consideration of the evidence adduced by both parties, rendered the decision now under review, holing that the will in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the deceased and of each other as required by law, 2 hence allowed probate. Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the document, Exhibit "F", was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses were credible witnesses. She argues that the requirement in Article 806, Civil Code, that the witnesses must be credible is an absolute requirement which must be complied with before an alleged last will and testament may be admitted to probate and that to be a credible witness, there must be evidence on record that the witness has a good standing in his community, or that he is honest and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of the witness are first established, his testimony may not be favorably considered. Petitioner contends that the term "credible" is not synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same Code. It is further urged

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that the term "credible" as used in the Civil Code should receive the same settled and well-known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wills with respect to the qualifications of witnesses. We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from being a witness to a will. These Articles state: "Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code. "Art. 821. The following are disqualified from being witnesses to a will: (1)

Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a document, perjury or false testimony. Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his good standing in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first be established in the record the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party. In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or testament and affirm the formalities attendant to said execution. And We agree with the respondent that the rulings laid down in the cases cited by petitioner concerning character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills executed under the Civil Code of the Philippines. In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification of any of the said witnesses, much less has it been shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write. In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his testimony and arises from

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Wills & Succession/ Atty Uribe the belief and conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to believe his testimony." In fine, We state the rule that the instrumental witnesses in order to be competent must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on record that the witnesses have a good standing in the community or that they are honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise. In other words, the instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses were "credible witnesses", that is, that they have a good standing in the community and reputed to be trustworthy and reliable. Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the three instrumental witnesses who constitute the best evidence of the will-making have testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix have been identified on the will and there is no claim whatsoever and by anyone, much less the petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and we go back to the rule that the Supreme Court cannot review and revise the findings of facts of the respondent Court of Appeals. e.

supervening incompetency

Art. 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. (n) B: As in the case of TC the time of execution of the will is the only relevant temporal criterion in the determination of the competence of the witnesses. J: competency determined at the time of execution of will and not at the time of presentation for probate. f.

Competency of interested witnesses

Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or

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spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n) T: This article does not refer to disqualification to be a witness, but a disqualification to inherit. The devisee or legatee is not disqualified nor his spouse, parent or child to be witness as long as he is competent and credible under Art. 821 but the devise or legacy, however, shall be void. But if the witness is not a devisee or legatee, but an heir, is the institution of such heir void? Notwithstanding the terminology of the article, we believe that even as instituted heir, or spouse, parent child is disqualified. The disqualification is intended to to aply to one succeeding by will, and it is not material in what concept he succeeds. This is proved by Art. 1027 par. 4 on relative incapacity which makes no distinction between heirs, devisees or legatees. B: this article pertains more on the capacity to succeed than the capacity to be a witness. The witness will remain as such but the legacy or devise shall be void. The disqualification applies only to testamentary disposition . if the witness is also entitled to legitime or intestate share this shall not be affected. 3.

Special requirements for deaf, deaf mute and blind testators

Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n) Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n) T: The reason for the requirement in this article is to make the provisions of the will known to the testator, so that he may be able to object if they are not in accordance with his wishes. Failure to comply with this requirement mkes the will invalid. An illiterate testator can see the paper and the writing thereon, but ne cannot understand what is written because he cannot read it. From the point of view of understanding or knowing the contents of the will, there is no difference between the illiterate testator and the blind testator. Therefore, the present article should likewise apply to an illiterate testator. B: the burden of proof of the compliance of this aticle is is upon the proponent. No requirement that such compliance is stated in the will or attestation clause Garcia vs. Vasquez Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no descendents,

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Wills & Succession/ Atty Uribe ascendants, brother or sister. At the time of her death, she was said to be 90 years old more or less, and possessed of an estate consisting mostly of real properties. The petition was opposed separately by several groups of alleged heirs the latter five groups of persons all claiming to be relatives of Doña Gliceria within the fifth civil degree. The oppositions invariably charged that the instrument executed in 1960 was not intended by the deceased to be her true will; that the signatures of the deceased appearing in the will was procured through undue and improper pressure and influence the part of the beneficiaries and/or other persons; that the testatrix did not know the object of her bounty; that the instrument itself reveals irregularities in its execution, and that the formalities required by law for such execution have not been complied with. Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined the group of Dr. Jaime Rosario in registering opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special administratrix, on the ground that the latter possesses interest adverse to the estate. After the parties were duly heard, the probate court, in its order of 2 October 1965, granted petitioner's prayer and appointed her special administratrix of the estate upon a bond for P30,000.00. The order was premised on the fact the petitioner was managing the properties belonging to the estate even during the lifetime of the deceased, and to appoint another person as administrator or co administrator at that stage of the proceeding would only result in further confusion and difficulties. On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the due execution of the will, the probate court took note that no evidence had been presented to establish that the testatrix was not of sound mind when the will was executed; that the fact that she had prepared an earlier will did not, prevent her from executing another one thereafter; that the fact that the 1956 will consisted of 12 pages whereas the 1960 testament was contained in one page does not render the latter invalid; that, the erasures and alterations in the instrument were insignificant to warrant rejection; that the inconsistencies in the testimonies of the instrumental witnesses which were noted by the oppositors are even indicative of their truthfulness. The probate court, also considering that petitioner had already shown capacity to administer the properties of the estate and that from the provisions of the will she stands as the person most concerned and interested therein, appointed said petitioner regular administratrix with a bond for P50,000.00. From this order all the oppositors appealed, the case being docketed in this Court as G.R. No. L-27200. Foremost of the questions to be determined here concerns the correctness of the order allowing the probate of the 1960 will. The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose Ayala; and another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary public Remigio M. Tividad. Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and Rosales uniformly

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declared that they were individually requested by Alfonso Precilla (the late husband of petitioner special administratrix) to witness the execution of the last will of Doña Gliceria A. del Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga, Manila, one after the other, in the afternoon of 29 December 1960; that the testatrix at the time was apparently of clear and sound mind, although she was being aided by Precilla when she walked; 3 that the will, which was already prepared, was first read "silently" by the testatrix herself before she signed it; The oppositors-appellants in the present case, however, challenging the correctness of the probate court's ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and defective that she could not have read the provisions of the will, contrary to the testimonies of witnesses Decena, Lopez and Rosales. On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that when Doña Gliceria del Rosario saw him for consultation on 11 March 1960 he found her left eye to have cataract (opaque lens), 15 and that it was "above normal in pressure", denoting a possible glaucoma, a disease that leads to blindness 16 As to the conditions of her right eye The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact that notwithstanding the operation and removal of the cataract in her left eye and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly for viewing distant objects and not for reading print. Thus, the conclusion is inescapable that with the condition of her eyesight in August, 1960, and there is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable f reading, and could not have read the provisions of the will supposedly signed by her on 29 December 1960. It is worth noting that the instrumental witnesses stated that she read the instrument "silently" (t.s.n., pages 164-165). which is a conclusion and not a fact. Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D", acquires striking significance. Upon its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into a single sheet of paper, to much so that the words had to be written very close on the top, bottom and two sides of the paper, leaving no margin whatsoever; the word "and" had to be written by the symbol "&", apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Doña Gliceria. Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for "acknowledge'', remained uncorrected, thereby indicating that execution thereof must have been characterized by haste. It is difficult to understand that so important a document containing the final disposition of one's worldly possessions should be embodied in an informal and untidily written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to read the purported will and had done so. The record is thus convincing that the supposed testatrix could not have physically read or understood the alleged testament, Exhibit "D", and that its admission to probate was erroneous and should be reversed.

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Wills & Succession/ Atty Uribe Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as appellant oppositors contend, not unlike a blind testator, and the due execution of her will would have required observance of the provisions of Article 808 of the Civil Code. "ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged." The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), 18 is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to and understood by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will should be read to the latter, not only once but twice, by two different persons, and that the witnesses have to act within the range of his (the testator's) other senses. 19 In connection with the will here in question, there is nothing in the records to show that the above requisites have been complied with. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its due execution. On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of the pendency of an action may be recorded in the office of the register of deeds of the province in which the property is situated, if the action affects "the title or the right of possession of (such) real property." 23 In the case at bar, the pending action which oppositors seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615). As previously discussed in this opinion, however, that case is concerned merely with the correctness of the denial by the probate court of the motion for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the late Gliceria del Rosario. In short, the issue in controversy there is simply the fitness or unfitness of said special administratrix to continue holding the trust; it does not involve or affect at all the title to, or possession of, the properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated in the record of the titles to the properties. FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. 4.

Substantial compliance

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.

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T: The law on formal requirements of a will should be liberally construed; while perfection in drafting is desirable, unsubstantial departures should be ignored, as long as the possibility of fraud and bad faith are obviated. There are many people who are fluent and have a graet mastery of grammar. Thus, grammatical errors which may be noted from the general tenor of the attestation clause must, therefore, be overlooked or corrected by construction, so as not to frustrate the recognized intention of those who intervened in the execution thereof. Where it appears from the context of the attestation that certain words were ommtied inadvertently, the court may supply the omission. It is sufficient if from the language employed it can be reasonably deduced that the attestation clause fulfills what the law expects of it. Hence, an attestation clause will be held sufficient, notwithstanding some imperfections in the grammatical constructions, where it is evident that the defect is due to carelessness of the clerk or to lac of mastery of the language, if the meaning sought to be conveyed can be determined from the clause itself. Furthermore, the whole language of the attestation clause must be taken together to determine whether the testaor complied with the law. The substantial compliance rule has been applied to such extent as to allow the attestation clause to be contained in the body of the will itself and not a separate portion therein, expressed in the first preson as a recital of the testator, provided that it is also signed by the three instrumental witnesses. Justice JBL Reyes’ criticism of this article is enlightening: The rule here is so broad that no matter how imperfect the attestation clause happens to be, the same could be cured by evidence aliunde. It thus renders the attestation of no value in protecting fraud or really defective execution. The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: 1. 2. 3. 4.

Whether all the pages are consecutively numbered; W signature appears in each page; W the subscribing witnesses are three W the will is notarized

All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the number of pages, and whether all required to sign did so in the presence of each other must substantially appear in the attestation clause being the only check against perjury in probate proceedings. C. Holographic Wills 1.

General requirements.

Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)

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Wills & Succession/ Atty Uribe Our law does not recognize nuncupative wills, which is one that is not written, but orally declared by the testator in his last illness, in contemplation of death, and before a sufficient number of competent witnesses. The above requirement applies to both holographic and notarial. In notarial wills it is immaterial who performs the mechanical act writing the will, so long as the testator signs it or has somebody sign his name in his presence upon his direction. As to the language or dialect, when a will is executed in a certain province or locality, in the dialect currently usd in such province or locality, there arises a presumption that the testator knew the dialect so used, in the absence of contrary evidence. It is not required that the will express that the language is known by the testator it is a fact which may be proved by evidence aliunde. The attestation clause of an ordinary will does not have to be written in a language or dialect known to the testator. It is not part of the testamentary disposition. The language used in the attestation clause does not even have to be known to the witness; it should, however, be translated to them. Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a) T: the following are the advantages of a holographic will: 1. simple and easy to make for those a) who have no means to employ a lawyer, b)who are timid and wants to reread their wills before signing, c) those who have only very little property to dispose 2. It induces foreigners in this jurisdiction to set down their last wishes; 3. guaranties the absolute secrecy of the testamentary disposition because it is not witnessed. The disadvantages are:

Its simplicity is an invitation to forgery, since the text may be extremely short. If we want to permit the testator to keep his wishes secret in order to avoid importunity, it can be done on the basis of the closed will. (tstamento cerrado) May a blind testator make a valid holographic will? There is no question as to notarial wills it being allowed under the law provided the will was read twice to the testator. As to holographic wills, it is submitted that it may be allowed. The testator, having written the holographic will by his own hand, knows what it contains. He may have learned to write before he became blind, or inspite of his blindness. This view has been sustained in Louisiana, where it has been held that blindness does not of itself prevent the making of a valid holographic. A HW may be in any form, but the intent to dispose mortis causa must clearly appear in the context. What would be the effect of words written by another and inserted among the words written by the testator? 1. if insertion was made after execution bu w/o consent, such is deemed not written; 2. if the insertion was after execution with the consent of testator, the will remains valid but the insertion void; 3. if insertion was after execution and validated by testator by his signature, the entire will is void because it is not wholly written by the testator himself; 4. if insertion is contemporaneous to the execution the effect same as no. 3. As to date, the day, month, and year on which the will was made should be indicated therein. The day and the month,however, may be indicated by implication, so long as the designation leaves no room for doubt as to exact date. The validity of the holographic will is defeated by the fact that part of the date is printed. Such as that written on a daily planner though the contents are entirely written by the hand but the testator relied on the date indicated on the planner, the same is still extrinsically void.

1. does not gauranty testamentary capacity of testator; 2. no protection against vices of consent which may not be known in case of death; 3. due to faulty expression, it may not express the true will of the testator; 4. for the same reason, it can be easily concealed. JBL Reyes criticizes this form of a will: A holographic wills are peculiarly dangerous in case of persons who have written very little. The validity of these wills depends exclusively on the authenticity of the handwriting, and if writing standards are not procurable, or not contemporaneous, the courts are left to the mercy of the mendacity of witnesses.

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Signatures of witnesses to a HW will not invalidate the will, but will be disregarded as a mere surplusage. A person can make a HW in the form of a letter in which he states his testamentary dispositions giving it a character of a will but the animus testatandi must be present. Inaccuracy of the date due to involuntary error, or inadvertence, the testator being in good faith, the court may allow proof of the true date, provided such proof even extrinsic can have a basis in the will itself. The signature of the testator in HW is not the simple writing of the name and surname of the testator. It is his name written by him in his usual and habitual manner. Under our law, the signature musr be at the end of the will. Thus can be inferred from article 812 by the reference to

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Wills & Succession/ Atty Uribe dispositions “written below his signature” this phrase implies that the signature is at the end of the will and any disposition below it must be further signed and dated. Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n) T: the dispositions written below the testator’s dignature to the will are considered as independent of the will itself; hence, they must be signed and dated by the testator. If one is not dated, even irf signed, that particular disposition will be void, without affecting the validity of others or of the will itself. And an unsigned and undated postscript to a holographic will is invalid as to testamentary disposition. Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n) B: Thus, in case of several additional dispositions the additional ones before the last are dated but unsigned, only the last will be valid provided the last is dated and signed. Roxas vs. De Jesus Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-will addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61" and states: "This is my will which I want to be respected altho it is not written by a lawyer. . . " On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic Will which he found to have been duly executed in accordance with law. Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law requires that the Will should contain the day, month, and year of its execution and that this should be strictly complied with. The only issue is whether or not the date "FEB./61" appearing on the holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which reads: ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed." The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator to state in his holographic Will the "year, month, and

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day of its execution," the present Civil Code omitted the phrase "Año, mes y dia" and simply requires that the holographic Will should be dated. The petitioners submit that the liberal construction of the holographic Will should prevail. We agree with the petitioner. This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy — "The underlying and fundamental objectives permeating the provisions of the law on wills in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. "This objective is in accord with the modern tendency with respect to the formalities in the execution of wills." (Report of the Code Commission, p. 103) ". . . The law has a tender regard for the will of the testator expressed in his last will and testament on the ground that any disposition made by the testator is better than that which the law can make. For this reason, intestate succession is nothing more than a disposition based upon the presumed will of the decedent." Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Will should be admitted to probate We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any substitution of Wills and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61" appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained. As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the

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Wills & Succession/ Atty Uribe holographic Will should be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated Kalaw vs. Relova On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968. The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code reading:

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

ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder. From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were made by the testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the ground that "Article 814 of the Civil Code being clear and explicit, (it) requires no necessity for interpretation." From that order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on Certiorari on the sole legal question of whether or not the original unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir. Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. 1 Manresa gave an identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2 However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will

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is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature. The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No costs V. INCORPORATION OF DOCUMENT BY REFERENCE

Art. 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and (4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. (n) Incorporation by reference is an exception to the rule that if an instrument is not executed with all the formalities of a will it cannot be admitted to probate. If a will duly executed and witnessed according to the requirements of the statute, incorporates in itself by reference any document or paper not so executed and witnessed, whether such paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will and is identified by clear and satisfactory proof as the paper referred to therein, will take effect as part of the will and be admitted to probate as such. To establish a separate writing as part of the will it must appear on its face the ff: 1. there must be distinct reference to such writing, so explicit as to identify it beyond doubt, less is sufficient, including parol evidence received. 2. the reference must indicate the writing as already existing;

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Wills & Succession/ Atty Uribe 3.

it can only be given effect to the extent that it appears prima facie to have been the wish of the testator.

The following must likewise be shown by extrinsic proof: 1. that it is the very writing referred to in the will; 2. that it was in fact made before will was executed B: This article refers to such documents as inventories, books of account, documents of titile, and papers of similar nature; the docs should under no circumstances, make testamentary dispositions because formal requirements of wills may be circumvented. Can holographic wills incorporate documents by refernce? It depends. No, because par. 4 of this article requires a witness to sign on every page except voluminous docs. Only ordinary wills requires witnesses unless of course a HW is executed with witnesses superfluously. VI. CODICIL A.

had existence until the act of revocation made it void. (Black’s Law Dictionary)

Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a) T: During the life of the testator the will is said to be ambulatory and may be altered, revoked, or superseded at any time. Its is of no possible effect as a will while the maker lives. A will may be revoked at pleasure. Revocation is an act of the mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward and visible act or sign, symbolic thereof. Revocation 1. act of testator law

vs.

Nullity 1. proceeds from

Definitions and Solemnities

Art. 825. A codicil is supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered. (n)

2. presupposes a valid act 3. inter vivos 4. testator cannot renounce

2. inherent from the will 3. invoked After death 4. can be disregarded by heirs

B: This characteristic is consistent with the principle laid down in Art. 777, successional rights vest only upon death.

Art. 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n)

C. Law Governing revocation

T: After a testator has already made a will, a subsequent instrument mortis causa may either be a codicil or a new will. If the subsequent instrument explains the original will, or alters, or adds to it, then it is a codicil. But if the later instrument makes dispositions independent of those in the original will, then it is a new will, not a codicil. A codicil is always related to some prior will.

Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n)

B: The distinctions, however, is purely academic because Article 826 requires the codicil to be in the form of a will anyway.

Rules for revocation:

Must the codicil conform to the form of the will to which it refers? The law does not require this. Thus, an attested will may have a holographic codicil; a holographic will may have an attested codicil. Needles to say, of course, the forms of the will and the codicil may concur.

A. B.

if revocation in the Phil. Follow local laws if outside the Phil.

1.

testator not domiciled in the Phil

a)

follow law of the place where will was made, or follow law of the domicile of testator at time of revocation

b)

VII. REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS A.

Definitions of revocation

Revocation is an act of the mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward and visible act or sign, symbolic thereof. Revocation is the recall of some power, authority, or a thing granted or a destroying or making void of some deed that

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2.

testator domiciled in the Phil. Art. 829 not applicable:

a) b)

follow Phil. Law- domiciliary principle, or follow law of place of revocation- lex loci celebrationis, or follow law of the place where will was made ( by analogy with Art. 829)

c)

D. Modes of Revocation

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Wills & Succession/ Atty Uribe 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. (n) There is revocation by implication of law when certain acts or events take place subsequent to making of a will, which nullify or render inoperative either the will itself or some testamentary disposition therein. Examples are the ff: 1. act of unworthiness by an heir, devisee, or legatee under Art. 1032; 2. transformation, alienation or loss of the thing devised or legacy after execution of will (art. 957); 3. Judicial demand by the testator of a credit given as legacy art. 936; 4. preterition of compulsory heirs article 854; 5. sale of property given as devise or legacy for the payment of the debts of the testator. Enumeration is not exclusive. Subsequent Instrument A subsequent will containing a clause revoking a previous will should possess all the requisites of a will, whether it be an ordinary or holographic will, and should be probated,in order that the revocatory clause may produce the effect of revoking the previous will. Destruction of a will 1.

2.

the testator must at the time or revocation be of sound mind. The same degree of mental capacity is required to revoke a will as to make one; the burning, tearing, canceling, or obliteration of the will must be done with animo revocandi and must actually be carried out. The mental process or intent to revoke must concur with the physical fact or actual destruction of the will;

where a testatrix was about to burn a will in an envelope, with the intention of revoking it, but a third person fraudulently replced the will inside thought he testatrix believed the will was destroyed, still no revocation occurred. However, if the

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third person is a devisee or legatee who prevents the revocation by threats, fraud or violence, the will is revoked as to him, by implication of law on the ground of unworthiness. Third person may revoke a will if the same was done in the presence of and by the express direction of the testator. In cases where the destruction is unauthorized, there is no revocation, and the contents of the will may be preoved by secondary evidence. If the will was already partly burned or torn but was only saved upon the interference of a third person the will is still deemed revoked as long as the testator intended to. No matter how large or small the extent of the damage to the will even if the same is still legible, the same is still deemed revoked for all intents and purposes. This case is to be differentiated from the will that was replaced because here the actual will itself has commenced destruction. Gago vs. Mamuyac The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day of April, 1919, executed a new will and testament. On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac. "That Exhibit A is a mere carbon copy of its original which remained in the possession of the deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of witnesses Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original of Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a house and the land where the house was built, he had to cancel it the will of 1919), executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The opponents have successfully established the fact that father Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the deceased, who was living in the house with him, when cross-examined by attorney for the opponents, testified that the original of Exhibit A could not be found. For the foregoing consideration and for the reason that

46

Wills & Succession/ Atty Uribe the original of Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of Exhibit A for the applicant." From that order the petitioner appealed. With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower court, that the will in question had been cancelled in 1920. The law does not require any evidence of the revocation or cancellation of a will to. be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. In view of the fact that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the conclusion that the conclusions of the lower court are in accordance with the weight of the evidence. Casiano vs. CA 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. The case was instituted in the then Court of First Instance of Iloilo and was docketed as Special Proceeding No. 1736. However, while the case was still in progress, or to be exact on February 1, 1964, 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. That should have signalled the end of the controversy, but, unfortunately, it had not. Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBULUT-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 submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable

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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. There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the case lies on the issue as to whether or not the will was revoked by Adriana. The provisions of the new Civil Code pertinent to the issue can be found in Article 830. Art. 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills: or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (Emphasis Supplied.) It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself. The respondent appellate court in assessing the evidence presented by the private 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." We share the same view. Nowhere in the records before us does it appear 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, we think, 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. At this juncture, we reiterate that "(it) is an important matter of public interest that a purported will is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its very foundations ..." 4 One last note. 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." 7 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.

47

Wills & Succession/ Atty Uribe 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. E. Effect of revocation Art. 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills. (n)

facts alleged by him, it does not matter whether they are true or not; the revocation in such case is absolute. B: Requisites for Article 833: 1. 2. 3. 4. 5.

the cause must be concrete, factual and not purely subjective it must be false; the testator must know its falsity it must appear that the testator is revoking because of the cause which is false. the illegal cause should be stated in the will as the cause of revocation

Revocation may be: Express- when the later declares the former or all former wills revoked.

Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. (714)

Implied- when it merely makes disposition inconsistent with the provisions of the former wills, the later will annuls only such disposiotion in prior wills as are inconsisten with those contained in the subsequent will. Or if there appears an intention of the testator to dispose of his property in a manner different from the first will, it is to the extent revoked.

T: the recognition does not lose its legal effect even if the will is revoked, because the recognition is not a testamentary disposition; it takes effect upon the execution of the will and not upon the death of the testator.

If two similar wills are executed on the same day they may constituted as the same will. Art. 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a) The Doctrine of Dependent Relative Revocation entails that 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 substitute is inoperative, the revocation fails and the original will remain in full force. The failure of the new testamentary disposition is equivalent to the non-fulfillment of a suspensive condition which prebvents revocation of the first will. The article contemplates a case where a subsequent will revokes a prior one, and the validity of the later will is established, but its provisions cannot be carried out because of incapacity of or renunciation by the beneficiaries named therein. The revocation is ineffective, because of the clear intent of the testator to revoke , contained in a valid will. The validity of the new will prevents the operation of the principle of dependent relative revocation, even if the new dispositions cannot be carried out. Art. 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n) T: if the act of revocation is induced by a belief which turns out to be false, there is no revocation. The fact, with regard to which the mistake was made, must, however, appear upon the face of the instrument. Parol evidence not competent tp prove revocation was induced by false assumption of fact or law. Where the facts alleged by the testator were peculiarly w/in his knowledge, or the testator must have known the truth of the

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B: Recognition is an irrevocable act, even if will is revoked recognition remains. Molo vs. Molo 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 latter will contains a clause which expressly revokes the will executed in 1918. The next contention of appellants refers to the revocatory clause contained in the 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 will 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 in that case is here controlling. There is merit in this contention. We have carefully read the facts involved in the Samson case and 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 why 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

48

Wills & Succession/ Atty Uribe produce the effect of annulling the previous will, inasmuch as said revocatory clause is void." (41 Phil., 838.)

fails and the original will remains in full force." (Gardner, pp. 232, 233.)

"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 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 (1935) 229 Mo. App., 632, 78 S. W. (2d), 498."

"This is the doctrine of dependent relative revocation. The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will 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. 233.)

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 abandoning it as now suggested by counsel for the oppositors.

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 occasions and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.

It is true that our law on the matter (sec. 623, Code of Civil Procedure) provides that a will may be revoked "by some will, codicil, or other writing executed as provided 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). 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 some reason. The doctrine is not 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 the 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

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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. VIII. REPUBLICATION AND REVIVAL OF WILLS Art. 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form. (n) Art. 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. (n) Art. 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. (739a) IX. ALLOWANCE OF WILLS

49

Wills & Succession/ Atty Uribe Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. (n) A. Concept of Probate To probate a will means to prove before some officer or tribunal, vested by law with authority for that purpose, that the instrument offered to be proved is the last will and testament of the deceased person whose testamentary act it is alleged to be, and that it has been executed, attested and published as required by law, and that the testator was of sound and disposing mind. It is a civil proceeding to establish the validity of the will. Revocation vs. 1. by the act of testator 2. even without cause 3. may be partial

Disallowance 1. by decree of court 2. exclusive grounds by law 3. entire will

B. Necessity of Probate A final decree of probate is conclusive as to the due execution and formal validity of a will, hence, probate is necessary to determine the following: 1. testator was of sound mind 2. consent was not vitiated 3. will was signed by the required number of witnesses 4. it is genuine and authentic In sum it involves: a. Testatmentary Capacity b. due execution thereof c. genuineness 6. De Borja vs. De Borja It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for the probate of her will which was docketed as Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor and administrator: in 1952, their son, Jose de Borja, was appointed co-administrator. When Francisco died, on 14 April 1954, Jose became the sole administrator of the testate estate of his mother, Jose Tangco While a widower Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was

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appointed special administratrix. The validity of Tasiana's marriage to Francisco was questioned in said proceeding. The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and counter-suits; including the three cases at bar, some eighteen (18) cases remain pending determination in the courts. The testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a century. In order to put an end to all these litigations, a compromise agreement was entered into on 12 October 1963, 2 by and between "[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton, Jr." On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances. The Rizal court approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case No. L28568) by the Court of First Instance of Nueva Ecija. The genuineness and due execution of the compromise agreement of 12 October 1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect. In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the decedent left no will and no debts, and the heirs are all of age, or the minors are represented by their judicial and legal representatives . . ." The will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement. Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was entered into, on 12 October 1963, the governing provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a deceased person regardless of whether he left a will or not. He also relies on the dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have already divided the estate in accordance with

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Wills & Succession/ Atty Uribe a decedent's will, the probate of the will is a useless ceremony; and if they have divided the estate in a different manner, the probate of the will is worse than useless. This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual, in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) 3 there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. 4 Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not affect the validity of the transaction; neither does the coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits. It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her successional interest existed independent of Francisco de Borja's last will and testament, and would exist even if such will were not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja. This brings us to the plea that the Court of First In stance of Rizal had no jurisdiction to approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja, whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in the estate of her late husband, not the estate itself; and as already shown, that eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code:

Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point is without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text of the agreement that would show that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was only made in consideration of the cession of her hereditary rights. It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-mentioned was the compromise agreement of 13 October 1963, which already had been formally signed and executed by the parties and duly notarized. What the record discloses is that some time after its formalization, Ongsingco had unilaterally attempted to back out from the compromise agreement, pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the lapse of the allegedly intended resolutory period of 60 days and because the contract was not preceded by the probate of Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which objections have been already discussed. It was natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new settlement or novatory agreement before seeking judicial sanction and enforcement of Annex "A", since the latter step might ultimately entail a longer delay in attaining final remedy. That the attempt to reach another settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. L-28040; and it is more than probable that the order of 21 September 1964 and the motion of 17 June 1964 referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to reach a novatory accord can not invalidate the original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its approval and enforcement from the Court of First Instance of Rizal, which, as heretofore described, decreed that the agreement be ultimately performed within 120 days from the finality of the order, now under appeal. We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order should be upheld, while the contrary resolution of the Court of First Instance of Nueva Ecija should be, and is, reversed. C. Modes of Probate Two kinds of probate under Art. 838 1.

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale of the vendor."

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Ante mortem probate or that which is had during the lifetime of the testator. This is an innovation to our laws on succession. Ratio: a. easier for the courts to determine the mental condition of testator during his lifetime. b. Fraud, intimidation, undue influence are minimized

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Wills & Succession/ Atty Uribe c.

d.

If will found to be non conforming to the requirements provided for by law the same maybe corrected at once Will lessen the number of contest upon wills, since testator still alive his animus testandi is determinable at once.

(a) The jurisdictional facts; (b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; (c) The probable value and character of the property of the estate;

2. Post mortem or that which is had after death

prayed; D. Requirements for Probate The Revised rules of Court provides for the requirements and procedure for probating a will as follows:

RULE 75 PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY SECTION 1. Allowance necessary. Conclusive as to execution.—No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution. SEC. 2. Custodian of will to deliver.—The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named In the will. SEC. 3. Executor to present will and accept or refuse trust.— A person named as executor in a will shall, within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after he knows that be is named executor if he obtained such knowledge after the death of the testator, present such will to the court having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it. SEC. 4. Custodian and executor subject to fine for neglect.— A person who neglects any of the duties required in the two last preceding sections without excuse satisfactory to the court shall be fined not exceeding two thousand pesos. SEC. 5. Person retaining will may be committed.—A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the will. RULE 76 ALLOWANCE OR DISALLOWANCE OF WILL SECTION 1. Who may petition for the allowance of will.—Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. The testator himself may, during his lifetime, petition the court for the allowance of his will. SEC. 2. Contents of petition.—A petition for the allowance of a will must show, so far as known to the petitioner:

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(d) The name of the person for whom letters are

(e) If the will has not been delivered to the court, the name of the person having custody of it. But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed. SEC. 3. Court to appoint time for proving will. Notice thereof to be published.—When a will is delivered to, or a petition for the allowance of a will is filed in, the court having jurisdiction, such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province. But no newspaper publication shall be made where the petition for probate has been filed by the testator himself. SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally.—The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not the petitioner, also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs. SEC. 5. Proof at hearing. What sufficient in absence of contest.—At the hearing compliance with the provisions of the last two preceding sections must be shown before the introduction of testimony in support of the will. All such testimony shall be taken under oath and reduced to writing. If no person appears to contest the allowance of the will, the court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testify that the will was executed as is required by law. In the case of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. In the absence of any such competent witness, and if the court deem it necessary, expert testimony may be resorted to. SEC. 6. Proof of lost or destroyed will. Certificate thereupon.— No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established and the will is

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Wills & Succession/ Atty Uribe proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.

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

SEC. 7. Proof when witnesses do not reside in province.—If it appears at the time fixed for the hearing that none of the subscribing witnesses resides in the province, but that the deposition of one or more of them can be taken elsewhere, the court may, on motion, direct It to be taken, and may authorize a photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked the same questions with respect to it and to the handwriting of the testator and others, as would be pertinent and competent if the original will were present.

SEC. 12. Proof where testator petitions for allowance of holographic will.—Where the testator himself petitions for the probate of his holographic will and no contest is filed, the fact that he affirms that the holographic will and the signature are in his own handwriting, shall be sufficient evidence of the genuineness and due execution thereof. If the holographic will is contested, the burden of disproving the genuineness and due execution thereof shall be on the contestant The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant.

SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines.—If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or of any of them.

SEC. 13. Certificate of allowance attached to proved will. To be recorded in the Office of Register of Deeds.—If the court is satisfied, upon proof taken and filed, that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind, and not acting under duress, menace, and undue influence, or fraud, a certificate of its allowance, signed by the judge, and attested by the seal of the court shall be attached to the will and the will and certificate filed and recorded by the clerk. Attested copies of the will devising real estate and of certificate of allowance thereof, shall be recorded in the register of deeds of the province in which the lands lie.

SEC. 9. Grounds for disallowing will.—The will shall be disallowed in any of the following cases:

If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witness, and if the court deem it necessary, expert testimony may be resorted to.

(a) If not executed and attested as required by law; (b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (c) If it was executed under duress, or the influence of fear, or threats; (d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; (e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto. SEC. 10. Contestant to file grounds of contest.—Anyone appearing to contest the will must state in writing his grounds for opposing its allowance, and serve a copy thereof on the petitioner and other parties interested in the estate. SEC. 11. Subscribing witnesses produced or accounted for where will contested.—If the will is contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines, and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken. If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all

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Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (619a) Gan vs. Yap On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila. On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente

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Wills & Succession/ Atty Uribe Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it.

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

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

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

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed." The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authenticity (Abangan vs. Abangan, 40 Phil., 476) and to avoid that those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be — or not to be — in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to." The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in

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At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate. In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to lend themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will. Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could engineer the whole fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost — the forger may have purposely destroyed it in an "accident" — the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected. If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility of forgery — would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law. 10 One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand. Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed

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Wills & Succession/ Atty Uribe decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will. In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11 Rodelas vs. Aranza ". . . On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: "(3) The alleged holographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gan v. Yap, 104 Phil. 509; and The only question here is whether a holographic will which was lost or can not be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court." Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

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WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. Azaola vs. Singson "Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of the deceased Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less, before the death of the testatrix, as the same was handed to him and his wife; that the witness testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the special power of attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix; that said witness, in answer to a question of his counsel admitted that the holographic will was handed to him by the testatrix, "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the same transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he answered positively in the affirmative and when he was asked again whether the penmanship referred to in the previous answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was also established in the proceedings that the assessed value of the property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00." The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will. The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not

55

Wills & Succession/ Atty Uribe prove sufficiently that the body of the will was written in the handwriting of the testatrix." The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party. We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness acquainted with the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency. It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil. 742). But it can not be ignored that the requirement can be considered mandatory only in the case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveal that what the law deems essential is that the Court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect.

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And because the law leaves it to the trial court to decide if experts are still needed, no unfavourable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses. Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not mandatory. Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said article, the interest of justice would be better served, in our opinion, by giving the parties ample opportunity to adduce additional evidence, including expert witnesses, should the Court deem them necessary. In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidence already on record shall not be retaken. No costs. Codoy vs. Calugay On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition 3 for probate of the holographic will of the deceased, who died on January 16, 1990. In the petition, respondents claimed that the deceased Matilde Seño Vda. de Ramonal, was of sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and the will was written voluntarily. The assessed value of the decedent’s property, including all real and personal property was about P400,000.00, at the time of her death. 4 On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition 5 to the petition for probate, alleging that the holographic will was a forgery and that the same is even illegible. This gives an impression that a "third hand" of an interested party other than the "true hand" of Matilde Seño Vda. de Ramonal executed the holographic will. Petitioners argued that the repeated dates incorporated or appearing on the will after every disposition is out of the ordinary. If the deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottom after the dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery. On December 12, 1990, respondents filed a notice of appeal, 8 and in support of their appeal, the respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay. According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no uncertain terms testified that the handwriting and signature in the holographic will were those of the testator herself.Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the

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Wills & Succession/ Atty Uribe holographic will and the handwriting and signature therein, and allowed the will to probate. In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly declare that the signature in the will is the genuine signature of the testator. We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word "shall," when used in a statute is mandatory." 11 Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator. What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her tenants. She did not declare that she saw the deceased sign a document or write a note. In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally adopted children of the deceased. Such actions put in issue her motive of keeping the will a secret to petitioners and revealing it only after the death of Matilde Seño Vda. de Ramonal. So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because she lived with her since birth. She never declared that she saw the deceased write a note or sign a document. From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the requirement of three witnesses in case of contested holographic will, citing the decision in Azaola vs. Singson, 31 ruling that the requirement is merely directory and not mandatory. In the case of Ajero vs. Court of Appeals, 32 we said that "the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will."

contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will. A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes, retracing and erasures on the will. Comparing the signature in the holographic will dated August 30, 1978, 33 and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980, 34 and a letter dated June 16, 1978, 35 the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that the holographic will was in the handwriting by the deceased. IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin with instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the deceased Matilde Seño Vda. de Ramonal. E. Effect of Allowance of wills The matter of due execution of the will and capacity of the testator acquire the character of res judicata and cannot again be brought into question, all judicial questions in connection therewith being for once and forever closed. The probate court does not look upon the intrinsic validity of the will. However, it was held that the trial court may pass upon the intrinsic validity even before its formal validity had been established. Otherwise, the probate of the will might become an idle ceremony if on its face it appears intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon even before probated; the court should meet the issue. Gallanosa vs. Arcangel The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an estimated value of P50,000, and claims for damages exceeding one million pesos.

However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased. The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five years before the death of the deceased.

On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published In that will. Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case, his one-half share would be assigned to the spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under the care of Florentino: he had treated Pedro as his foster child, and Pedro has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate properties consisting of three parcels of abaca land and parcel of riceland to his protege (sasacuyang ataman) Adolfo Fortajada, a minor.

There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime. The only chance at comparison was during the crossexamination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which

On October 24, 1941, the testamentary heirs, the Gallanosa spouses and Adolfo Fortajada, submitted a project of partition covering sixty-one parcels of land located in various parts of Sorsogon, large cattle and several pieces of personal property which were distributed in accordance with Florentino's will. The heirs assumed the obligations of the estate amounting to

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Wills & Succession/ Atty Uribe P7,129.27 in the portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition was approved by Judge Doroteo Amador in his order of March 13, 1943, thus confirming the heirs' possession of their respective shares. The testator's legal heirs did not appeal from the decree of probate and from the order of partition and distribution. On February 20, 1952, Leon Hitosis and the heirs of Florentino's deceased brothers and sisters instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the recovery of the said sixty-one parcels of land. They alleged that they, by themselves or through their predecessors-in-interest, had been in continuous possession of those lands en concepto de dueño and that Gallanosa entered those lands in 1951 and asserted ownership over the lands. They prayed that they be declared the owners of the lands and that they be restored to the possession thereof. They also claimed damages (Civil Case No. 696). The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest. But the same plaintiffs or oppositors to the probate of the will, and their heirs, with a persistence befitting a more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696 and twenty-eight years after the probate of the will, another action in the same court against the Gallanosa spouses and Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis and for the recovery of the same sixty-one parcels of land. They prayed for the appointment of a receiver. The petitioners or the defendants below contend in this certiorari case that the lower court has no jurisdiction to set aside the 1939 decree of probate and the 1952 order of dismissal in Civil Case No. 696 and that it acted with grave abuse of discretion in not dismissing private respondents' 1967 complaint. The issue is whether, under the facts set forth above, the private respondents have a cause of action for the "annulment" of the will of Florentino Hitosis and for the recovery of the sixtyone parcels of land adjudicated under that will to the petitioners. We hold that the lower court committed a grave abuse of discretion in reconsideration its order of dismissal and in ignoring the 1939 testamentary case and the 1952 Civil Case No. 696 which is the same as the instant 1967 case. What the plaintiffs seek is the "annulment" of a last will and testament duly probated in 1939 by the lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of the complaint of the same parties that the same court dismissed in 1952. It is evident from the allegations of the complaint and from defendants' motion to dismiss that plaintiffs' 1967 action is barred by res judicata a double-barrelled defense, and by prescription, acquisitive and extinctive, or by what are known in the jus civile and the jus gentium as usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974, 61 SCRA 284). We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967 complaint, is a two-pronged defense because (1) the 1939 and 1943 decrees of probate and distribution in Special Proceeding No. 3171 and (2) the 1952 order of dismissal in Civil Case No. 696 of the lower court constitute bars by former judgment The 1939 decree of probate is conclusive as to the due execution or formal validity of the will. That means that the

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testator was of sound and disposing mind at the time when he executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him in the presence of the required number of witnesses, and that the will is genuine and is not a forgery. Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a criminal action for the forgery of the will. After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be raised anymore It is a fundamental concept in the organization of every jural system, a principle of public policy, that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. Interest rei publicae ut finis sit litum. The very object for which the courts were constituted was to put an end to controversies. After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court has expired, a final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case, the period for annulling the judgment is four years from the discovery of the fraud That ruling is a glaring error Article 1410 cannot possibly apply to last wills and testaments. The trial court and plaintiffs' counsel relied upon the case of Dingle vs. Guillermo, 48 O.G. 4410, allegedly decided by this Court, which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to void contracts, a ruling elevated to the category of a codal provision in article 1410. The Dingle case was decided by the Court of Appeals. Even the trial court did not take pains to verify the misrepresentation of plaintiffs' counsel that the Dingle case was decided by this Court. An elementary knowledge of civil law could have alerted the trial court to the egregious error of plaintiffs' counsel in arguing that article 1410 applies to wills. Roberts vs. Leonidas The question in this case is whether a petition for allowance of wills and to annul a partition, approved in an intestate proceeding by Branch 20 of the Manila Court of First Instance, can be entertained by its Branch 38 (after a probate in the Utah district court). Antecedents. — Edward M. Grimm, an American resident of Manila, died at 78 in the Makati Medical Center on November 27, 1977. He was survived by his second wife, Maxine Tate Grimm, and their two children, named Edward Miller Grimm II (Pete) and Linda Grimm, and by Juanita Grimm Morris and Ethel Grimm Roberts (McFadden), his two children by a first marriage which ended in divorce (Sub-Annexes A and B, pp. 36-47, Rollo). He executed on January 23, 1959 two wills in San Francisco, California. One will disposed of his Philippine estate which he described as conjugal property of himself and his second wife. The second will disposed of his estate outside the Philippines. In both wills, the second wife and two children were favored. The two children of the first marriage were given their legitimes in the will disposing of the estate situated in this country. In the will dealing with his property outside this country, the testator said: "I purposely have made no provision in this will for my daughter, Juanita Grimm Morris, or my daughter, Elsa Grimm McFadden (Ethel Grimm Roberts), because I have provided

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Wills & Succession/ Atty Uribe for each of them in a separate will disposing of my Philippine property." (First clause, pp. 43-47, Rollo). The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. La Var Tate on March 7, 1978 in Probate No. 3720 of the Third Judicial District Court of Tooele County, Utah. Juanita Grimm Morris of Cupertino, California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe Village, Quezon City were notified of the probate proceeding Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as the first parties, and Ethel, Juanita Grimm Morris and their mother Juanita Kegley Grimm, as the second parties, with knowledge of the intestate proceeding in Manila, entered into a compromise agreement in Utah regarding the estate. It was signed by David E. Salisbury and Donald B. Holbrook, as lawyers of the parties, by Pete and Linda and the attorney-in-fact of Maxine and by the attorneyin-fact of Ethel, Juanita Grimm Morris and Juanita Kegley Grimm. In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as personal representatives (administrators) of Grimm's Philippine estate (par. 2). It was also stipulated that Maxine's one-half conjugal share in the estate should be reserved for her and that would not be less than $1,500,000 plus the homes in Utah and Santa Mesa, Manila (par. 4). The agreement indicated the computation of the "net distributable estate". It recognized that the estate was liable to pay the fees of the Angara law firm Acting on the declaration of heirs and project of partition signed and filed by lawyers Limqueco and Macaraeg (not signed by Maxine and her two children), Judge Conrado M. Molina in his order of July 27, 1979 adjudicated to Maxine onehalf (4/8) of the decedent's Philippine estate and one-eighth (1/8) each to his four children or 12-1/2% (pp. 140-142, Record). No mention at all was made of the will in that order. Petition to annul partition and testate proceeding No. 134559. — On September 8, 1980, Rogelio A. Vinluan of the Angara law firm, in behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower court a petition praying for the probate of Grimm's two wills (already probated in Utah), that the 1979 partition approved by the intestate court be set aside and the letters of administration revoked, that Maxine be appointed executrix and that Ethel and Juanita Morris be ordered to account for the properties received by them and to return the same to Maxine (pp. 25-35, Rollo). Grimm's second wife and two children alleged that they were defraud due to the machinations of the Roberts spouses, that the 1978 Utah compromise agreement was illegal, that the intestate proceeding is void because Grimm died testate and that the partition was contrary to the decedent's wills. Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his order of October 27, 1980. Ethel then filed a petition for certiorari and prohibition in this Court, praying that the testate proceeding be dismissed, or, alternatively that the two proceedings be consolidated and heard in Branch 20 and that the matter of the annulment of the Utah compromise agreement be heard prior to the petition for probate (pp. 22-23, Rollo). Ruling. — We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's motion to dismiss.

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A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court). The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Paño, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases. Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer to the petition unless she considers her motion to dismiss and other pleadings sufficient for the purpose. Juanita G. Morris, who appeared in the intestate case, should be served with copies of orders, notices and other papers in the testate case. WHEREFORE, the petition is dismissed. The temporary restraining order is dissolved. No costs. Nepomuceno vs. CA Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leaño, who in turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses. In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner. On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary. On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the time of the execution of the Will, the testator was already very sick and that petitioner having admitted her living in concubinage with the testator, she is wanting in integrity and thus letters testamentary should not be issued to her. On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the Will's admission to probate will be

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Wills & Succession/ Atty Uribe an idle exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident. On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the Will. The respondent court declared the Will to be valid except that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner. The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to establish conclusively as against everyone that a Will was executed with the formalities required by law and that the testator has the mental capacity to execute the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in favor of the person with whom the testator was allegedly guilty of adultery or concubinage. We agree with the respondents. The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and void. The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the Will. "Art IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to may love and affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comport and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage;" The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the Will. In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous.

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"We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that the testator had the mental capacity to execute his Will. The petitioner states that she completely agrees with the respondent court when in resolving the question of whether or not the probate court correctly denied the probate of Martin Jugo's last Will and Testament, The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the petitioner as null and void. There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death. It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally married to the testator. Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage. WHEREFORE, the petition is DISMISSED for lack of merit. X. DISALLOWANCE OF WILLS

Art. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

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Wills & Succession/ Atty Uribe (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (n) Art. 1335. There is violence when in order to wrest consent, serious or irresistible force is employed. There is intimidation when one of the contracting parties is compelled by a reasonable and wellgrounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. To determine the degree of intimidation, the age, sex and condition of the person shall be borne in mind. A threat to enforce one's claim through competent authority, if the claim is just or legal, does not vitiate consent. (1267a) Art. 1336. Violence or intimidation shall annul the obligation, although it may have been employed by a third person who did not take part in the contract. (1268) Art. 1337. There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered: the confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced was suffering from mental weakness, or was ignorant or in financial distress. (n) Art. 1338. There is fraud when, through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to. (1269) T: A will void as to form does not transmit property. But it can give rise to a natural obligation; so that even if a legatee named therein cannot legally claim the legacy, the voluntary delivery thereof by the intestate heir is valid. Is a will executed by virtue of fraud upon testator susceptible of ratification? T: We submit that this conclusion overlooks the difference between the law on wills and the law on contracts. In the law on contracts, fraud merely makes the contract voidable; while in the law on wills, fraud is a ground for the disallowance of the will, that is, it renders the will void ab initio. There is nothing in the law on wills which allows implied confirmation or ratification of a void will, while there are provsions allowing it in the law on contracts.

However, the fact that the testOR did nor revoke his will after knowledge of the alleged fraud may be evidence against the existence of fraud. Pascual vs. Dela Cruz On 2 January 1960, Catalina de la Cruz, single and without any surviving descendant or ascendant, died at the age of 89 in her residence at San Roque, Navotas, Rizal. On 14 January 1960, a petition for the probate of her alleged will was filed in the Court of First Instance of Rizal by Andres Pascual, who was named in the said will as executor and sole heir of the decedent. 1 Opposing the petition, Pedro de la Cruz and 26 other nephews and nieces of the late Catalina de la Cruz contested the validity of the will on the grounds that the formalities required by law were not complied with; that the testatrix was mentally incapable of disposing of her properties by will at the time of its execution; that the will was procured by undue and improper pressure and influence on the part of the petitioner; and that the signature of the testatrix was obtained through fraud. After hearing, during which the parties presented their respective evidences, the probate court rendered judgment upholding the due execution of the will, and, as therein provided, appointed petitioner Andres Pascual executor and administrator of the estate of the late Catalina de la Cruz without bond. The oppositors appealed directly to the Court, the properties involved being valued at more than P300,000.00, raising only the issue of the due execution of the will. In this instance, oppositors-appellees claim that the lower court erred in giving credence to the testimonies of the subscribing witnesses and the notary that the will was duly executed, notwithstanding the existence of inconsistencies and contradictions in the testimonies, and in disregarding their evidence that the will was not signed by all the witnesses in the presence of one another, in violation of the requirement of the law. In this jurisdiction, it is the observed rule that, where a will is contested, the subscribing with are generally regarded as the best qualified to testify on its due execution. However, it is similarly recognized that for the testimony of such witnesses to be entitled to full credit, it must be reasonable and unbiased, and not overcome by competent evidence, direct or circumstantial. 2 For it must be remembered that the law does not simply require the presence of three instrumental witnesses; it demands that the witnesses be credible. 3 In connection with the issue under consideration, we agree with the trial judge that the contradictions and inconsistencies appearing in the testimonies of the witnesses and the notary, pointed out by the oppositors-appellants (such as the weather condition at the time the will was executed; the sequence of the signing by the witnesses; and the length of time it took to complete the act), relate to unimportant details of the impressions of the witnesses about certain details which could have been affected by the lapse of time and the treachery of human memory, and which inconsistencies, by themselves, would not alter the probative value of their testimonies on the due execution of the will [cf. Peo. vs. Sigue, 86 Phil. 139-140 (3 years interval)]. Not having heard Jiongco testify, this court is not in a position to contradict the appreciation of the trial court that the voice

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Wills & Succession/ Atty Uribe in the tape recording was not really that of Jiongco. And considering that he denied that fact under oath, that the tape recording was not supported by truly impartial evidence, and was done without the knowledge of the witness, we cannot see our way clear to rule that Jiongco has been successfully impeached, and shown guilty of false testimony. It would be dangerous to rule otherwise.

reasonable influence is not sufficient to invalidate a will (Coso vs. Fernandez Deza, ante); nor is moderate and reasonable solicitation and entreaty addressed to the testator (Barreto vs. Reyes, L-5831-31, 31 January 1956), or omission of relatives, not forced heirs, evidence of undue influence (Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 416).

The second point that renders incredible the alleged assertion of Jiongco in the tape recording, that he signed the testament only in 1958 or 1959, is that in the Notarial Registry of the notary, Gatdula, the ratification of the testament appears among the entries for 1954, as well as in the corresponding copies (Exhibit I) filed by him with Bonifacio Sumulong, the employee in charge of the Notarial Section of the Clerk of Court's office, who produced them at the trial upon subpoena, and who testified to his having searched for and found them in the vaults of the Clerk of Court's office. No evidence exists that these documents were not surrendered and filed at the Clerk of Court's office, as required by law, and in the regular course of official duty. Certainly, the notary could not have reported in 1954 what did not happen until 1958.

Tested against these rulings, the circumstances marshalled by the contestants certainly fail to establish actual undue influence or improper pressure exercised on the testarix by the proponent. Their main reliance is on the assertion of the latter, in the course of his testimony, that the deceased "did not like to sign anything unless I knew it" (t.s.n., page 7, 27 January 1962), which does not amount to proof that she would sign anything that proponent desired. On the contrary, the evidence of contestants-appellants, that proponent purchased a building in Manila for the testarix, placed the title in his name, but caused the name "Catalina de la Cruz" to be painted thereon in bold letters to mislead the deceased, even if true, demonstrates that proponent's influence was not such as to overpower to destroy the free will of the testarix. Because if the mind of the latter were really subjugated by him to the extent pictured by the contestants, then proponent had no need to recourse to the deception averred.lawphi1.�et

In view of the evidence, we do not feel justified in concluding that the trial court erred in accepting the concordant testimony of the instrumental witnesses as warranting the probate of the will in question, taking into account the unexcelled opportunity of the court a quo to observe the demeanor, and judge the credibility, of the witness thereby. Furthermore, it would not be the first time in this jurisdiction that a will has been admitted to probate even if the instrumental witness testified contrary to the other two, provided the court is satisfied, as in this case, that the will was executed and attested in the manner provided by law (Fernandez vs. Tantoco, 49 Phil. 380; Tolentino vs. Francisco, 57 Phil. 742; Cuyugan vs. Baron, 69 Phil. 639; Ramirez vs. Butte, 100 Phil 635). There is greater reason to admit the will to probate where only the testimony of one witness is subjected to serious, if unsuccessful attack. Contestants further assail the admission to probate on the ground that the execution of the will was tainted by fraud and undue influence exerted by proponent on the testarix, and affirm that it was error for the lower court to have rejected their claim. Said the court in this regard (Record on Appeal, page 87): Before considering the correctness of these findings, it is worthwhile to recall the basic principles on undue pressure and influence as laid down by the jurisprudence of this Court: that to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own (Coso vs. Fernandez Deza, 42 Phil. 596; Icasiano vs. Icasiano, L-18979, 30 June 1964; Teotico vs. Del Val, L18753, 26 March 196); that the contention that a will was obtained by undue influence or improper pressure cannot be sustained on mere conjecture or suspicion, as it is enough that there was opportunity to exercise undue influence, or a possibility that it may have been exercised (Ozaeta vs. Cuartero, L-5597, 31 May 1956); that the exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually exercised (Ozatea vs. Cuartero, ante; Teotico vs. Del Val, L-18753, 26 March 1965); that the burden is on the person challenging the will to show that such influence was exerted at the time of its execution (Teotico vs. Del Val, ante); that mere general or

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Nor is the fact that it was proponent, and not the testarix, who asked Dr. Sanchez to be one of the instrumental witnesses evidence of such undue influence, for the reason that the rheumetism of the testarix made it difficult for her to look for all the witnesses. That she did not resort to relatives or friends is, likewise explainable: it would have meant the disclosure of the terms of her will to those interested in her succession but who were not favored by her, thereby exposing her to unpleasant importunity and recriminations that an aged person would naturally seek to avoid. The natural desire to keep the making of a will secret can, likewise, account for the failure to probate the testament during her lifetime. We conclude that the trial court committed no error in finding the appellant's evidence established at most grounds for suspicion but fell far short of establishing actual exercise of improper pressure or influence. Considering that testarix considered proponent as her own son, to the extent that she expressed no objection to his being made the sole heir of her sister, Florentina Cruz, in derogation of her own rights, we find nothing abnormalin her instituting proponent also as her own beneficiary. As stated by the Court in the Knutson case � The truth of the matter is that bequests and devises to those in whom the testator has confidence and who have won his affection are more likely to be free from undue influence that bequests or devises to others. (In re Knutson's Will, 41 Pac. 2d 793). Appellants invoked presumption of undue influence held to exist by American authorities where the beneficiary participates in the drafting of execution of the will favoring him; but since the will was prepared by Atty. Pascual, although nephew of the proponent, we do not think the presumption applies; for in the normal course of events, said attorney would follow the instructions of the testatrix; and a member of the bar in good standing may not be convicted of unprofessional conduct, or of having conspired to falsify a statement, except upon clear proof. The charge of fraud, being premised on the existence of undue influence, needs no separate discussion.

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Wills & Succession/ Atty Uribe (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

WHEREFORE, the decree of probate appealed from is affirmed; XI. LEGITIME

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

A. Concept. Art. 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. (806)

(3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction;

Three principal systems of distribution of hereditary property: 1. Absolute freedom of disposition 2. Total reservation 3. Partial reservation T: Considering the customs and traditions of the Filipinos for the sake of family solidarity, the present code preserved the system of legitimes. However, changes have been made as follows:

(5) Other illegitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

1. with respect to the amounts of that coumpulsory heirs receive; 2. illegitimate children have been made compulsory heirs though with a smaller legitime; 3. legitime of surviving spouse has been changed from a mere usufruct to a full ownership. 4. eliminates the mejora which resulted in the increase of both the legitime and the free portion

In all cases of illegitimate children, their filiation must be duly proved.

Thus, Justice JBL Reyes has this to say:

Compulsory heirs are those who succeed whether the testator likes it or not and they cannot be deprived of their legitime except only by disinheritance.

The increase of the legitime to ½ as against the 1/3 in the old code, and the suppression of the mejora, operate to limit the freedom of choice of the testator to a greater extent than under the old code, for the testator, under that law, could at least select the individual descendants who should receive the third betterment. Jurisprudence, however, interpreted the ultimate purpose of the systems of legitime. It is a limitation upon the freedom of the testator to dispose of his property. Its purpose is to protect those heirs, for whom the testator is presumed to have an obligation to reserve certain portions of his estate, from his unjust ire or weakness or thoughtlessness. Ratio of the free portion: 1. An owner’s jus disponendi 2. man as a member of society can entertain not only familial affections, but also legitimate affections to his fellowmen, thus, should not be absolutely be restrained from disposing property according to dictates of generosity. The legitime does not consist in determinate or specific property which the testator must reserve for his compulsory heirs. It consists of a part of fraction of the entire mass of the hereditary estate. The standard for determination is fixed by law, but quantity may vary according to number and relation of the heirs to the testator.

B. Who are entitled?

Art. 887. The following are compulsory heirs:

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The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. (807a)

An heir, of whatever class is absolutely free to accept or renounce the inheritance because the law on legitime is a restriction not on the freedom of the heir to accept or repudiate, but on the freedom of testator to dispose of his property. Kinds of Compulsory heirs: 1. 2. 3.

Primary – those who exclude other compulsory heirs ex. Legit children & ascendants secondary – succeed only in the absence of the primary. ex. Legit parents & ascenadants Concurring – succeed together with the primary and secondary cannot be excluded by them. Ex. Widow/er & illegit children

Legitimate children and ascendants – in the ordinary course of nature father or mother die ahead of the child; the law confers preferential legitimary rights upon them. Thus the law intends that property of the decedent pass not to strangers but to his natural successor. Legitimated Children – the NCC is silent as to this kind of children but the Family code under Art. 272 grants the same rights to legitimated as that of the legitimate. Hence they are included as a compulsory heir. Adopted Children – Art. 189 of the FC provides that for civil purposes, the adopted shall be deemed a legitimate child of the adopters and both shall acquire reciprocal rights and obligations from a parent-child relationship. Hence,

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Wills & Succession/ Atty Uribe considered as legitimate child of the deceased adopting parent both as CH and LH. Illegitimate Parents – they are compulsory heirs only in the absence of legitimate, or illegitimate children of the decedent as provided under Art. 903. Adopting parents – they are not compulsory heirs of the adopted child because Art. 190 of the FC only provides that they shall be legal heirs of the deceased adopted and is silent as to their becoming compulsory heir. This indicates that the latter was not intended. Ratio: Adoption is for the benefit of the adopted, and unless the law clearly intends to favor the adopter, all doubts should be resolved against him. Because of the silence of the law on legitimes, he cannot be entitiled to the legitime of the legitimate parents; and in the law of testacy , he is not given, in general, the same rights as a legitimate parent but only such as are specifically provided in Article 190 of the FC. Legitimes of CH are restrictions on the freedom of the testator and must not be presumed but viewed strictly. Illegitimate Children – the FC abolished the distinctions in the old civil code thus merging them to one group. Social and humanitarian reasons justify this grant of rights. These children are brought to the world without their fault and under circumstances beyond their control. To leave illegitimate children w/o successional rights not only weighs them down with the moral handicap of their status but also denies them the material assistance which they may need after their parent’s death so as not to become social burdens. They are not required to be recognized by putative parents but must only prove their filiation. In the enforcement of this new right it is the death of the parent which determines the right of the child to succeed and not the birth of the latter. Surviving Spouse – there should be a valid marriage between the deceased and the surviving spouse. Thus, the following marriages has different effect on the capacity of the widow or widower to succeed: 1.

2.

3.

null and void marriages such as incestuous or bigamous ones. Except in cases of bigamous marriages where two wives contract in good faith with the same husband, both are entitled to inherit equally from the deceased husband. Voidable marriages entitle the widow/er to legitime because there exists a valid marriage until it is annulled. Thus, once annulled before death of a spouse they are incapacitated to inherit. However, pending the case of annulment and one spouse dies the widow/er, nevertheless, inherits the legitime because the marriage can no longer be annulled after death of one. Legal separation of the spouses before death entitles the widow/er the Legitime if he /she is the innocent spouse. Unless reconciliation occurred before the death of the spouse, the survivor will inherit regardless of his guilt. In such case that the decree is

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4.

pending upon death of one spouse then the decision should be awaited. The fact that the innocent spouse instituted the legal separation manifest his desire to not to allow the guilty spouse to benefir fro his estate. The accident of death should not defeat this purpose. Separation in fact by amicable settlement does not incapacitate the guilty spouse to inherit though there may be valid grounds for legal separation there being no judicial decree, the right of legitime is preserved.

Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (843a) The article allows the legitimate and illegitimate descendants to represent the illegitimate child who predecease his own parent. But the illegitimate children of of an illegitimate child can represent the latter only in the rights “set forth in the preceding articles” namely 894, 895, 896, 899, and 901. The criticism on this article is that the law gives better rights to the illegitimate children of an illegitimate child and not to the illegitimate children of a legitimate child. This is absurd since the position of the illegitimate children is no better than or equal to that of the legitimate child. However, though unfair to the latter this is an express provision of law which we are confronted with. Thus, dura lex sed lex Rosales vs. Rosales In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu the question raised is whether the widow whose husband predeceased his mother can inherit from the latter, her mother-in-law. In the course of the intestate proceedings, the trial court issued an Order dated June 16, 1972 declaring the following individuals the legal heirs of the deceased and prescribing their respective share of the estate — Fortunato T. Rosales (husband) 1/4; Magna R. Acebes (daughter), 1/4; Macikequerox Rosales, 1/4; and Antonio Rosales (son), 1/4. This declaration was reiterated by the trial court in its Order dated February 4, 1975. These Orders notwithstanding, Irenea Rosales insisted in getting a share of the estate in her capacity as the surviving spouse of the late Carterio Rosales, son of the deceased, claiming that she is a compulsory heir of her mother-in-law together with her son, Macikequerox Rosales. In sum, the petitioner poses two (2) questions for Our resolution. First — is a widow (surviving spouse) an intestate heir of her mother-in-law? Second — are the Orders of the trial court which excluded the widow from getting a share of the estate in question final as against the said widow? Our answer to the first question is in the negative. Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own right, and those who inherit by the right of representation. 1 Restated, an intestate heir can only inherit either by his own right, as in the order of intestate succession provided for in the Civil Code, 2 or by the right of representation provided for in Article 981 of the same law.

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Wills & Succession/ Atty Uribe There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate heir of her mother-inlaw. The entire Code is devoid of any provision which entitles her to inherit from her mother-in-law either by her own right or by the right of representation. The provisions of the Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate with meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate heir. The conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the deceased all the more confirms Our observation. If the legislature intended to make the surviving spouse an intestate heir of the parent-in-law, it would have so provided in the Code. The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the surviving spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-in-law. Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in-law By the same token, the provision of Article 999 of the Civil Code aforecited does not support petitioner's claim. A careful examination of the said Article confirms that the estate contemplated therein is the estate of the deceased spouse. The estate which is the subject matter of the intestate estate proceedings in this case is that of the deceased Petra V. Rosales, the mother-in-law of the petitioner. It is from the estate of Petra V. Rosales that Macikequerox Rosales draws a share of the inheritance by the right of representation as provided by Article 981 of the Code. Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of his blood relationship. He does not succeed his father, Carterio Rosales (the person represented) who predeceased his grandmother, Petra Rosales, but the latter whom his father would have succeeded. Petitioner cannot assert the same right of representation as she has no filiation by blood with her mother-in-law. Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may, said right of her husband was extinguished by his death that is why it is their son Macikequerox Rosales who succeeded from Petra Rosales by right of representation. He did not succeed from his deceased father, Carterio Rosales. On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon the second question posed by the petitioner. Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse is not an intestate heir of his or her parent-in-law. WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack of merit, with costs against the petitioner. Let this case be remanded to the trial court for further proceedings. C. Concurrence of compulsory heirs and their legitimes.

Art. 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (808a)

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The enlargement of the legitime and the free portion to half each is primarily the result of removal of the 1/3 mejora or betterment in the old code where the testator disposes a portion in favor of his legitimate children for their betterment or reward. The NCC eliminated the mejora for the following reasons: 1. 2. 3.

The natural inequalities among children is but imaginary and parent reward merely on better qualities of one children such reward may be effected by the father or mother by disposing of part or all of the free half the testator should have greater freedom to dispoe of his estate by will

the supposed free portion is not always disposable by the testator; it is expressly made subject to the rights of illegitimate children and the surviving spouse. Only the remainder thereafter shall be disposable, if there is any left. Art. 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children and descendants. The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (809a) Art. 890. The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents should have died, the whole shall pass to the survivor. If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line. (810) Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. (834a) T: As to legitimate children, the law makes no distinction whether of the previous marriage or the marriage dissolved by death, hence, children in both cases are included The surviving spouse concurring with legitimate children receives only equal to the legitime of each of the legitimate children and ascendants.

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Wills & Succession/ Atty Uribe What if there are no legitimate children only descendants? Does this mean that the spouse shall receive equal to each descendants which may be even more than the number of children of the deceased? NO. whatever the number of descendants is immaterial the divisor is still the number of children they represent because the descendants only inherit by representation. Even if all the children repudiate the legitime the divisor shall still be the number of children. But if only some of the children repudiate, the basis of computation should be the number of children who accept the inheritance If the surviving spouse receives a devise or legacy, is he entitiled to the same in addition to his legitime? T: if the testator gives a devise or legacy to the surviving spouse, and there is enough of the portion subject to his disposal which can cover such devise or legacy, then the surviving spouse should get the devise or legacy in addition to his legitime. To merge the devise or legacy in the legitime would leave a part of the free portion undisposed of; this is contrary to the policy of law against intestate succession and against the express will of the testator. We believe, therefore, that the devise or legacy should be first taken from the remaining disposable portion, and if there is any excess of the devise or legacy over the disposable portion, that excess charged against or merged in the legitime of the surviving spouse. If however, the legitime of the surviving spouse is already protected by the disposition giving him an amount or portion equivalent to that legitime, then he cannot ask for more unless, the testator provides it as addition to his legitime. Art. 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. This fourth shall be taken from the free portion of the estate. (836a) Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. (n) Art. 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied. (840a)

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Article repealed by Article 176 of the Family Code which provides that the legitime of each illegitimate children is onehalf of that of legitimate child. Ratio: the law rewards more the fruits of legal unions, thus, giving preference and greater portion of the hereditary estate. However, for humanitarian reasons the illegitimate children should not be disregarded because they are just as innocent and blameless as the legitimate children for being born in this world beyond their control. Limitations to the rights of Legitimate children: 1. 2. 3. 4.

filiation must be proved their share comes only from the free portion surviving spouse is preferred over them, the legitme of the spouse is satisfied first their share is susceptible of proportionate reduction if their total legitimes exceeds the free portion

Art. 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. (841a) Art. 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of. (n) Art. 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that provided in the preceding article. (n) The Family Code has already abolished the distinction between natural and other illegitimate children placing them under one category of illegitimate children. Art. 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to onefourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (n) T: This seems to be an unjustified discrimination against the surviving spouse because he receives a graeter or an equal amount when she survives with either the IC or the LP but with both at the same time she only receives a measly 1/8 of the estate. Undoubtedly, the code seems to have wanted to save portion of the estate for the free disposal of the deceased. This is not a sufficient justification for discriminating against the surviving spouse and destroying the balance between the

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Wills & Succession/ Atty Uribe legitimes, after vall, there are instances in w/c the free portion is merely theoretical. Art. 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. (837a) If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. (n) Presupposes that the surviving spouse is the only compulsory heir. T: We believe that this rule will apply only when the deceased is the spouse who was at the point of death at the time of marriage; hence, it will not apply when the spouse who was at the point of death at the time of marriage is the one who survives, and the other is the one who dies w/in three months after the marriage. Ratio for the rule is the presumption that the marriage is contracted exclusively for inheriting. However, this suspicion is erased if the spouses had been living together as husband and wife for at least five years on account of companionship and affection for such length of time. This distinction does not apply to intestacy Art. 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. The other half shall be at the free disposal of the testator. (842a) Art. 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. (n) It must be noted that in illegitimate filiation, the right to succeed in the ascending line terminates with the parent of the deceased illegitimate child. There is, therefore, no reciprocity of successional reights between the illegitimate grandparent and the illegitimate grandchild. P.D. 603; Art. 39. Effects of Adoption. - The adoption shall:

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(1) Give to the adopted person the same rights and duties as if he were a legitimate child of the adopter: Provided, That an adopted child cannot acquire Philippine citizenship by virtue of such adoption: (2) Dissolve the authority vested in the natural parent or parents, except where the adopter is the spouse of the surviving natural parent; (3) Entitle the adopted person to use the adopter's surname; and (4) Make the adopted person a legal heir of the adopter: Provided, That if the adopter is survived by legitimate parents or ascendants and by an adopted person, the latter shall not have more successional rights than an acknowledged natural child: Provided, further, That any property received gratuitously by the adopted from the adopter shall revert to the adopter should the former predecease the latter without legitimate issue unless the adopted has, during his lifetime, alienated such property: Provided, finally, That in the last case, should the adopted leave no property other than that received from the adopter, and he is survived by illegitimate issue or a spouse, such illegitimate issue collectively or the spouse shall receive onefourth of such property; if the adopted is survived by illegitimate issue and a spouse, then the former collectively shall receive onefourth and the latter also one-fourth, the rest in any case reverting to the adopter, observing in the case of the illegitimate issue the proportion provided for in Article 895 of the Civil Code. The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him, except that if the latter are both dead, the adopting parent or parents take the place of the natural parents in the line of succession, whether testate or interstate. D. Restrictions regarding the legitime

Art. 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law. Art. 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed. (813a) The legitime goes to the heir by operation of law and not by the will of the testator; hence it cannot be subject to the freedom of the latter to impose encumbrances, conditions and substitutions. Any encumbrance is simply disregarded and considered as not written. The CH’s right to the legitime is free, unencumbered, and pure.

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Wills & Succession/ Atty Uribe Art. 905. Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. (816) 1. 2.

3.

4.

5. 6.

The future legitime between is merely an expectancy, and the heir does not acquire any right over the same until death of testator. The renunciation or compromise does not become valid by the mere failure of the compulsory heirs to assert its invalidity because the matter of its legal effect cannot be left to the will of the parties. all renunciations of future legitimes are void. However, a mere statement made by a son of the properties ne has received from his father, still living, for the purpose of taking the same into account in case of partition in the event the father dies, is not a renunciation or compromise on future legitime. Since the legitime is a part of the inheritance, and a compromise is contract, it is obvious that all compromises on future legitimes, by and between the heirs themselves to the exclusion of the testator, must be held void if not under this article, under the general prohibition of Art. 1347. the nullity of the renunciation or compromise may be claimed, not only by the CH who made it, by co-heirs prejudiced thereby. the giving of donations as advance of the legitime is not prohibited by this article nor 1347 but governed by rules on donation and the reduction thereof whenever inofficoius.

Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. (815)

of intestacy to the CH; if it is not enough to cover his legitime, then he may ask for the completion of such legitme. It is to be presumed that the testator intended to give him the undisposed portion. Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive. (817) Only the CHs whose legitme has been impaired can avail of the right to ask for the reduction of inofficious donations, devises, or legacies. Art. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. (1271a) It is essential that the object must be in existence at the time of perfection of the contract, or that it has the possibility or potentiality of coming into existence at some future time. By way of exception, the law generally does not allow contracts on future inheritance. In order to be future inheritance, the succession must not have been opened at the time of the contract. A contract to fall within the prohibition of this article, the following requisites are necessary: 1. that the succession is yet to be opened. 2. the object forms part of the inheritance. 3. the promissor has an expectant right over the object which is purely hereditary in nature.

By the word testator, irt is believed thiat this principle applies only when that which has been left is in a will or testament. If there is no testatmentery disposition in his favor, the heir cannot ask for completion of his legitime, because there is nothing to complete; instead, there should be case of preterition or total omission, and in such case the forced heir in the direct line is entitled to ask, not merely for the completion of his legitime, but for the annulment of the institution of heir.

An agreement to partition an estate of a living person by those who inherit from him is void. A contract renouncing the right to inherit from one who is still alive is void.

But when it is not evedent that the testator has forgotten the compulsory heir and it appears as a fact that the compulsory heir had already received something in the way of advance upon his legitime, it cannot be presumed that the testator had forgotten the compulsory heir. There is no real preterition, although nothing has been left by will to the CH. The purpose of Article 906 evidently is to give the compulsory heir only that ehich has been reserved for him by the law, nothing less nothing more. If he was not forgotten then he is entitled only to that which the testator cannot deprive him.

When the object of the contract is not a part of the inheritance, the prohibition does not apply, even if delivery of such object is dependent upon the death of one of the contracting parties. Thus, life insurance contracts, and stipulations providing for reversion of property donated in marriage settlements in the event of the death of the donee, are valid. Likewise, if the right of the party over the thing is not by virtue of succession, but as creditor, the contract does not fall within the prohibition of this article. It has been held that in a contract of purchase by co-owners, it is valid to stipulate that in the event of death of any of them, those who survive will acquire the share of the predeceased.

Even when the CH has not been mentioned in the will or has not been gien an advance on his legitime, if the testamentary dispositions do not cover the entire estate but something is left undisposed, and the CH is also a compulsory heir is also an intestate heir. The indisposed portion would pass by the rule

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After the death of the person, however, the properties and rights left by him by way of inheritance can be the subject matter of a contract among or by his heirs, even before a partition thereof has been made, because the rights of the heirs are transmitted to them from the death of the predecessor.

E. Determination of computation

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Wills & Succession/ Atty Uribe Art. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. Steps to determine legitime: 1.

Determination of the value of the property which remains at the time of the testator’s death; either by: a. b.

2. 3. 4. 5.

judicial proceedings in the settlement of the estate assisted by tax appraisers true value of the property not merely assessed value for taxation purposes

determination of the obligations, debts, and charges which have to be paid out or deducted from the value of the property the difference between the assets and the liabilities, giving rise to the net hereditary estate; addition to the net value of the estate of donations subject to collation determination of the amount of legitimes by getting from the total thus found the portion that the law provides as the legitimes of each respective CH.

Art. 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code. (847a) Any donation to the grandchild is not subject to collation because the same is not a CH but it may be charged against the free portion as a donation to stranger. When the donation to a compulsory heir exceeds his legitime, the excess is chargeable against the free portion which is at the disposal of the the testator, just as any donation to stranger, subject to the resk of reduction. If the donation to a stranger exceeds the free portion, then it will have to be reduced as inofficious. The purpose of the law is not to prevent the stranger from getting more from the inheritance, but to ascertain that the CH do not get less than what pertains to them as legitime. Art. 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows:

The remainder after deduction of the debts and charges is the net hereditary estate.

(1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will;

Collation, in the first concept is the imaginary or fictitious reconstitution of the estate of the testator by mere mathematical process of adding all that is donated during the lifrtime of the testator to CH or strangers.

(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.

The second concept entails that property donated by the testator during his lifetime must be brought back actually and returened to the hereditary estate whenever it is found that such donation exceeds the disposable portion of the estate. The purpose of which is to complete the assets necessary for the payment of the shares of the compulsory heirs.

If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime.

Collation is thus for the benefit of the CH, and not the creditors of the decedent. The presence of the latter, however, must be determined at the time of the testator’s death, not at the time the donation was made. The value of the property donated, however, is determined on the date the donations were made.

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

To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them. (818a) Art. 909. Donations given to children shall be charged to their legitime.

Donation intervivos is preferred over disposition mortis causa. Ratio: 1.

Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. 2. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. (819a)

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3.

Donation intervivos are by nature irrevocable to allow annulment on account of legacies and devise in excess of free portion in effect allows the revocation to depend on the will of the donor-testator. Donation is a bilateral act based on the sgreement of donor and donee while a will is unilateral; Priority in time is priority in right.

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Wills & Succession/ Atty Uribe The article provides a rule on preference to determine which devise or legacy is to be reduced whenervr it execeeds the free portion or to the extent that it impairs the legitime. Art. 950 also provides the following order of reduction of legacy or devise: 1. 2. 3. 4. 5. 6.

remunatory legacy or devise; legacy or devise declared by testator to be preferred; legacies for support; legacies for education; specific determinate thing ehich form part of the estate; all others pro rata.

Where lies the distintion bet. 950 and 911? Article 911 will apply as to the manner of reducing legacies: a.

b.

when reduction is necessary to preserve legitime of CH from impairment wheter there are donation inter vivos; when although legitime has been preserve by the testator, by giving sufficient portion to cover legitime of CH, thereare donations inter vivos concurring with legacies or devises within the free portion.

Article 950 applies when the question of reduction is exclusively among the legatees themselves, either because ther are no compulsory heirs, or because the legitme of CH has already been provided for by the testator in his will and there are no donation inter vivos. As to usufruct, use or habitation, or life annuity there shall be taken into account the probable life of the beneficiary in accordance with the American Tropical Experience table at 8% per annum. Donations are reduced first the most recent ones with regard the excess. Thus, priority in time priority in right. If several donations made on the same date they are reduced pro rata A property donated once alienated by donee cannot be set aside. It would be dangerous to the stability of property and inimical to the freedom of alienation.

It is submitted that that the amount to be returned by the insolvent must be borne and paid by those whose donation are within the free portion. As between the compulsory heir, whose rights are derived from law, and the donees, whose rights spring from the will of the deceased, the former should be protected from the impairment of their shares. Art. 912. If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them. The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime. (821) Art. 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article, any heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property shall be sold at public auction at the instance of any one of the interested parties. (822) T: Division under this article means a material division, which is inconvenient, because the the property is not susceptible of such division, or because it will lose or diminish its value or utitlity when so divided. Hence, although the law specifically refers only to devise, it should be considered applicable to all objects whether movable or immovable, of the same nature, such as vessels. Query: if the reduction should be exactly ½ of the value, does it mean that the hir gets to retain it not being less than ½? “does not absorb ½” It is submitted that the thing should be retained by the devisee. The intention of the testaor in making a devise of a determinate object is clearly so that the legatee may enjoy that particular property. Out of respect for this intention, and since the will of the testator is the governing law in the succession, the thing should be given to the devisee in case he is entitled to half its value and the heirs the other half.

Summary of Legitimes of Compulsory Heirs In the above instance, can the inofficious part of the donation be taken from other proerty of the donee?

1. Legitimate Children with other CH c. d. e.

We believe that in such case the donee should be made to respond fro the value of the excess or inofficoius part. It was the act of the donee which made it impossible to recover the inofficoius part to the hereditary estate. He is conclusively presumed to knoe that that the donation stands the risk of reduction. What if the donee is insolvent and cannot return anything to the estate to complete the impaired legitime; who shall bear the loss?

f. g. h.

2. Legitimate Parents & Ascendants w/ other CH a. b.

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LC alone – ½ 1 LC w/ SS- ½, ¼ 2 or more LC w/ SS – ½, same as 1 LC receives LC w/ IC – ½, half of 1 LC 1LC, SS, IC – ½, ¼, half of 1 LC LCs, SS, IC – ½, same as 1 LC, half of 1 LC

LPA alone – 1/2 LPA w/ SS – ½, ¼

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Wills & Succession/ Atty Uribe LPA w/ IC – ½, ¼ LPA, SS, IC – ½, 1/8, ¼

c. d.

given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. (1040)

3. Illegitimate Children w/ other IC a. b.

IC alone – ½ IC w/ SS – 1/3, 1/3

4. Surviving Spouse alone – ½ Except in articulo mortis marriage and spouse dies w/in 3 mos. Surviving spouse entitled only to 1/3 5. Illegitimate Parents w/ other CH a. b. c.

IP alone – ½ IP w/ LC or IC – excluded by the latter IP w/ SS – ¼, ¼

COLLATION Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. (1035a) Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. (1036) Art. 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired. (1037) Art. 1064. When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property. They shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced. (1038) Art. 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children. (1039) Art. 1066. Neither shall donations to the spouse of the child be brought to collation; but if they have been

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Art. 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation. (1041) Art. 1068. Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. (1042a) Art. 1069. Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and similar expenses shall be brought to collation. (1043a) Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. (1044) Art. 1071. The same things donated are not to be brought to collation and partition, but only their value at the time of the donation, even though their just value may not then have been assessed. Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or account and risk of the donee. (1045a) Art. 1072. In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance. (1046a) Art. 1073. The donee's share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality. (1047) Art. 1074. Should the provisions of the preceding article be impracticable, if the property donated was immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should there be neither cash or marketable securities in the estate, so much of the other property as may be necessary shall be sold at public auction. If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price. (1048)

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Wills & Succession/ Atty Uribe Art. 1075. The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on which the succession is opened.

property be divided" in accordance with her testamentary disposition, whereby she devised and bequeathed specific real properties comprising practically the entire bulk of her estate among her six children and eight grandchildren.

For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same kind and quality as that subject to collation shall be made the standard of assessment. (1049)

Under the oppositors' counter-project of partition, the testamentary disposition made by the testatrix of practically her whole estate of P1,801,960.01, as above stated, were proposed to be reduced to the amounts set forth after the names of the respective heirs and devisees totalling one-half while the other half of the estate (P905,534.78) would he deemed as constituting the legitime of the executrix-appellee and oppositors-appellants, to be divided among them in seven equal parts of P129,362.11 as their respective legitimes.

Art. 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the preservation of the property donated to him, though they may not have augmented its value. The donee who collates in kind an immovable which has been given to him must be reimbursed by his coheirs for the improvements which have increased the value of the property, and which exist at the time the partition if effected. As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them; he has, however, the right to remove them, if he can do so without injuring the estate. (n) Art. 1077. Should any question arise among the coheirs upon the obligation to bring to collation or as to the things which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate security is given. (1050) Dizon-Rivera vs. Dizon On January 28, 1961, the testatrix, Agripina J. Valdez. a widow, died in Angeles, Pampanga, and was survived by seven compulsory heirs, to wit, six legitimate children named Estela Dizon, Tomas V. Dizon, Bernardita Dizon, Marina Dizon (herein executrix-appellee), Angelina Dizon and Josefina Dizon, and a legitimate grand-daughter named Lilia Dizon, who is the only legitimate child and heir of Ramon Dizon, a pre-deceased legitimate son of the said decedent. Six of these seven compulsory heirs (except Marina Dizon, the executrixappellee) are the oppositors-appellants. In her will, the testatrix divided, distributed and disposed of all her properties appraised at P1,801,960.00 (except, two small parcels of land appraised at P5,849.60, household furniture valued at P2,500.00, a bank deposit in the sum of P409.95 and ten shares of Pampanga Sugar Development Company valued at P350.00) among her abovenamed heirs. Testate proceedings were in due course commenced 2 and by order dated March 13, 1961, the last will and testament of the decedent was duly allowed and admitted to probate, and the appellee Marina Dizon-Rivera was appointed executrix of the testatrix' estate, and upon her filing her bond and oath of office, letters testamentary were duly issued to her. The real and personal properties of the testatrix at the time of her death thus had a total appraised value of P1,811,695.60, and the legitime of each of the seven compulsory heirs amounted to P129,362.11. 3 (1/7 of the half of the estate reserved for the legitime of legitimate children and descendants). 4 In her will, the testatrix "commanded that her

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The lower court, after hearing, sustained and approved the executrix' project of partition, ruling that "(A)rticles 906 and 907 of the New Civil Code specifically provide that when the legitime is impaired or prejudiced, the same shall be completed and satisfied. While it is true that this process has been followed and adhered to in the two projects of partition, it is observed that the executrix and the oppositors differ in respect to the source from which the portion or portions shall be taken in order to fully restore the impaired legitime. The proposition of the oppositors, if upheld, will substantially result in a distribution of intestacy, which is in controversion of Article 791 of the New Civil Code" adding that "the testatrix has chosen to favor certain heirs in her will for reasons of her own, cannot be doubted. This is legally permissible within the limitation of the law, as aforecited." With reference to the payment in cash of some P230,552.38, principally by the executrix as the largest beneficiary of the will to be paid to her five co-heirs, the oppositors (excluding Tomas Dizon), to complete their-impaired legitimes, the lower court ruled that "(T)he payment in cash so as to make the proper adjustment to meet with the requirements of the law in respect to legitimes which have been impaired is, in our opinion, a practical and valid solution in order to give effect to the last wishes of the testatrix." m the lower court's orders of approval, oppositors-appellants have filed this appeal, and raise anew the following issues: 1. Whether or not the testamentary dispositions made in the testatrix' will are in the nature of devises imputable to the free portion of her estate, and therefore subject to reduction; 2. Whether the appellants are entitled to the devise plus their legitime under Article 1063, or merely to demand completion of their legitime under Article 906 of the Civil Code; and 3. Whether the appellants may be compelled to accept payment in cash on account of their legitime, instead of some of the real properties left by the Testatrix; The testator's wishes and intention constitute the first and principal law in the matter of testaments, and to paraphrase an early decision of the Supreme Court of Spain. 9 when expressed clearly and precisely in his last will amount to the only law whose mandate must imperatively be faithfully obeyed and complied with by his executors, heirs and devisees and legatees, and neither these interested parties nor the courts may substitute their own criterion for the testator's will. Guided and restricted by these fundamental premises, the Court finds for the appellee.

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Wills & Succession/ Atty Uribe This was properly complied with in the executrix-appellee's project of partition, wherein the five oppositors-appellants namely Estela. Bernardita, Angelina, Josefina and Lilia, were adjudicated the properties respectively distributed and assigned to them by the testatrix in her will, and the differential to complete their respective legitimes of P129,362.11 each were taken from the cash and/or properties of the executrixappellee, Marina, and their co-oppositor-appellant, Tomas, who admittedly were favored by the testatrix and received in the partition by will more than their respective legitimes. This right of a testator to partition his estate by will was recognized even in Article 1056 of the old Civil Code which has been reproduced now as Article 1080 of the present Civil Code. The only amendment in the provision was that Article 1080 "now permits any person (not a testator, as under the old law) to partition his estate by act inter vivos." 11 This was intended to repeal the then prevailing doctrine 12 that for a testator to partition his estate by an act inter vivos, he must first make a will with all the formalities provided by law. Authoritative commentators doubt the efficacy of the amendment 13 but the question does not here concern us, for this is a clear case of partition by will, duly admitted to probate, which perforce must be given full validity and effect. Aside from the provisions of Articles 906 and 907 above quoted, other codal provisions support the executrixappellee's project of partition as approved by the lower court rather than the counter-project of partition proposed by oppositors-appellants whereby they would reduce the testamentary disposition or partition made by the testatrix to one-half and limit the same, which they would consider as mere devises or legacies, to one-half of the estate as the disposable free portion, and apply the other half of the estate to payment of the legitimes of the seven compulsory heirs. Oppositors' proposal would amount substantially to a distribution by intestacy and pro tanto nullify the testatrix' will, contrary to Article 791 of the Civil Code. It would further run counter to the provisions of Article 1091 of the Civil Code that "(A) partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. The burden of oppositors' contention is that the testamentary dispositions in their favor are in the nature of devises of real property, citing the testatrix' repeated use of the words "I bequeath" in her assignment or distribution of her real properties to the respective heirs. From this erroneous premise, they proceed to the equally erroneous conclusion that "the legitime of the compulsory heirs passes to them by operation of law and that the testator can only dispose of the free portion, that is, the remainder of the estate after deducting the legitime of the compulsory heirs . . . and all testamentary dispositions, either in the nature of institution of heirs or of devises or legacies, have to be taken from the remainder of the testator's estate constituting the free portion." Oppositors' conclusions necessarily are in error. The testamentary dispositions of the testatrix, being dispositions in favor of compulsory heirs, do not have to be taken only from the free portion of the estate, as contended, for the second paragraph of Article 842 of the Civil Code precisely provides that "(O)ne who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs." And even going by oppositors' own theory of bequests, the second paragraph of Article 912 of the Civil Code covers precisely the case of the executrix-appellee, who admittedly was favored by the

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testatrix with the large bulk of her estate in providing that "(T)he devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime." For "diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate." 18 Fundamentally, of course, the dispositions by the testatrix constituted a partition by will, which by mandate of Article 1080 of the Civil Code and of the other cited codal provisions upholding the primacy of the testator's last will and testament, have to be respected insofar as they do not prejudice the legitime of the other compulsory heirs. Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired" and invoking of the construction thereof given by some authorities that "'not deemed subject to collation' in this article really means not imputable to or chargeable against the legitime", while it may have some plausibility 19 in an appropriate case, has no application in the present ease. Here, we have a case of a distribution and partition of the entire estate by the testatrix, without her having made any previous donations during her lifetime which would require collation to determine the legitime of each heir nor having left merely some properties by will which would call for the application of Articles 1061 to 1063 of the Civil Code on collation. The amount of the legitime of the heirs is here determined and undisputed. With this resolution of the decisive issue raised by oppositorsappellants, the secondary issues are likewise necessarily resolved. Their right was merely to demand completion of their legitime under Article 906 of the Civil Code and this has been complied with in the approved project of partition, and they can no longer demand a further share from the remaining portion of the estate, as bequeathed and partitioned by the testatrix principally to the executrix-appellee. Neither may the appellants legally insist on their legitime being completed with real properties of the estate instead of being paid in cash, per the approved project of partition. The properties are not available for the purpose, as the testatrix had specifically partitioned and distributed them to her heirs, and the heirs are called upon, as far as feasible to comply with and give effect to the intention of the testatrix as solemnized in her will, by implementing her manifest wish of transmitting the real properties intact to her named beneficiaries, principally the executrix-appellee. The appraisal report of the properties of the estate as filed by the commissioner appointed by the lower court was approved in toto upon joint petition of the parties, and hence, there cannot be said to be any question — and none is presented — as to fairness of the valuation thereof or that the legitime of the heirs in terms of cash has been understated. The plaint of oppositors that the purchasing value of the Philippine peso has greatly declined since the testatrix' death in January, 1961 provides no legal basis or justification for overturning the wishes and intent of the testatrix. The transmission of rights to the succession are transmitted from the moment of death of the decedent (Article 777, Civil Code) and accordingly, the value thereof must be reckoned as of then, as otherwise, estates would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of the currency and properties of the estate. There is evidence in the record that prior to November 25, 1964, one of the oppositors, Bernardita, accepted the sum of P50,000.00 on account of her inheritance, which, per the

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Wills & Succession/ Atty Uribe parties' manifestation, 20 "does not in any way affect the adjudication made to her in the projects of partition of either party as the same is a mere advance of the cash that she should receive in both projects of partition." The payment in cash by way of making the proper adjustments in order to meet the requirements of the law on non-impairment of legitimes as well as to give effect to the last will of the testatrix has invariably been availed of and sanctioned. 21 That her cooppositors would receive their cash differentials only now when the value of the currency has declined further, whereas they could have received them earlier, like Bernardita, at the time of approval of the project of partition and when the peso's purchasing value was higher, is due to their own decision of pursuing the present appeal.

Anything less than such express prohibition will not suffice under the clear language of Article 1062. The suggestion that there was an implied prohibition because the properties donated were imputable to the free portion of the decedent's estate merits little consideration. Imputation is not the question here, nor is it claimed that the disputed donation is officious. The sole issue is whether or not there was an express prohibition to collate, and we see none.

De Roma vs. CA

Locsin vs. CA

Candelaria de Roma had two legally adopted daughters, Buhay de Roma and Rosalinda de Roma. She died intestate on April 30, 1971, and administration proceedings were instituted in the Court of First Instance of Laguna by the private respondent as guardian of Rosalinda. Buhay was appointed administratrix and in due time filed an inventory of the estate. This was opposed by Rosalinda on the ground that certain properties earlier donated by Candelaria to Buhay, and the fruits thereof, had not been included. 1

Mariano Locsin executed a Last Will and Testament instituting his wife, Catalina, as the sole and universal heir of all his properties 3 . The will was drawn up by his wife's nephew and trusted legal adviser, Attorney Salvador Lorayes. Attorney Lorayes disclosed that the spouses being childless, they had agreed that their properties, after both of them shall have died should revert to their respective sides of the family, i.e., Mariano's properties would go to his "Locsin relatives" (i.e., brothers and sisters or nephews and nieces), and those of Catalina to her "Jaucian relatives. 4 "

The properties in question consisted of seven parcels of coconut land worth P10,297.50. 2 There is no dispute regarding their valuation; what the parties cannot agree upon is whether these lands are subject to collation. The private respondent vigorously argues that it is, conformably to Article 1061 of the Civil Code. Buhay, for her part, citing Article 1062, claims she has no obligation to collate because the decedent prohibited such collation and the donation was not officious. The issue was resolved in favor of the petitioner by the trial court, * which held that the decedent, when she made the donation in favor of Buhay, expressly prohibited collation. Moreover, the donation did not impair the legitimes of the two adopted daughters as it could be accommodated in, and in fact was imputed to, the free portion of Candelaria's estate. 3 On appeal, the order of the trial court was reversed, the respondent court ** holding that the deed of donation contained no express prohibition to collate as an exception to Article 1062. Accordingly, it ordered collation and equally divided the net estate of the decedent, including the fruits of the donated property, between Buhay and Rosalinda. 4 We agree with the respondent court that there is nothing in the above provisions expressly prohibiting the collation of the donated properties. As the said court correctly observed, the phrase "sa pamamagitan ng pagbibigay na di na mababawing muli" merely described the donation as "irrevocable" and should not be construed as an express prohibition against collation. 6 The fact that a donation is irrevocable does not necessarily exempt the subject thereof from the collation required under Article 1061. We surmise from the use of such terms as "legitime" and "free portion" in the deed of donation that it was prepared by a lawyer, and we may also presume he understood the legal consequences of the donation being made. It is reasonable to suppose, given the precise language of the document, that he would have included therein an express prohibition to collate if that had been the donor's intention.

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The intention to exempt from collation should be expressed plainly and unequivocally as an exception to the general rule announced in Article 1062. Absent such a clear indication of that intention, we apply not the exception but the rule, which is categorical enough.

Don Mariano Locsin died of cancer on September 14, 1948 after a lingering illness. In due time, his will was probated in Special Proceedings No. 138, CFI of Albay without any opposition from both sides of the family. As directed in his will, Doña Catalina was appointed executrix of his estate. Her lawyer in the probate proceedings was Attorney Lorayes. In the inventory of her husband's estate 5 which she submitted to the probate court for approval, 6 Catalina declared that "all items mentioned from Nos. 1 to 33 are the private properties of the deceased and form part of his capital at the time of the marriage with the surviving spouse, while items Nos. 34 to 42 are conjugal." 7 Among her own and Don Mariano's relatives, Doña Catalina was closest to her nephew, Attorney Salvador Lorayes, her nieces, Elena Jaucian, Maria Lorayes-Cornelio and Maria Olbes-Velasco, and the husbands of the last two: Hostilio Cornelio and Fernando Velasco. 8 Her trust in Hostilio Cornelio was such that she made him custodian of all the titles of her properties; and before she disposed of any of them, she unfailingly consulted her lawyer-nephew, Attorney Salvador Lorayes. It was Atty. Lorayes who prepared the legal documents and, more often than not, the witnesses to the transactions were her nieces Elena Jaucian, Maria LorayesCornelio, Maria Olbes-Velasco, or their husbands. Her niece, Elena Jaucian, was her life-long companion in her house. Don Mariano relied on Doña Catalina to carry out the terms of their compact, hence, nine (9) years after his death, as if in obedience to his voice from the grave, and fully cognizant that she was also advancing in years, Doña Catalina began transferring, by sale, donation or assignment, Don Mariano's, as well as her own, properties to their respective nephews and nieces. She made the following sales and donations of properties which she had received from her husband's estate, to his Locsin nephews and nieces: Doña Catalina died on July 6, 1977. Four years before her death, she had made a will on October 22, 1973 affirming and

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Wills & Succession/ Atty Uribe ratifying the transfers she had made during her lifetime in favor of her husband's, and her own, relatives. After the reading of her will, all the relatives agreed that there was no need to submit it to the court for probate because the properties devised to them under the will had already been conveyed to them by the deceased when she was still alive, except some legacies which the executor of her will or estate, Attorney Salvador Lorayes, proceeded to distribute. In 1989, or six (6) years after Doña Catalina's demise, some of her Jaucian nephews and nieces who had already received their legacies and hereditary shares from her estate, filed action in the Regional Trial Court of Legaspi City (Branch VIII, Civil Case No. 7152) to recover the properties which she had conveyed to the Locsins during her lifetime, alleging that the conveyances were in officious, without consideration, and intended solely to circumvent the laws on succession. Those who were closest to Doña Catalina did not join the action. After the trial, judgment was rendered on July 8, 1985 in favor of the plaintiffs (Jaucian), and against the Locsin defendants

donation shall be reduced on petition of any person affected. (634a). The lower court capitalized on the fact that Doña Catalina was already 90 years old when she died on July 6, 1977. It insinuated that because of her advanced years she may have been imposed upon, or unduly influenced and morally pressured by her husband's nephews and nieces (the petitioners) to transfer to them the properties which she had inherited from Don Mariano's estate. The records do not support that conjecture. For as early as 1957, or twenty-eight (28) years before her death, Doña Catalina had already begun transferring to her Locsin nephews and nieces the properties which she received from Don Mariano. She sold a 962-sq.m. lot on January 26, 1957 to his nephew and namesake Mariano Locsin II. 13 On April 7, 1966, or 19 years before she passed away, she also sold a 43-hectare land to another Locsin nephew, Jose R. Locsin. 14 The next year, or on March 22, 1967, she sold a 5,000-sq.m. portion of Lot 2020 to Julian Locsin. 15

The petition has merit and should be granted. The trial court and the Court of Appeals erred in declaring the private respondents, nephews and nieces of Doña Catalina J. Vda. de Locsin, entitled to inherit the properties which she had already disposed of more than ten (10) years before her death. For those properties did not form part of her hereditary estate, i.e., "the property and transmissible rights and obligations existing at the time of (the decedent's) death and those which have accrued thereto since the opening of the succession." 10 The rights to a person's succession are transmitted from the moment of his death, and do not vest in his heirs until such time. 11 Property which Doña Catalina had transferred or conveyed to other persons during her lifetime no longer formed part of her estate at the time of her death to which her heirs may lay claim. Had she died intestate, only the property that remained in her estate at the time of her death devolved to her legal heirs; and even if those transfers were, one and all, treated as donations, the right arising under certain circumstances to impugn and compel the reduction or revocation of a decedent's gifts inter vivos does not inure to the respondents since neither they nor the donees are compulsory (or forced) heirs. 12

Among Doña Catalina's last transactions before she died in 1977 were the sales of property which she made in favor of Aurea Locsin and Mariano Locsin in 1975. 18

There is thus no basis for assuming an intention on the part of Doña Catalina, in transferring the properties she had received from her late husband to his nephews and nieces, an intent to circumvent the law in violation of the private respondents' rights to her succession. Said respondents are not her compulsory heirs, and it is not pretended that she had any such, hence there were no legitimes that could conceivably be impaired by any transfer of her property during her lifetime. All that the respondents had was an expectancy that in nowise restricted her freedom to dispose of even her entire estate subject only to the limitation set forth in Art. 750, Civil Code which, even if it were breached, the respondents may not invoke:

Their desistance persuasively demonstrates that Doña Catalina acted as a completely free agent when she made the conveyances in favor of the petitioners. In fact, considering their closeness to Doña Catalina it would have been well-nigh impossible for the petitioners to employ "fraud, undue pressure, and subtle manipulations" on her to make her sell or donate her properties to them. Doña Catalina's niece, Elena Jaucian, daughter of her brother, Eduardo Jaucian, lived with her in her house. Her nephew-in-law, Hostilio Cornelio, was the custodian of the titles of her properties.

"Art 750. The donation may comprehend all the present property of the donor, or part thereof, provided he reserves, in, full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the

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There is not the slightest suggestion in the record that Doña Catalina was mentally incompetent when she made those dispositions. Indeed, how can any such suggestion be made in light of the fact that even as she was transferring properties to the Locsins, she was also contemporaneously disposing of her other properties in favor of the Jaucians? She sold to her nephew, Vicente Jaucian, on July 16, 1964 (21 years before her death) one-half (or 5,000 sq.m.) of Lot 2020. Three years later, or on March 22, 1967, she sold another 5,000 sq.m. of the same lot to Jualian Locsin. 19 This Court finds no reason to disbelieve Attorney Lorayes' testimony that before Don Mariano died, he and his wife (Doña Catalina), being childless, had agreed that their respective properties should eventually revert to their respective lineal relatives. As the trusted legal adviser of the spouses and a fullblood nephew of Doña Catalina, he would not have spun a tale out of thin air that would also prejudice his own interest.

Apart from the foregoing considerations, the trial court and the Court of Appeals erred in not dismissing this action for annulment and reconveyance on the ground of prescription. Commenced decades after the transactions had been consummated, and six (6) years after Doña Catalina's death, it prescribed four (4) years after the subject transactions were recorded in the Registry of Property, 28 whether considered an action based on fraud, or one to redress an injury to the rights of the plaintiffs. The private respondents may not feign ignorance of said transactions because the registration of the

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Wills & Succession/ Atty Uribe deeds was constructive notice thereof to them and the whole world. 29 WHEREFORE, the petition for review is granted.

“the share of the compulsory heir omitted in a will must first be taken from the part of the estate not diposed of by will, if any; it that is not sufficient, so much as may be necessary must be taken PROPORTIONALLY FROM THE SHARES OF THE OTHER HEIRS GIVEN TO THEM BY WILL”

F. Freedom to dispose free portion Art. 914. The testator may devise and bequeath the free portion as he may deem fit. The article reiterates the principle embodied already in article 842. thus, superfluous and at some point misleading. In many cases, the testator cannot really dispose of part or whole of the free portion, because the legitimes of concurring compulsory heirs, like the surviving spouse and illegitimate children when there are legitimate children or descendants, are taken from the free portion. Hence, he can only dispose that which is the remainder of the free portion when this is partly consumed by the legitimes of concurring compulsory heirs. The phrase, “as he may deem fit”, is therefore erroneous. The testator does not absolute freedom over the free portion when concurring CH are present and only to those qualified to succeed. PRINCIPLES AFFECTING LEGITIME XII. PRETERITION

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a) Art. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. (1080a) The article does not necessarily refer to preterition. It refers to a child or descendant omitted in a will. The share of the omitted child is to be determined by other provisions of law; once that is determined this article provides the manner in which that share shall be satisfied. This article suffers serious defects. The term cjold pr descendant should be construed as compulsory heirs, in much the same way that the first paragraph of article 909 has been construed by commentators to refer to compulsory heirs. Theree is patent fundamental mistake in the last sentence of the article because it creates a confusion and does not express the true intent of the law. It should have been reworded in this wise:

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Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. (815) If there is no testamentary disposition in his favor, the heir cannot ask for completion of his legitime, because there is nothing to complete; instead there should be a case preterition or total omission, and in such case the forced heir in the direct line is entitled to ask, not merely for the completion of his legitime. But for the annulment of the institution of heir. Art. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a) This article pertain to effects of a disinheritance which does not have one or more of the essential requisites for its validity. It likewise applies to cases of reconciliation after a disinheritance has been made. The ineffective disinheritance does not affect the disposition of the testator with respect to the free portion. The reason is the disinheritance in this case refers only only to the legitime of the heir, and therefore, it is only this portion that is affected by the nullity or ineffectiveness of such disinheritance. Where the disinheritance is ineffective in this case, the compulsory heir must be given all that he is entitiled to receive as if the disinheritance has not been made, without prejudice to lawful dispositions made by the testator in favor of others. Aznar vs. Duncan Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao in its decision of February 28, 1954. In that same decision the court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased. The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958 (G.R. No. L-11484) In another incident relative to the partition of the deceased's estate, the trial court approved the project submitted by the executor in accordance with the provisions of the will, which said court found to be valid under the law of California. Helen Garcia appealed form the order of approval, and this Court, on January 31, 1963, reversed the same on the ground that the validity of the provisions of the will should be governed by Philippine law, and returned the case to the lower court with instructions that the partition be made as provided by said law (G.R. No. L-16749)

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Wills & Succession/ Atty Uribe On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of partition submitted by the executor, dated June 30, 1964, wherein the properties of the estate were divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had expressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judicially declared as such after his death. The said order was based on the proposition that since Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the deceased had died intestate, saving only the legacies left in favor of certain other persons, which legacies have been duly approved by the lower court and distributed to the legatees. The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitimate of Helen Garcia, equivalent to 1/4 of the entire estate The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to Article 854 of the Civil Code, which provides: On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the Civil Code, which says: "Any compulsory heir to whom the testator has left by any title less the legitime belonging to him may demand that the same be fully satisfied," Appellant also suggests that considering the provisions of the will whereby the testator expressly denied his relationship with Helen Garcia, but left to her a legacy nevertheless, although less than the amount of her legitime, she was in effect defectively disinherited within the meaning of Article 918, which reads: Thus, according to appellant, under both Articles 906 and 918, Helen Garcia is entitled only to her legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were intestate. Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815. On the difference between preterition of a compulsory heir and the right to ask for completion of his legitime Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. The question may be posed: In order that the right of a forced heir may be limited only to the completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? In other words, should he be recognized or referred to in the will as heir? This question is pertinent because in the will of the deceased Edward E. Christensen Helen Garcia is not mentioned as an heir —

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indeed her status as such is denied — but is given a legacy of P3,600.00 Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was held that Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but only that the legitimate be completed. (6 Manresa, pp. 438, 441.) The foregoing solution is indeed more in consonance with the expressed wished of the testator in the present case as may be gathered very clearly from the provisions of his will. He refused to acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such status is no reason to assume that had the judicial declaration come during his lifetime his subjective attitude towards her would have undergone any change and that he would have willed his estate equally to her and to Lucy Duncan, who alone was expressly recognized by him. The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of their theory of preterition. That decision is not here applicable, because it referred to a will where "the testator left all his property by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by h is first marriage, he left nothing to them or, at least, some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00 The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate descended to Helen Garcia as her legitime. Since she became the owner of her share as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding portion of all the fruits or increments thereof subsequently accruing. These include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all such dividends pertain to her according to the terms of the will cannot be sustained, for it would in effect impair the right of ownership of Helen Garcia with respect to her legitime. One point deserves to be here mentioned. although no reference to it has been made in the brief for oppositorappellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concerned in fee simple. Nuguid vs. Nuguid

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Wills & Succession/ Atty Uribe 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 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. 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 peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should he 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 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 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 nullity of the provisions of the will in question. 3 After all, there exists a justiciable controversy crying for solution. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. The statute we are called upon to apply is Article 854 of the Civil Code. A comprehensive understanding of the term preterition employed in the law becomes a necessity. 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 "anulará siempre la institución de heredero, dando carácter 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

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provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. 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, Sánchez Román cites the "Memoria annual del Tribunal Supremo, correspondiente a 1908," which in our opinion expresses the rule of interpretation, viz: 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. 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 privación expresa de la legitima constituye le desheredación. La privación tácita de la misma se denomina preterición. 18 Sánchez Román 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 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," but 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, adquieren el derecho a todo; deshereda dos, solo les corresponde un tercio o dos tercios, 22 según el caso." 23 This is best answered by a reference to the opinion of Mr. 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

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Wills & Succession/ Atty Uribe 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]l never have application at all. And the remaining provisions contained in said articles 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 a thing separate and distinct from legacies or betterment. 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. Reyes vs. Barretodatu When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of these properties in a will to Salud Barretto, mother of plaintiff's wards, and Lucia Milagros Barretto and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto and his nephew and nieces. The usufruct of the fishpond situated in barrio San Roque, Hagonoy, Bulacan, abovementioned, however, was reserved for his widow, Maria Gerardo. In the meantime, Maria Gerardo was appointed administratrix. By virtue thereof, she prepared a project of partition, which was signed by her in her own behalf and as guardian of the minor Milagros Barretto. Said project of Partition was approved by the Court of First Instance of Manila on November 22, 1939. The distribution of the estate and the delivery of the shares of the heirs followed forthwith. As a consequence, Salud Barretto took immediate possession of her share and secured the cancellation of the original certificates of title and the issuance of new titles in her own name. Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased Bibiano Barretto, which was given in usufruct to his widow Maria Gerardo. Hence, this action for the recovery of one-half portion thereof.

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This action afforded the defendant an opportunity to set up her right of ownership, not only of the fishpond under litigation, but of all the other properties willed and delivered to Salud Barretto, for being a spurious heir, and not entitled to any share in the estate of Bibiano Barretto, thereby directly attacking the validity, not only of the project of partition but of the decision of the court based thereon as well. The defendant contends that the Project of Partition from which Salud acquired the fishpond in question is void ab initio and Salud Barretto did not acquire any valid title thereto, and that the court did not acquire any jurisdiction of the person of the defendant, who was then a minor.' " Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the project of partition submitted in the proceedings for the settlement of the estate of Bibiano Barretto (Civil Case No. 49629 of the Court of First Instance of Manila) to be null and void ab initio (not merely voidable) because the distributee, Salud Barretto, predecessor of plaintiffs (now appellants), was not a daughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity of the project of partition was decreed on the basis of Article 1081 of the Civil Code of 1889 (then in force) providing as follows: "A partition in which a person was believed to be an heir, without being so, has been included, shall be null and void." Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied to the present case by the court below. The reason is obvious: Salud Barretto admittedly had been instituted heir in the late Bibiano Barretto's last will and testament together with defendant Milagros; hence, the partition had between them could not be one such had with a party who was believed to be an heir without really being one, and was not null and void under said article. The legal precept (Article 1081) does not speak of children, or descendants, but of heirs (without distinction between forced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament; for Bibiano Barretto was at liberty to assign the free portion of his estate to whomsoever he chose. While the share (1/2) assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason cease to be a testamentary heir of Bibiano Barretto. Nor does the fact that Milagros was allotted in her father's will a share smaller than her legitime invalidate the institution of Salud as heir, since there was here no preterition, or total omission, of a forced heir. For this reason, Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all applicable, that case involving an instance of preterition or omission of children of the testator's former marriage. It is thus apparent that where a court has validly issued a decree of distribution of the estate, and the same has become final, the validity or invalidity of the project of partition becomes irrelevant. It is, however, argued for the appellee that since the court's distribution of the estate of the late Bibiano Barretto was predicated on the project of partition executed by Salud Barretto and the widow, Maria Gerardo (who signed for herself and as guardian of the minor Milagros Barretto), and since no

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Wills & Succession/ Atty Uribe evidence was taken of the filiation of the heirs, nor were any findings of fact or law made, the decree of distribution can have no greater validity than that of the basic partition, and must stand or fall with it, being in the nature of a judgment by consent, based on a compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked in support of the proposition. That case is authority for the proposition that a judgment by compromise may be set aside on the ground of mistake or fraud, upon petition filed in due time, where petition for "relief was filed before the compromise agreement, a proceeding, was consummated" (cas. cit. at p. 436). In the case before us, however, the agreement of partition was not only ratified by the court's decree of distribution, but actually consummated, so much so that the titles in the name of the deceased were cancelled, and new certificates issued in favor of the heirs, long before the decree was attacked. Hence, Saminiada vs. Mata does not apply.

was judicially settled and distributed appellants' predecessor, Salud Lim Boco Barretto, knew that she was not Bibiano's child; so that if fraud was committed, it was the widow, Maria Gerardo, who was solely responsible, and neither Salud nor her minor children, appellants herein, can be held liable therefor. In the second place, granting that there was such fraud, relief therefrom can only be obtained within 4 years from its discovery, and the record shows that this period had elapsed long ago.

That defendant Milagros Barretto was a minor at the time the probate court distributed the estate of her father in 1939 does not imply that the said court was without jurisdiction to enter the decree of distribution.

Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she became of age five years later, in 1944. On that year, her cause of action accrued to contest on the ground of fraud the court decree distributing her father's estate and the four-year period of limitation started to run, to expire in 1948 (Section 43, Act 190). In fact, conceding that Milagros only became aware of the true facts in 1946 (Appellee's Brief, p. 27), her action still became extinct in 1950. Clearly, therefore, the action was already barred when in August 31, 1956 she filed her counterclaim in this case contesting the decree of distribution of Bibiano Barretto's estate.

The only instance that we can think of in which a party interested in a probate proceedings may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period, instead of an independent action the effect of which, if successful, would be, as in the instant case, for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of."

In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings for the settlement of the estate of Bibiano Barretto, duly approved by the Court of First Instance of Manila in 1939, in its Civil Case No. 49629, is not void for being contrary to either articles 1081 or 1814 of the Civil Code of 1889; (2) that Milagros Barretto's action to contest said partition and decree of distribution is barred by the statute of limitations; and (3) that her claim that plaintiffappellant guardian is a possessor in bad faith and should account for the fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is legally untenable. It follows that the plaintiffs' action for partition of the fishpond described in the complaint should have been given due course.

". . . It is argued that Lucia Milagros Barretto was a minor when she signed the partition, and that Maria Gerardo was not her judicially appointed guardian. The claim is not true. Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the project of partition that the guardianship proceedings of the minor Lucia Milagros Barretto are pending in the court, does not mean that the guardian had not yet been appointed; it meant that the guardianship proceedings, had not yet been terminated and as a guardianship proceedings begin with the appointment of a guardian, Maria Gerardo must have been already appointed when she signed the project of partition. There is, therefore, no irregularity or defect or error in the project of partition, apparent on the record of the testate proceedings, which shows that Maria Gerardo had no power or authority to sign the project of partition as guardian of the minor Lucia Milagros Barretto, and, consequently, no ground for the contention that the order approving the project of partition is absolutely null and void and may be attacked collaterally in these proceedings."

Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed and set aside in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto Datu the properties enumerated in said decision, and the same is affirmed in so far as it denies any right of said appellee to accounting. Let the records be returned to the court of origin, with instructions to proceed with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of the Office of the Register of Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in the complaint. No costs.

Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not have ignored that the distributee Salud was not her child, the act of said widow in agreeing to the oft-cited partition and distribution was a fraud on appellee's rights and entitles her to relief. In the first place, there is no evidence that when the estate of Bibiano Barretto

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37. Esculin vs. Esculin On the 19th of January, 1899, Emilio Antonio Escuin de los Santos executed a will before a notary public of Sevilla, Spain, stating therein that he was a native of Cavite, the son of Francisco Escuin and Eugenia de los Santos, the latter being deceased; that he was married about six months previously to Maria Teresa Ponce de Leon, and that he had no lawful descendants; the testator, however, stated in clause three of his will, that in case he had a duly registered successor, his child would be his sole and universal heir; but that if, as would probably be the case, there should be no such heir, then in clause four he named his said father Francisco Escuin, and his wife Maria Teresa Ponce de Leon his universal heirs, they to divide the estate in equal shares between them.

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Wills & Succession/ Atty Uribe The testator died on the 20th of January, 1899, as certified to by the municipal court of Magdalena, Sevilla, on the 20th of March, 1900. On the 30th of September, 1905, the court below found that Emilio Escuin y Batac was the recognized natural child of the late Emilio Escuin de los Santos, had by Julia Batac; that the testator was also the natural son of the defendant Francisco Escuin and Eugenia de los Santos, and was recognized by his father; and that the plaintiff minor, Emilio Escuin y Batac, is one of the heirs of the late testator. Upon the will having been admitted to probate, commissioners were appointed to consider claims against the estate, and, according to a report presented to the Court of First Instance on the 20th of June, 1907, one claim was allowed amounting to 3,696.50 pesetas. It appears in the proposed partition of the 3d of September, 1906, that, according to the opinion of the administrator by whom it was signed and the result of the proceedings, the property left by the testator, in accordance with the accounts passed upon by the court, amounted to P8,268.02 Deducting this amount from the funds of the estate, there remains a 5,014.81

balance

of

That the said credit of P1,321.40, equivalent to 3,696.50 pesetas, allowed by the commissioners, is the only claim presented within the legal term against the estate; that Francisco Escuin, the father of the testator, his wife or widow, Teresa Ponce de Leon, and his natural child, the minor Emilio Escuin y Batac, represented by his mother and guardian Julia Batac, are entitled to the succession; that, by setting aside one-third of the estate in favor of the natural son recognized in accordance with article 842 of the Civil Code, there only remains the question as to how the remaining two-thirds of the inheritance shall be bestowed, taking into account the directions of the testator in his will; that the same does not disclose that he had left any child by his wife; that the latter, as the widow of the testator, besides being a designated heir entitled to one-half of the hereditary funds, is entitled to the usufruct of the portion fixed by the law, and that the funds to be apportioned are composed wholly of cash or ready money. On the 30th of September, 1905, the court below found that Emilio Escuin y Batac was the recognized natural child of the late Emilio Escuin de los Santos, had by Julia Batac; that the testator was also the natural son of the defendant Francisco Escuin and Eugenia de los Santos, and was recognized by his father; and that the plaintiff minor, Emilio Escuin y Batac, is one of the heirs of the late testator. Until all the known creditors and the legatees have been paid, it shall be understood that the estate is under administration, says article 1026 of the Civil Code, and in conformity with this legal provision the supreme tribunal has established the doctrine that "only after payment of all the obligations of the estate can the net amount divisible among the heirs be known." (Decision of March 2, 1896.) Section 753 of the Code of Civil Procedure confirms the provision of the Civil Code and the legal doctrine mentioned above, inasmuch as it provides that, after payment of the debts, funeral charges, and expenses of administration, and the allowances for the expense of maintenance of the family of the deceased, the court shall assign the residue of the

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estate to the persons entitled to the same, naming the persons and proportions or parts to which each is entitled, etc. So that by reason of the claims made by the creditor of the estate of Emilio Escuin de los Santos and by her natural son, duly recognized by his father, an ordinary action should have been brought before the Court of First Instance, from whose judgment appeal may be taken to this court by means of the corresponding bill of exceptions under the provisions of section 777 of the Code of Civil Procedure; and while the ultimate decision in the matter of the said claims against the resolution of the commissioners has not become final, and until all the obligations of the estate have been paid, there can really be no inheritance, nor can it be distributed among the persons interested therein according to the will of the testator, or under the provisions of the law. With respect to the questions which form the basis of this litigation and refer to the second assignment of errors, it should be noted that the late testator did not leave any legitimate descendants or ascendants, but did leave a recognized natural child, the appellant minor, and a widow; that the said minor, Emilio Escuin y Batac, is the general heir of his natural father, the said testator, who recognized him while living (art. 807, Civil Code), and in the present case is entitled to onethird of his estate, which amount constitutes the legal portion of a natural child (art. 842 of the said code); and for the reason that the minor was ignored by his natural father in his will, the designation of heirs made therein was, as a matter of fact annulled by force of law, in so far as the legal portion of the said minor was thereby impaired. Legacies and betterments shall be valid, in so far as they are not illegal, for the reason that a testator can not deprive the heirs of their legal portions, except in the cases expressly indicated by law. (Arts. 763, 813, 814, Civil Code.) As has been seen, the testator wished to dispose of his property in his will, designating as heirs his natural father, Francisco Escuin, and his wife, Maria Teresa Ponce de Leon, altogether ignoring his recognized natural child who is his general heir. In view thereof, and for the reason that he exceeded his rights, the said designation of heirs became void in so far as it impaired the right of his general heir and deprived him of his legal portion; the will, however, is valid with respect to the two-thirds of the property which the testator could freely dispose of. (Arts. 763, 764, 806, 813, 842, Civil Code.) Notwithstanding the fact that the designation of heirs is annulled and that the law recognizes the title of the minor, Escuin y Batac, to one-third of the property of his natural father, as his lawful and general heir, it is not proper to assert that the late Emilio Escuin de los Santos died intestate in order to establish the conclusion that his said natural recognized child is entitled to succeed to the entire estate under the provisions of article 939 of the Civil Code, inasmuch as in accordance with the law a citizen may die partly testate and partly intestate (art. 764, Civil Code). It is clear and unquestionable that it was the wish of the testator to favor his natural father and his wife with certain portions of his property which, under the law, he had a right to dispose of by will, as he has done, provided the legal portion of his general heir was not thereby impaired, the two former persons being considered as legatees under the will. The above-mentioned will is neither null, void, nor illegal in so far as the testator leaves two-thirds of his property to his father and wife; testamentary provisions impairing the legal portion of a general heir shall be reduced in so far as they are illegal

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Wills & Succession/ Atty Uribe or excessive. (Art. 817, Civil Code.) The partition of the property of the said testator shall be proceeded with in accordance with the foregoing legal bases. By virtue of the foregoing considerations it is our opinion that the orders of the court below, of October 30, 1906, and August 24, 1907, should be reversed, and upon receipt of a certified copy of this decision the court below shall take action in accordance with the law and the terms herein contained with respect to the claims and appeals from the resolutions of the commissioners pending judicial decision. So ordered. Balanay vs. Martinez Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting the testate proceeding into an intestate proceeding and ordering the issuance of the corresponding notice to creditors (Special Case No. 1808). The antecedents of the appeal are as follows: Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his mother’s notarial will dated September 5, 1970 which is written in English. In that will Leodegaria Julian declared (a) that she was the owner of the "southern half" of nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land which she inherited from her father (par. III), and (c) that it was her desire that her properties should not be divided among her heirs during her husband’s lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par. IV). Then, in paragraph V of the will she stated that after her husband’s death (he was eighty-two years old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my properties") should be divided and distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the will her husband’s onehalf share of the conjugal assets. * Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence, preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate certain properties which he had received from the testatrix. Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed that he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he manifested that out of respect for his wife’s will he "waived and renounced" his hereditary rights in her estate in favor of their six children. In that same instrument he confirmed the agreement, which he and his wife had perfected before her death, that their conjugal properties would be partitioned in the manner indicated in her will. Montaña in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of the same date he asked that the corresponding notice to creditors be issued.

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The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner’s authorization), the trial court acted correctly in passing upon the will’s intrinsic validity even before its formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L19996, April 30, 1965, 13 SCRA 693). But the probate court erred in declaring in its order of February 28, 1974 that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June 18, 1973 it gave effect to the surviving husband’s conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate. The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to he presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873). The statement of the testatrix that she owned the "southern half" of the conjugal lands is contrary to law because, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But that illegal declaration does not nullify the entire will. It may be disregarded. The provision of the will that the properties of the testatrix should not be divided among her heirs during her husband’s lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article 1080 of the Civil Code which reads: "ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. "A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. (1056a)"

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Wills & Succession/ Atty Uribe The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced his hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to require that the legitimes be paid in cash. On the other hand, her estate may remain undivided only for a period of twenty years. So, the provision that the estate should not be divided during her husband’s lifetime would at most be effective only for twenty years from the date of her death unless there are compelling reasons for terminating the coownership (Art. 1083, Civil Code). Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the partition therein may be given effect if it does not prejudice the creditors and impair the legitimes. The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the children and the surviving spouse. It should be stressed that by reason of the surviving husband’s conformity to his wife’s will and his renunciation of his hereditary rights, his one-half conjugal share be a part of his deceased wife’s estate. His conformity had the effect of validating the partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs. Article 793 of the Civil Code provides that "property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect." In the instant case there is no doubt that the testatrix and her husband intended to partition the conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose of by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal estate, such partition has become valid, assuming that the will may be probated. The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and preterited her parents. Her will was intrinsically void because it preterited her compulsory heirs in the direct line. Article 854 of the Civil Code provides that "the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious." Since the preterition of the parents annulled the institution of the sister of the testatrix and there were no legacies and devises, total intestacy resulted (Art. 960[2], Civil Code). In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy. Moreover, he signified his conformity to his wife’s will and renounced his hereditary rights. It results that the lower court erred in not proceeding with the probate of the will as contemplated in its uncancelled order of

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June 18, 19713. Save in an extreme case where the will on its face is intrinsically void, it is the probate court’s duty to pass first upon the formal validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428). To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code). Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate. So compelling is the principle that intestacy should be avoided and that the wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762). As far as is legally possible, the expressed desire of the testator must be followed and the dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546). The law has a tender regard for the wishes of the testator as expressed in his will because any disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341). Solano vs. CA On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him. In his Answer, SOLANO denied paternity. On February 3, 1970, during the pendency of the suit, SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the DECEDENT as the only surviving heir mentioned in his Last Will and Testament probated on March 10, 1969, or prior to his death, in Special Proceedings No. 842 of the same Court. ZONIA entered her formal appearance as a "substitute defendant" on March 4, 1970 claiming additionally that she was the sole heir of her father, SOLANO, and asking that she be allowed to assume her duties as executrix of the probated Will with the least interference from the GARCIAS who were "mere pretenders to be illegitimate children of SOLANO". In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in the parties' respective Memoranda as: 1) the question of recognition of the GARCIAS; 2) the correct status of ZONIA, and 3) the hereditary share of each of them in view of the probated Will. 2 Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in toto (CA-G.R. No. 49018). ZONIA seeks a reversal of that affirmance in this petition, which was given due course. At the outset, we should state that we are bound by the findings of fact of both the Trial Court and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in fact, illegitimate children of the DECEDENT. The oral testimony and the documentary evidence of record inevitably point to that conclusion, as may be gleaned from the following

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Wills & Succession/ Atty Uribe background facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour he met a French woman, Lilly Gorand, who became his second wife in 1928. The union was short-lived as she left him in 1929. In the early part of 1930, SOLANO started having amorous relations with Juana Garcia, out of which affair was born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935, Emeteria Garcia was born (Exhibits "B" & "2"). Their birth certificates and baptismal certificates mention only the mother's name without the father's name. The facts establish, however, that SOLANO during his lifetime recognized the GARCIAS as his children by acts of support and provisions for their education. In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of this relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In her Birth Certificate, her status was listed as "illegitimate"; her mother as Trinidad Tuagnon; her father as "P.N.C." (Exhibit "V"), or "padre no conocido". Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1) to declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the estate in the same action despite the pendency of Special Proceedings No. 842; and 3) to declare null and void the institution of heir in the Last Will and Testament of SOLANO, which was duly probated in the same Special Proceedings No. 842, and concluding that total intestacy resulted. ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom; and distributing the shares of the parties in SOLANO's estate when said estate was under the jurisdiction and control of the Probate Court in Special Proceedings No. 842. Normally, this would be the general rule. However, a peculiar situation is thrust upon us here. It should be recalled that SOLANO himself instituted the petition for probate of the Will during his lifetime, That proceeding was not one to settle the estate of a deceased person that would be deemed terminated only upon the final distribution of the residue of the hereditary estate. With the Will allowed to probate, the case would have terminated except that it appears that the parties, after SOLANO's death, continued to file pleadings therein Secondly, upon motion of the GARCIAS, and over the objection of ZONIA, the Trial Court ordered the impleading of the estate of SOLANO and proceeded on that basis. In effect, therefore, the two cases were consolidated. The records further disclose that the action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the same Branch of the Court and before the same Presiding Judge. Thirdly, it is settled that the allowance of a Will is conclusive only as to its due execution. 5 A probate decree is not concerned with the intrinsic validity or legality of the provisions of the Will. 6 Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the facts, the GARCIAS and ZONIA were in the same category as illegitimate children; that ZONIA's acknowledgment as a "natural child" in a notarial document executed by SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous because at the time of her birth in 1941, SOLANO was still married to Lilly Gorand, his divorce having been obtained only in 1943, and, therefore, did not have the legal capacity to contract marriage at the time of

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ZONIA's conception, 7 that being compulsory heirs, the GARCIAS were, in fact, preterited from SOLANO's Last Will and Testament; and that as a result of said preterition, the institution of ZONIA as sole heir by SOLANO is null and void pursuant to Article 854 of the Civil Code. As provided in the foregoing provision, the disposition in the Will giving the usufruct in favor of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy, recognized in Article 563 of the Civil Code, 9 and should be respected in so far as it is not inofficious. 10 Since the legitime of illegitimate children consists of one-half (1/2) of the hereditary estate, 13 the GARCIAS and ZONIA each have a right to participation therein in the proportion of one-third (1/3) each. ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate. The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin, et al., 15 which held that where the institution of a universal heir is null and void due to preterition, the Will is a complete nullity and intestate succession ensues, is not applicable herein because in the Nuguid case, only a one-sentence Will was involved with no other provision except the institution of the sole and universal heir; there was no specification of individual property; there were no specific legacies or bequests. It was upon that factual setting that this Court declared: Acain vs. CA On May 29, 1984 petitioner Constantino Acain filed in 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-A-CEB (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) submitted 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. 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. 591A-CEB. 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 the deceased and the latter's widow Rosa Diongson Vda. de Acain) filed a motion to dismiss on the following grounds: (1) 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 preterited. (Rollo, p. 158). Said motion was denied by the trial judge. The pivotal issue in this case is whether or not private respondents have been preterited. Article 854 of the Civil Code provides:

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Wills & Succession/ Atty Uribe "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 be 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 was 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. Preterition 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" (Manresa, as cited in Nuguid v. Nuguid, supra, Maninang v. Court of Appeals, 114 SCRA [19821). 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. 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

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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. Leonidas, supra; Nuguid 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 v. 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. XII. RESERVA TRONCAL

Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (871) A number of Reservas and Reversions where allowed under the old civil code but they were eliminated under the new civil code leaving only the Reserva Troncal. The elimination was in line with one of the principal objectives of the new civil code in the law of succession; namely, to prevent the estate from being entailed. The following are some of the reasons for its abolition: 1. creates uncertainty in the pwnership of property, because of the suspended ownership the reservista has no enthusiasm to preserve or improve the property 2. confinement of property w/in a certain family for generations incompatible with the principle of socialization of ownership 3. reserve is limited to the legitimate members of the family, and the father or mother of a natural child who inherits property from this child, and who in turn acquired it from snother progenitor acquires absolute dominion of the property w/o reservation. 4. in reserve viudal, the surviving spouse is obliged to resrve properties left by deceased spouse to his if she remarries, but the concubine is not obliged, thus, giving ptotection to illegitimate relation.

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Wills & Succession/ Atty Uribe Purpose of Reserva troncal a. Resrve certain property in favor of certain relatives. b. maintain as is possible, with respect to the property to which it refers, a separation between the paternal and maternal lines, so that property of one line may not pass to the other, or through them to strangers. Nature of Reserva It creates a double resolutory condition to which the right of ownership of the person obliged to reserve is subjected. The resolutory condition, are first, the death of the ascendant obliged to reserve, and, second, the survivial at that moment of the relatives within the tird degree belonging to the line from which the property came. No reserve will exist in favor of illegitimate relatives, because the law has not used qualifying terms natural or illegitimate with respect to the descendant or ascendant or relatives it is to be presumed to refer only to legitimate ones. Relatives within the third degree: 1st degree 1. father or mother only when no descendants, 2nd degree 2. grandparents of the line where thw property came, brothers of full blood or half-blood 3rd degree 3. great GP, uncles by consanguinity full or half-blood, and nephews and nieces of full or half blood. 38. Sienes vs. Esparcia Appellants commence this action below to secure judgments (1) declaring null and void the sale executed by Paulina and Cipriana Yaeso in favor of appellees, the spouses Fidel Esparcia and Paulina Sienes; (2) ordering the Esparcia spouses to reconvey to appellants Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan), Oriental Negros; and (3) ordering all the appellees to pay, jointly and severally, to appellants the sum of P500.00 as damages, plus the costs of suit. In their answer appellees disclaimed any knowledge or information regarding the sale allegedly made on April 20, 1951 by Andrea Gutang in favor of appellants and alleged that if such sale was made, the same was void on the ground that Andrea Gutang had no right to dispose of the property subject matter thereof. They further alleged that said property had never been in possession of appellants, the truth being that appellees, as owners, had been in continuous possession thereof since the death of Francisco Yaeso. By way of affirmative defense and counterclaim, they further alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as the only surviving heirs of Francisco Yaeso, executed a public instrument of sale in favor of the spouses Fidel Esparcia and Paulina Sienes, the said sale having been registered together

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with an affidavit of adjudication executed by Paulina and Cipriana on July 18, 1951, as sole surviving heirs of the aforesaid deceased; that since then the Esparcias had been in possession of the property as owners. From the above decision the Sienes spouses interposed the present appeal, their principal contentions being, firstly, that the lower court erred in holding that Lot 3368 of the Cadastral Survey of Ayuquitan was a reservable property; secondly, in annuling the sale of said lot executed by Andrea Gutang in their favor; and lastly, in holding that Cipriana Yaeso, as reservee, was entitled to inherit said land. As held by the trial court, it is clear upon the facts already stated, that the land in question was reservable property. Francisco Yaeso inherited it by operation of law from his father Saturnino, and upon Francisco's death, unmarried and without descendants, it was inherited, in turn, by his mother, Andrea Gutang. The latter was, therefore, under obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said property came, if any survived her. The record discloses in this connection that Andrea Gutang died on December 13, 1951, the lone reservee surviving her being Cipriana Yaeso who died only on January 13, 1952 (Exh. 10). In connection with reservable property, the weight of opinion is that the reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (6 Manresa 268-269; 6 Sanchez Roman 1934). The Court has held in connection with this matter that the reservista has the legal title and dominion to the reservable property but subject to a resolutory condition; that he is like a life usufructuary of the reservable property; that he may alienate the same but subject to reservation, said alienation transmitting only the revocable and conditional ownership of the reservista, the rights acquired by the transferee being revoked or resolved by the survival of reservatorios at the time of death of the reservista (Edroso vs. Sablan, 25 Phil., 295; Lunsod vs. Ortega, 46 Phil., 664; Florentino vs. Florentino, 40 Phil., 480; and Director of Lands vs. Aguas, 63 Phil., 279). The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the condition that the vendees would definitely acquire ownership, by virtue of the alienation, only if the vendor died without being survived by any person entitled to the reservable property. Inasmuch as when Andrea Gutang died, Cipriano Yaeso was still alive, the conclusion becomes inescapable that the previous sale made by the former in favor of appellants became of no legal effect and the reservable property subject matter thereof passed in exclusive ownership to Cipriana. On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana Yaesco in favor of the spouse Fidel Esparcia and Paulina Sienes was subject to a similar resolutory condition. The reserve instituted by law in favor of the heirs within the third degree belonging to the line from which the reservable property came, constitutes a real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to reserve. In the present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the person obliged to reserve, died. Thus the former became the absolute owner of the reservable property

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Wills & Succession/ Atty Uribe upon Andrea's death. While it may be true that the sale made by her and her sister prior to this event, became effective because of the occurrence of the resolutory condition, we are not now in a position to reverse the appealed decision, in so far as it orders the reversion of the property in question to the Estate of Cipriana Yaeso, because the vendees — the Esparcia spouses — did not appeal therefrom. WHEREFORE, the appealed decision — as above modified — is affirmed, with costs, and without prejudice to whatever action in equity the Esparcia spouses may have against the Estate of Cipriana Yaeso for the reconveyance of the property in question. Florentino vs. Florentino That Apolonio Isabelo Florentino II married the first time Antonia Faz de Leon; that during the marriage he begot nine children called Jose, Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro, and Magdalena of the surname Florentino y de Leon; that on becoming a widower he married the second time Severina Faz de Leon with whom he had two children, Mercedes and Apolonio III of the surname Florentino y de Leon; that Apolonio Isabelo Florentino II died on February 13, 1890; that he was survived by his second wife Severina Faz de Leon and the ten children first above mentioned; that his eleventh son, Apolonio III, was born on the following 4th of March 1890. That on January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will before the notary public of Ilocos Sur, instituting as his universal heirs his aforementioned ten children, the posthumos ApoIonio III and his widow Severina Faz de Leon; that he declared, in one of the paragraphs of said will, all his property should be divided among all of his children of both marriages. That Apolonio Florentino III, the posthumos son of the second marriage, died in 1891; that his mother, Severina Faz de Leon, succeeded to all his property described in the complaint; that the widow, Severina Faz de Leon died on November 18, 1908, leaving a will instituting as her universal heiress her only living daughter, Mercedes Florentino; that, as such heir, said daughter took possession of all the property left at the death of her mother, Severina Faz de Leon; that among same is included the property, described in the complaint, which the said Severina Faz de Leon inherited from her deceased son, the posthumos Apolonio, as reservable property; that, as a reservist, the heir of the said Mercedes Florentino deceased had been gathering for herself alone the fruits of lands described in the complaint; that each and every one of the parties mentioned in said complaint is entitled to one-seventh of the fruits of the reservable property described therein, either by direct participation or by representation, in the manner mentioned in paragraph 9 of the complaint. In order to decide whether the plaintiffs are or are not entitled to invoke, in their favor, the provisions of article 811 of the Civil Code, and whether the same article is applicable to the question of law presented in this suit, it is necessary to determine whether the property enumerated in paragraph 5 of the complaint is of the nature of reservable property; and, if so, whether in accordance with the provision of the Civil Code in article 811, Severina Faz de Leon (the widow of the deceased Apolonio Isabelo Florentino) who inherited said property from her son Apolonio Florentino III (born after the death of his father Apolonio Isabelo) had the obligation to

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preserve and reserve same for the relatives, within the third degree, of her aforementioned deceased son Apolonio III. The posthumos son, Apolonio Florentino III, acquired the property, now claimed by his brothers, by a lucrative title or by inheritance from his aforementioned legitimate father, Apolonio Isabelo Florentino II. Although said property was inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound, according to article 811 of the Civil Code, to reserve the property thus acquired for the benefit of the relatives, within the third degree, of the line from which such property came. According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust, merely for the reason that said law imposes the obligation to reserve and preserve same for certain designated persons who, on the death of the said ascendants-reservists, (taking into consideration the nature of the line from which such property came) acquire the ownership of said property in fact and by operation of law in the same manner as forced heirs (because they are also such) said property reverts to said line as long as the aforementioned persons who, from the death of the ascendantreservists, acquire in fact the right of reservatarios (persons for whom property is reserved), and are relatives, within the third degree, of the descendant from whom the reservable property came. Any ascendant who inherits from his descendant any property, while there are living, within the third degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. He is, however, the legitimate owner of his own property which is not reservable, property and which constitutes his legitime, according to article 809 of the Civil Code. But if, afterwards, all of the relatives, within the third degree, of the descendant (from whom came the reservable property) die or disappear, the said property becomes free property, by operation of law, and is thereby converted into the legitime of the ascendant heir who can transmit it at his death to his legitimate successors or testamentary heirs. This property has now lost its nature of reservable property, pertaining thereto at the death of the relatives, called reservatarios, who belonged within the third degree to the line from which such property came. Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are the relatives, within the third degree, of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such. In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree of relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree, mentioned by

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Wills & Succession/ Atty Uribe law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree in accordance with article 811 of the Civil Code. There are then seven "reservatarios" who are entitled to the reservable property left at the death of Apolonio III; the posthumos son of the aforementioned Apolonio Isabelo II, to wit, his three children of his first marriage- Encarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro who are represented by their own twelve children respectively; and Mercedes Florentino, his daughter by a second marriage. All of the plaintiffs are the relatives of the deceased posthumos son, Apolonio Florentino III, within the third degree (four of whom being his half-brothers and the remaining twelve being his nephews as they are the children of his three half-brothers). As the first four are his relatives within the third degree in their own right and the other twelve are such by representation, all of them are indisputably entitled as reservatarios to the property which came from the common ancestor, Apolonio Isabelo, to Apolonio Florentino III by inheritance during his life-time, and in turn by inheritance to his legitimate mother, Severina Faz de Leon, widow of the aforementioned Apolonio Isabelo Florentino II. The judgment appealed from is also founded on the theory that article 811 of the Civil Code does not destroy the system of legitimate succession and that the pretension of the plaintiffs to apply said article in the instant case would be permitting the reservable right to reduce and impair the forced legitime which exclusively belongs to the defendant Mercedes Florentino, in violation of the precept of article 813 of the same Code which provides that the testator cannot deprive his heirs of their legitime, except in the cases expressly determined by law. Neither can he impose upon it any burden, condition, or substitution of any kind whatsoever, saving the provisions concerning the usufruct of the surviving spouse, citing the decision of the Supreme Court of Spain of January 4, 1911. The principal question submitted to the court for decision consists mainly in determining whether the property left at the death of Apolonio III, the posthumos son of Apolonio Isabelo II, was or was not invested with the character of reservable property when it was received by his mother, Severina Faz de Leon. The property enumerated by the plaintiffs in paragraph 5 of their complaint came, without any doubt whatsoever, from the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III without issue, the same passed by operation of law into the hands of his legitimate mother, Severina Faz de Leon, it became reservable property, in accordance with the provision of article 811 of the Code, with the object that the same should not fall into the possession of persons other than those comprehended within the order of succession traced by the law from Apolonio Isabelo II, the source of said property. If this property was in fact clothed with the character and condition of reservable property when Severina Faz de Leon inherited same from her son Apolonio, III, she did not thereby acquire the dominion or right of ownership but only the right of usufruct or of fiduciary, with the necessary obligation to preserve and to deliver or return it as such reservable property to her deceased son's relatives within the third degree, among whom is her daughter, Mercedes Florentino.

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Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and receives same from his descendant, therefore it does not form part of his own property nor become the legitimate of his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died (reservista), in which case said reservable property losses such character. With full right Severina Faz de Leon could have disposed in her will of all her own property in favor of her only living daughter, Mercedes Florentino, as forced heiress. But whatever provision there is in her will concerning the reservable property received from her son Apolonio III, or rather, whatever provision will reduce the rights of the other reservatarios, the half brothers and nephews of her daughter Mercedes, is unlawful, null and void, inasmuch as said property is not her own and she has only the right of usufruct or of fiduciary, with the obligation to preserve and to deliver same to the reservatarios, one of whom is her own daughter, Mercedes Florentino. For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino, coming from the in heritance of her mother Severina Faz de Leon, has been reduced and impaired; and the application of article 811 of the Code to the instant case in no way prejudices the rights of the defendant Mercedes Florentino, inasmuch as she is entitled to a part only of the reservable property, there being no lawfull or just reason which serves as real foundation to disregard the right to Apolonio III's other relatives, within the third degree, to participate in the reservable property in question. As these relatives are at present living, claiming for it with an indisputable right, we cannot find any reasonable and lawful motive why their rights should not be upheld and why they should not be granted equal participation with the defendant in the litigated property. Just because she has a forced heiress, with a right to her inheritance, does not relieve Severina of her obligation to reserve the property which she received from her deceased son, nor did same lose the character of reservable property, held before the reservatarios received same For the foregoing reasons it follows that with the reversal of the order of decision appealed from we should declare, as we hereby do, that the aforementioned property, inherited by the deceased Severina Faz de Leon from her son Apolonio Florentino III, is reservable property; that the plaintiffs, being relatives of the deceased Apolonio III within the third degree, are entitled to six-sevenths of said reoervable property; that the defendant Mercedes is entitled to the remaining seventh part thereof; that the latter, together with her husband Angel Encarnacion, shall deliver to the plaintiffs, jointly, sixsevenths of the fruits or rents, claimed from said portion of the land and of the quantity claimed, from January 17, 1918, until fully delivered; and that the indemnity for one thousand pesos (P1,000) prayed for in the complaint is denied, without special findings as to the costs of both instances. So ordered. Chua vs. CFI It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar alias Sy Quio, he sired three children, namely: Ignacio, Lorenzo and Manuel, all surnamed Frias Chua. When Patricia S. Militar died, Jose Frias Chua contracted a second marriage with Consolacion de la Torre with whom he had a child by the name of Juanito Frias Chua. Manuel Frias Chua died without leaving any issue. Then in

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Wills & Succession/ Atty Uribe 1929, Jose Frias Chua died intestate leaving his widow Consolacion de la Torre and his son Juanito Frias Chua of the second marriage and sons Ignacio Frias Chua and Lorenzo Frias Chua of his first marriage. In Intestate Proceeding No. 4816, the lower court issued an order dated January 15, 1931 1 adjudicating, among others, the one-half (1/2) portion of Lot No. 399 and the sum of P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la Torre, the other half of Lot No. 399 in favor of Juanito Frias Chua, his son in the second marriage; marriage; P3,000.00 in favor of Lorenzo Frias Chua; and P1,550.00 in favor of Ignacio Frias, Chua , his sons in the second marriage; By the virtue of said adjudication, Transfer Certificate of Title No. TR-980 (14483) 2 dated April 28, 1932 was issued by the Register of Deeds in the names of Consolacion de la Torre and Juanito Frias Chua as ownerspro-indiviso of Lot No. 339. On February 27, 1952, Juanito Frias Chua of the second marriage died intestate without any issue. After his death, is mother Consolacion de la Torre succeeded to his pro-indiviso share of her son Juanito as a result of which Transfer Certificate of Title No. 31796 covering the whole Lot No. 399 was issued in her name. Then on March 5, 1966, Consolacion de la Torre died intestate leaving no direct heir either in the descending or ascending line except her brother and sisters. on May 11, 1966 before the respondent Court of First Instance of Negros Occidental, Branch V, praying that the one-half (1/2) portion of Lot No. 399 which formerly belonged to Juanito Frias Chua but which passed to Consolacion de la Torre upon the latter's death, be declared as reservable property for the reason that the lot in question was subject to reserva troncal pursuant to Article 981 of the New Civil code. private respondent as administratrix of the estate of the Consolacion de la Torre and the heirs of the latter traversed individually the complaint of petitioners. 4 On July 29, 1968, the respondent Court rendered a decision dismissing the complaint of petitioners. Hence this instant petition. The pertinent provision on reserva troncal under the New Civil Code provides: "ART. 891. The ascendant who inherits from his descendant any property which the latter may have required by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and belong to the line Iron which said property came." Pursuant to the foregoing provision, in order that a property may be impressed with a reservable character the following requisites must exist, to wit: (1) that the property was acquired by a descendant from an ascendant or from a brother or sister by gratuitous title; (2) that said descendant died without an issue: (3) that the property is inherited by another ascendant by operation of law; and (4) that there are relatives within the third degree belonging to the line from which said property came. 5 In the case before Us, all of the foregoing requisites are present. Thus, as borne out by the records, Juanito Frias Chua of the second marriage died intestate in 1952; he died without leaving any issue; his pro-indiviso of 1/2 share of Lot No. 399 was acquired by his mother, Consolacion de la Torre

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by operation of law. When Consolacion de la Torre died, Juanito Frias Chua who died intestate had relatives within the third degree. These relatives are Ignacio Frias Chua and Dominador Chua and Remedios Chua, the supposed legitimate children of the deceased Lorenzo Frias Chua, who are the petitioners herein. The crux of the problem in instant petition is focused on the first requisite of reserva troncal — whether the property in question as acquired by Juanito Frias Chua from his father, Jose Frias Chua, gratuitously or not. In resolving this point, the respondent Court said: We are not prepared to sustain the respondent Court's conclusion that the lot in question is not subject to a reserva troncal under Art. 891 of the New Civil Code. It is, As explained by Manresa which this Court quoted with approval in Cabardo v. Villanueva, 44 Phil. 186, "The transmission is gratuitous or by gratuitous title when the recipient does not give anything in return." It matters not whether the property transmitted be or be not subject to any prior charges; what is essential is that the transmission be made gratuitously, or by an act of mere liberality of the person making it, without imposing any obligation on the part of the recipient; and that the person receiving the property gives or does nothing in return; or, as ably put by an eminent Filipino commentator, 6 "the essential thing is that the person who transmits it does so gratuitously, from pure generosity, without requiring from the transferee any prestation." It is evident from the record that the transmission of the property in question to Juanito Frias Chua of the second marriage upon the death of his father Jose Frias Chua was by means of a hereditary succession and therefore gratuitous. But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20 is imposed upon Consolacion de la Torre and Juanito Frias Chua not personally by the deceased Jose Frias Chua in his last will and testament but by an order of the court in the Testate Proceeding No. 4816 dated January 15, 1931. As long as the transmission of the property to the heirs is free from any condition imposed by the deceased himself and the property is given out of pure generosity, it is gratuitous. It does not matter if later the court orders one of the heirs, in this case Juanito Frias Chua, to pay the Standard Oil Co. of New York the amount of P3,971.20 This does not change the gratuitous nature of the transmission of the property to him. As far as the deceased Jose Frias Chua is concerned the transmission of the property to his heirs is gratuitous. This being the case the lot in question is subject to reserva troncal under Art. 891 of the New Civil Code. De papa vs. Camacho They stipulate that Romana Tioco during her lifetime gratuitously donated four (4) parcels of land to her niece Toribia Tioco (legitimate sister of plaintiffs), which parcels of land are presently covered by Transfer Certificates of Title Nos. A-64165, 64166 and 64167 of the Registry of Deeds of Manila, copies of which are attached to this stipulation as Annexes 'B', 'B-1', and 'B-2'. They stipulate that Toribia Tioco died intestate in 1915, survived by her husband, Eustacio Dizon, and their two legitimate children, Faustino Dizon and Trinidad Dizon (mother of defendant Dalisay D. Tongko-Camacho) and leaving the afore-mentioned four (4) parcels of land as the inheritance of her said two children in equal pro-indiviso shares.

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Wills & Succession/ Atty Uribe They stipulate that in 1937, Faustino Dizon died intestate, single and without issue, leaving his one-half (1/2) pro-indiviso share in the seven (7) parcels of land above-mentioned to his father, Eustacio Dizon, as his sole intestate heir, who received the said property subject to a reserva troncal which was subsequently annotated on the Transfer Certificates of Title Annexes 'B', 'B-l', 'B-2', 'C' and 'C-1'. They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and her rights and interests in the parcels of land abovementioned were inherited by her only legitimate child, defendant Dalisay D. Tongko-Camacho, subject to the usufructuary right of her surviving husband, defendant Primo Tongko. They stipulate that on June 14, 1965, Eustacio Dizon died intestate, survived his only legitimate descendant, defendant Dalisay D. Tongko-Camacho. The parties agree that defendant Dalisay D. Tongko-Camacho now owns one-half (1/2) of all the seven (7) parcels of land abovementioned as her inheritance from her mother, Trinidad Dizon-Tongko. The parties hereby agree to submit for judicial determination in this case the legal issue of whether defendant Dalisay D. Tongko-Camacho is entitled to the whole of the seven (7) parcels of land in question, or whether the plaintiffs, as third degree relatives of Faustino Dizon are reservatarios (together with said defendant) of the one-half pro-indiviso share therein which was inherited by Eustacio Dizon from his son Faustino Dizon, and entitled to three-fourths (3/4) of said one-half proindiviso share, or three-eights (3/8) of said seven (7) parcels of land, and, therefore, to three eights (3/8) of the rentals collected and to be collected by defendant Dalisay P. Tongko Camacho from the tenants of said parcels of land, minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals. In view of the fact that the parties are close blood relatives and have acted upon legal advice in pursuing their respective claims, and in order to restore and preserve harmony in their family relations, they hereby waive all their claims against each other for damages (other than legal interest on plaintiffs' share in the rentals which this Honorable Court may deem proper to award), attorney's fees and expenses of litigation which shall be borne by the respective parties." 1 The issue raised is whether, as contended by the plaintiffsappellees and ruled by the lower Court, all relatives of the praepositus within the third degree in the appropriate line succeed without distinction to the reservable property upon the death of the reservista, as seems to be implicit in Art. 891 of the Civil Code, which reads: or, as asserted by the defendantappellant, the rights of said relatives are subject to, and should be determined by, the rules on intestate succession. That question has already been answered in Padura vs. Baldovino, 3 where the reservatario was survived by eleven nephews and nieces of the praepositus in the line of origin, four of whole blood and seven of half blood, and the claim was also made that all eleven were entitled to the reversionary property in equal shares. This Court, speaking through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to be controlling, and ruled that the nephews and nieces of whole blood were each entitled to a share double that of each of the nephews and nieces of half blood in accordance with Article 1006 of the Civil Code.

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"The issue in this appeal may be formulated as follows: In a case of reserva troncal where the only reservatarios (reserves) surviving the reservista, and belonging to the line of origin, are nephews of the descendant (prepositus), but some are nephews of the half blood and the others are nephews of the whole blood, should the reserved properties be apportioned among them equally, or should the nephews of the whole blood take a share twice as large as that of the nephews of the half blood? The case is one of first impression and has divided the Spanish commentators on the subject. After mature reflection, we have concluded that the position of the appellants is correct. The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third degree relatives belonging to the line from which the property originally came, and avoid its being dissipated into and by the relatives of the inheriting ascendant (reservista). "Following the order prescribed by law in legitimate succession when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in Article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are within the third degree of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such. "In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree of relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came . . ." Proximity of degree and right of representation are basic principles of ordinary intestate succession; so is the rule that whole blood brothers and nephews are entitled to a share double that of brothers and nephews of half blood. If in determining the rights of the reservatarios inter se, proximity of degree and the right of representation of nephews are made to apply, the rule of double share for immediate collaterals of the whole blood should be likewise operative. In other words, the reserva troncal merely determines the group of relatives (reservatarios) to whom the property should be returned; but within that group, the individual right to the property should be decided by the applicable rules of ordinary intestate succession, since Art. 891 does not specify otherwise. This conclusion is strengthened by the circumstance that the reserva being an exceptional case, its application should be limited to what is strictly needed to accomplish the purpose of the law. Reversion of the reservable property being governed by the rules on intestate succession, the plaintiffs-appellees must be held without any right thereto because, as aunt and uncles, respectively, of Faustino Dizon (the praepositus), they are

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Wills & Succession/ Atty Uribe excluded from the succession by his niece, the defendantappellant, although they are related to him within the same degree as the latter. It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or widow. The present Civil Code of the Philippines merely placed the spouse on a par with the nephews and nieces and brothers and sisters of the deceased, but without altering the preferred position of the latter vis a vis the other collaterals." This conclusion is fortified by the observation, also made in Padura, supra, that as to the reservable property, the reservatarios do not inherit from the reservista, but from the descendant praepositus: ". . . It is likewise clear that the reservable property is no part of the estate of the reservista, who may not dispose of it by will, as long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 237). The latter, therefore, do not inherit from the reservista, but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista. "The contention that an intestacy proceeding is still necessary rests upon the assumption that the reservatario will succeed in, or inherit, the reservable property from the reservista. This is not true. The reservatario is not the reservista's successor mortis causa nor is the reservable property part of the reservista's estate; the reservatario receives the property as a conditional heir of the descendant (prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservista, the matter must be deemed to have enjoyed no more than a life interest in the reservable property. It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to the prepositus (the appellee in this case) becomes, automatically and by operation of law, the owner of the reservable property. As already stated, that property is no part of the estate of the reservista, and does not even answer for the debts of the latter . . ." Had the reversionary property passed directly from the praepositus, there is no doubt that the plaintiffs-appellees would have been excluded by the defendant-appellant under the rules of intestate succession. There is no reason why a different result should obtain simply because "the transmission of the property was delayed by the interregnum of the reserva;" 6 i.e., the property took a "detour" through an ascendant — thereby giving rise to the reservation — before its transmission to the reservatario. Upon the stipulated facts, and by virtue of the rulings already cited, the defendant-appellant Dalisay Tongko-Camacho is entitled to the entirety of the reversionary property to the exclusion of the plaintiffs-appellees. XIV. RESERVA ADOPTIVA

P.D. 603; Art. 39. Effects of Adoption. - The adoption shall:

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(1) Give to the adopted person the same rights and duties as if he were a legitimate child of the adopter: Provided, That an adopted child cannot acquire Philippine citizenship by virtue of such adoption: (2) Dissolve the authority vested in the natural parent or parents, except where the adopter is the spouse of the surviving natural parent; (3) Entitle the adopted person to use the adopter's surname; and (4) Make the adopted person a legal heir of the adopter: Provided, That if the adopter is survived by legitimate parents or ascendants and by an adopted person, the latter shall not have more successional rights than an acknowledged natural child: Provided, further, That any property received gratuitously by the adopted from the adopter shall revert to the adopter should the former predecease the latter without legitimate issue unless the adopted has, during his lifetime, alienated such property: Provided, finally, That in the last case, should the adopted leave no property other than that received from the adopter, and he is survived by illegitimate issue or a spouse, such illegitimate issue collectively or the spouse shall receive onefourth of such property; if the adopted is survived by illegitimate issue and a spouse, then the former collectively shall receive onefourth and the latter also one-fourth, the rest in any case reverting to the adopter, observing in the case of the illegitimate issue the proportion provided for in Article 895 of the Civil Code. The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him, except that if the latter are both dead, the adopting parent or parents take the place of the natural parents in the line of succession, whether testate or interstate.

Teotica vs. Del Val Chan Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in the City of Manila leaving properties worth P600,000.00. She left a will written in Spanish which she executed at her residence in No. 2 Legarda St., Quiapo, Manila. She affixed her signature at the bottom of the will and on the left margin of each and every page thereof in the presence of Pilar Borja, Pilar G. Sanchez, and Modesto Formilleza, who in turn affixed their signatures below the attestation clause and on the left margin of each and every page of the will in the presence of the testatrix and of each other. Said will was acknowledged before Notary Public Niceforo S. Agaton by the testatrix and her witnesses. Among the many legacies and devises made in the will was one of P20,000.00 to Rene A. Teotico, married to the testatrix's niece named Josefina Mortera. To said spouses the

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Wills & Succession/ Atty Uribe testatrix left the usufruct of her interest in the Calvo building, while the naked ownership thereof she left in equal parts to her grandchildren who are the legitimate children of said spouses. The testatrix also instituted Josefina Mortera as her sole and universal heir to all the remainder of her properties not otherwise disposed of in the will. Ana del Val Chan, claiming to be an adopted child of Francisca Mortera, a deceased sister of the testatrix, as well as an acknowledged natural child of Jose Mortera, a deceased brother of the same testatrix, filed on September 2, 1955 an opposition to the probate of the will alleging the following grounds: (1) said will was not executed as required by law; (2) the testatrix was physically and mentally incapable to execute the will at the time of its execution; and (3) the will was executed under duress, threat or influence of fear. After the parties had presented their evidence, the probate court rendered its decision on November 10, 1960 admitting the will to probate but declaring the disposition made in favor of Dr. Rene Teotico void with the statement that the portion to be vacated by the annulment should pass to the testatrix's heirs by way of intestate succession. The motions for reconsideration above adverted to having been denied, both petitioner and oppositor appealed from the decision, the former from that portion which nullifies the legacy in favor of Dr. Rene Teotico and declares the vacated portion as subject of succession in favor of the legal heirs, and the latter from that portion which admits the will to probate. And in this instance both petitioner and oppositor assign several error which, stripped of non-essentials, may be boiled down to the following: (1) Has oppositor Ana del Val Chan the right to intervene in this proceeding?; (2) Has the will in question been duly admitted to probate?; and (3) Did the probate court commit an error in passing on the intrinsic validity of the provisions of the will and in determining who should inherit the portion to be vacated by the nullification of the legacy made in favor of Dr. Rene Teotico? It is a well-settled rule that in order that a person may be allowed to intervene in a probate proceeding he must have an interest in 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 (Ngo The Hua vs. Chung Kiat Hua, et al., L-17091, September 30, 1963); and an interested party has been defined as one who would be benefitted by the estate such as an heir or one who has a claim against the estate like a creditor (Idem.). On the other hand, in Saguinsin vs. Lindayag, et al., L-17750, December 17, 1962, this Court said: "According to Section 2, Rule 80 of the Rules of Court, a petition for letters of administration must be filed by an 'interested person.' An interested party has been defined in this connection as one who would be benefitted by the estate, such as an heir, or one who has a claim against the estate, such as a creditor (Intestate Estate of Julio Magbanwa 40 O.G., 1171). And it is well settled in this jurisdiction that in civil actions as well as special proceedings, the interest required in order that a person may be a party thereto must be material and direct, and not merely indirect or contingent. (Trillana vs. Crisostomo, G. R. No. L-3370, August 22, 1951; Rapinosa vs. Barrion, 70 Phil. 311)." The question now may be asked: Has oppositor any interest in any of the provisions of the will, and, in the negative, would

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she acquire any right to the estate in the event that the will is denied probate? Under the terms of the will, oppositor has no right to intervene because she has no interest in the estate either as heir, executor, or administrator, nor does she have any claim to any property affected by the will, because it nowhere appears therein any provision designating her as heir, legatee or devisee of any portion of the estate. She has also no interest in the will either as administratrix or executrix. Neither has she any claim against any portion of the estate because she is not a co-owner thereof, and while she previously had an interest in the Calvo building located in Escolta, she had already disposed of it long before the execution of the will. "'Between the natural child and the legitimate relatives of the father or mother who acknowledged it, the Code denies any right of succession. They cannot be called relatives and they have no right to inherit. Of course, there is a blood tie, but the law does not recognize it. In this, article 943 is based upon the reality of the facts and upon the presumptive will of the interested parties; the natural child is disgracefully looked down upon by the legitimate family; the legitimate family is, in turn, hated by the natural child; the latter considers the privileged condition of the former and the resources of which it is thereby deprived; the former, in turn, sees in the natural child nothing but the product of sin, a palpable evidence of a blemish upon the family. Every relation is ordinarily broken in life; the law does no more them recognize this truth, by avoiding further grounds of resentment.' (7 Manresa, 3d ed., p. 110.)" The oppositor cannot also derive comfort from the fact that she is an adopted child of Francisca Mortera because under our law the relationship established by adoption is limited solely to the adopter and the adopted does not extend to the relatives of the adopting parents or of the adopted child except only as expressly provided for by law. Hence, no relationship is created between the adopted and the collaterals of the adopting parents. As a consequence, the adopted is an heir of the adopter but not of the relatives of the adopter. "The relationship established by the adoption, however, is limited to the adopting parent, and does not extend to his other relatives, except as expressly provided by law. Thus, the adopted child cannot be considered as a relative of the ascendants and collaterals of the adopting parents, nor of the legitimate children which they may have after the adoption, except that the law imposes certain impediments to marriage by reason of adoption. Neither are the children of the adopted considered as descendants of the adopter. The relationship created is exclusively between, the adopter and the adopted, and does not extend to the relatives of either." (Tolentino, Civil Code of the Philippines, Vol. 1, p. 652) We have examined the evidence on the matter and we are fully in accord with the foregoing observation. Moreover, the mere claim that Josefina Mortera and her husband Rene Teotico had the opportunity to exert pressure on the testatrix simply because she lived in their house several years prior to the execution of the will and that she was old and suffering from hypertension in that she was virtually isolated from her friends for several years prior to her death is insufficient to disprove what the instrumental witnesses had testified that the testatrix freely and voluntarily and with full consciousness of the solemnity of the occasion executed the will under consideration. The exercise of improper pressure and undue

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Wills & Succession/ Atty Uribe influence must be supported by substantial evidence and must be of a kind that would overpower and subjugate the mind of the testatrix as to destroy her free agency and make her express the will of another rather than her own (Coso vs. Deza, 42 Phil., 596). The burden is on the person challenging the will that such influence was exerted at the time of its execution, a matter which here was not done, for the evidence presented not only is sufficient but was disproved by the testimony the instrumental witnesses. The question of whether the probate court could determine the intrinsic validity of the provisions of a will has been decided by this Court in a long line of decisions among which the following may be cited: "Opposition to the intrinsic validity or legality of the provisions of the will cannot be entertained in probate proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law." "To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625.) The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid." II. DISINHERITANCE Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. (848a) Disinheritance may be defined as the act by which the testator, for a just cause, deprives a compulsory heir of his right to the legitime. It is a means given to the testator to punish such of his compulsory heirs who have committed acts which render them unworthy of benefit or generosity. The law saves the testator from the pain of seeing a portion of his property pass forcibly to an ungrateful heir or to one who may have brought dishonor to him. A disinheritance totally excludes the disinherited heir from the inheritance not only the legitme but the entire amount that he would have received as intestate heir. Ratio: the law of intestacy is merely the presumed will of the testator, and cannot prevail over the expressed will in the form of a valid disinheritance. If the disinheritance deprives the compulsory heir of his legitime reserved by law to him all the more that he should be deprived of the portion which ca nbe freely disposed of. As to the intestate heirs such as the collateral relatives or those within the fifth civil degree of consanguinity the testator may disinherit them for any reason at all. They are not heirs protected by law as a compulsory heir designated. Since they are mere heirs of the presumed will their succession depends only upon the discretion of the testator or his presumed will when none was made. Art. 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. (849)

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Art. 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it. (850) Requisites of disinheritance: 1. 2. 3. 4. 5. 6. 7.

heir must be designated by name as to leave no doubt; must be for cause provided by law; made in the will; made expressly stating the causes in the will; cause msut be certain, true , and proved must be unconditional; must be total

There can be no extension of the causes for disinheritance by analogy. The causes assigned by the testator may be graver or more serious than those given by the law, but if they are not among those enumerated by the law, the disinheritance will be ineffective. The will must be valid. Otherwise, the disinheritance will not be effective. The law does not admit tacit disinheritance. The last will of a person may be expressed in different statements, all of them combined being considered as one last expression of his will mortis causa. There will be a valid disinheritance if the cause for it has been expressed in one statement, and the disinheritance is made in another, provided that the necessary connection between the cause and the disinheritance is clearly established. As a general rule, a disineritance must be unconditional. But when the disinheritance is made in the form of a conditional pardon, it is generally considered as walid. In such case, there is an existing legal cause for disinheritance, but the pardon for such cause is made dependent upon some condition. The condition, however, should be related to the cause for disinheritance, and not by a mere caprice or whim of the testator. Ir is clear that it is the conditional pardon, and not the conditional disinheritance, properly speaking, that is allowable. A partial disinheritance with partial pardon is inconceivable. The offense is one; it cannot be separated into component parts. The testator cannot be partly offended and partly not. Art. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a) This article pertain to effects of a disinheritance which does not have one or more of the essential requisites for its validity. It likewise applies to cases of reconciliation after a disinheritance has been made.

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Wills & Succession/ Atty Uribe The ineffective disinheritance does not affect the disposition of the testator with respect to the free portion. The reason is the disinheritance in this case refers only only to the legitime of the heir, and therefore, it is only this portion that is affected by the nullity or ineffectiveness of such disinheritance. Where the disinheritance is ineffective in this case, the compulsory heir must be given all that he is entitiled to receive as if the disinheritance has not been made, without prejudice to lawful dispositions made by the testator in favor of others. Art. 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;

2. 3. 4. 5. 6. 7.

1. 2. 3.

Judicial demand for support is not necessary. The law does not require it, the question of whether there has been a refusal to give such support without justifiable cause is open to proof if the disinherited child or descendant denies it. Article 303 gives cause for the termination of the obligation the support and these are justifiable grounds to refuse support except of course the death of the preson entitiled to support. Art. 303. The obligation to give support shall also cease: (1) Upon the death of the recipient; (2) When the resources of the obligor have been reduced to the point where he cannot give the support without neglecting his own needs and those of his family; (3) When the recipient may engage in a trade, profession, or industry, or has obtained work, or has improved his fortune in such a way that he no longer needs the allowance for his subsistence;

(6) Maltreatment of the testator by word or deed, by the child or descendant; (7) When a child or descendant leads a dishonorable or disgraceful life;

(4) When the recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance;

(8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)

(5) When the recipient is a descendant, brother or sister of the obligor and the need for support is caused by his or her bad conduct or by the lack of application to work, so long as this cause subsists. (152a)

Attempt against the life includes all the different degrees of commission of the crime, such as attempted, frustrated, and consummated. It is essential though, that the heir be convicted despite the following:

c.

Exception on attempt against the life are the following: 1.

intention is lacking

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act of accusing the testator; judicial declaration that such accusation is false; offense charged is punishable be 6 years imprisonment.

The heir convicted of adultery or concubinage with the spouse of testator is disinherited by the law. But the law does not provide when the testator himself is guilty of adultery. In such case article 1028 will apply in relation to article 729, prohibition to donate to a paramour.

(5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;

prescription of penalty; pardon and amnesty both of which imply conviction; mere accomplice in the crime

or

Elements od false accusation:

(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

a. b.

conviction for mere reckless imprudence negligence though mitigated justifying circumstance under the RPC accessory after the fact prosecution dismissed even if provisional only prescription of the crime appeal to the higher court reverses conviction

Maltreatment by deed covers all acts of violence against the testator short of an attempt against the life. Maltreatment by word amounts to slander addressed directly against the testator himself conviction, though, is not necessary. Except when: 1. 2.

unintentional; on account of lack of discernment due to tender age or mental incapacity

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Wills & Succession/ Atty Uribe What is dishonorable or disgraceful life is largely a matter of appreciation and opinion. If denied, the burden of proof is lodeged to the others interested in the estate. Ultimately, it is the opinion of the court which will be the basis of the disinheritance. The conviction of the crime which carries the penalty of Civil interdiction must be by final judgement.

Loss of parental are provided for in the Family Code. Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates: (1) Upon adoption of the child; (2) Upon appointment of a general guardian; (3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;

Art. 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate: (1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue;

(4) Upon final judgment of a competent court divesting the party concerned of parental authority; or

(2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

Art. 230. Parental authority is suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. (330a)

(3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false;

Art. 231. The court in an action filed for the purpose in a related case may also suspend parental authority if the parent or the person exercising the same:

(4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator; (5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (6) The loss of parental authority for causes specified in this Code; (7) The refusal to support the children or descendants without justifiable cause; (8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. (756, 854, 674a) Abandonment should be understood in a general sense, so as to include failure to give due care, attention, and support. What is corrupt and immoral life will ultimately be MATTER OF JUDICIAL APPRAISAL and opinion, if the parent denies this cause for disinheritance. The acts which the daughter has been indiuced by the parent to commit should be proved. Daughters in the article must be construed to include all female descendants. Attempt against the virtue does not require final conviction. It is enough that he has committed acts which would have amounted to rape, seduction, or acts of lasciviousness, against such daughter.

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(5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a)

(1) Treats the child with excessive harshness or cruelty; (2) Gives the child corrupting orders, counsel or example; (3) Compels the child to beg; or (4) Subjects the child or allows him to be subjected to acts of lasciviousness. The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority. If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances. The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated. (33a) Art. 232. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority. (n) There are temporary loss of parental authority which causes disinheritance but will the recovery of authority revoke the disinheritance? No. the cause for disinheritance subsists even when parental authority is regained. The reason advanced is

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Wills & Succession/ Atty Uribe that the real cause for disinheritance is not the loss of the parental authority, but the fact of having committed something sufficient to occasion such loss. The right to inherit is odious, because it involves the deprivation of property; this fact, together with the fact that disinheritaqnce is an exception to the rules of legitime justifies a strict construction.

(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;

Attempt against the life does not require conviction of the offending parent. But the reconciliation between the offending parent and the parent against whose life the attempt was made deprives the child of the right to disinherit the offender.

(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.

Art. 921. The following shall be sufficient causes for disinheriting a spouse: (1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false; (3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made; (4) When the spouse has given cause for legal separation; (5) When the spouse has given grounds for the loss of parental authority; (6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a) It is the fact of having given cause for the legal separation which is the ground; in other words, it is necessary that the legal separation be actually obtained. Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent;

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(8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or

For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a)

Art. 63. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; (2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2); (3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a)

Art. 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made. (856) General pardon is not sufficient. The pardon must expressly refer to the heir disinherited and specifically to the acts causing the disinheritance. Such pardon must be accepted by the heir. There must be a real reconciliation between the parties. There are some grounds for disinheritance which are also causes for incapacity by reason of unworthiness. What then would be the effect of a subsequent reconciliation between the parties, if a disinheritance has already been made on any of the grounds which are also causes for unworthiness? Same effect, the heir may inherit as a CH and intestate. Incapacity by reason of unworthiness is merely an expression of the implied will of a person who has not expressed his intention in a will. If the express intention, manifested by the testator in a disinheriting clause in a will, is rendered ineffective by a subsequent reconciliation, how can the implied intention be logically held to exist?

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Wills & Succession/ Atty Uribe If a disinheritance has been made, and then reconciliation takes place, it will be the same as if there had been no disinheritance. The disinheritance does not legally exist, and the rights established by law in favor of the person provisionally disinherited recover their supremacy over the express disposition of thetestator. Disinheritance may be revoked by: 1. reconciliation; 2. subsequent institution of the disinherited heir; 3. the nullity of the will containing the disinheritance, such as when denied probate. Once revoked it cannot be renewed except for other causes subsequent to the revocation. Thus, after reconciliation a new disinheritance can be based only on new grounds. Art. 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime. (857) The causes of disinheritance are personal to the disinherited heir; he alone is at fault, and nobody else should suffer the effects of such culpability. His children and ascendants therefore should not be penalized for acts not imputable to them. The article allows the children and descendants of the person disinherited to take his place and retain the rights of compulsory heirs in respect to the legitime. The disinherited person can be represented only if he is a child or descendant, a disinherited ascendant or spouse cannot be represented. Right of representation applies. The representation should extend to everything that would have passed to the disinherited heir by operation of law; this includes the amount that pertains to him as intestate heir and not only that as compulsory heir.

the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a) T: The matters mentioned in this article are testamentary in nature; they constitute expressions of the will or disposition of the testator. Hence, pursuant to Art. 784, it cannot be delegated. B: The ff. constitute the essence of will making or the exercise of the disposing power, and thus, non-delegable: 4. 5. 6.

the designation of heirs, devisees, legatees; the duration or efficacy of such designation including such things as conditions, terms, substitutions the determination of the portions they are to recieve

Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (n) Art. 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. The heir may be instituted to succeed to the whole or to an aliquot part of the inheritance. The existence of the institution does not depend upon the designation or name which the testator gives to his testamentary disposition. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. (764) Art. 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.

XVI. INSTITUTION OF HEIRS A. In General Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (n) The will of the testator is the supreme law which succession is governed, thus, the beneficiaries under the will must be designated with clearness so that there can be no doubt as to who are intended by the testator. Since the institution of heirs and the designation of legatees and devisees spring exclusively from the will of the testator, only the portion of the inheritance that is subject to the disposal of the testator would be affected by such institution or designation. It cannot affect the portion known as the legitime.

Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of

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The article pertains to the principle of freedom of distribution by will. The extent of his freedom of disposition depends upon the existence, knid, and number of compulsory heirs. When there are CH the law limits this freedom to such extent that legitime is not impaired. Besides the civil law, special laws also restrict this freedom such as the Public Land Act which vests upon the heirs of the applicant or grantee the ownership of land in such case that the latter dies. Thus, he does not have free disposal of the subject land. The body of the deceased testator will not pass under his will or become part of the estate because it is not a property. But the testator may be allowed to such extent for scientific or educational purposes. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. (763a) Art. 843. The testator shall designate the heir by his name and surname, and when there are two persons

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Wills & Succession/ Atty Uribe having the same names, he shall indicate some circumstance by which the instituted heir may be known. Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. (772) Art. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir. (773a) Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n)

Art. 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a) Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. (671a) T: the third person here does not make any disposition, but simply carries out details in the execution of the testamentary disposition made by the testator himself in the will. B: for this article to take effect the testator must determine the ff: 5. 6.

the property or amount of money given and; the class or cause to be benefited

and the ff. may be delegated: 3. 4.

designation of persons, institutions, establishments within the class or cause; the manner of distribution.

or

Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. (765)

T: The first part of this article pertains to patent or extrinsic ambiguity which appears upon the face of the instrument such as when the testator gives a devise or legacy to “SOME of the six children of his cousin Juan”

Art. 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. (770a)

The second part pertains to latent or intrinsic ambiguity which cannot be seen from a mere perusal or reading of the will but appears only upon consideration of extrinsic circumstances, such as giving legacy to “my cousin Pedro”, when I fact he has two cousins named Pedro. Thus. It occurs when:

Art. 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (769a)

3. 4.

two or more persons or things answer the name or description; misdescription of the beneficiary or the gift

Extrinsic evidence is admissible to show the situation of the testator and all the relevant facts and circumstances surrounding him at the time of making the will, for the purpose of explaining or resolving patent ambiguity.

Art. 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively. (771)

B: method of resolving ambiguity, whether latent or patent is any evidence admissible and relevant excluding the oral declarations of testator as to his intention.

Art. 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (767a)

Ratio for the exclusion: B: can a dead man refute a tale?

Austria vs. Reyes

T: the testator whose lips have been sealed by death can no longer deny or affirm the truth of what witnesses may say he declared, would create confusion and give rise to false claims.

On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special Proceedings 2457) a petition for probate, ante mortem, of her last will and testament. The probate was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro

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Wills & Succession/ Atty Uribe Austria Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia. This opposition was, however, dismissed and the probate of the will allowed after due hearing. The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz CruzSalonga, all of whom had been assumed and declared by Basilia as her own legally adopted children. Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance with law, in effect rendering these respondents mere strangers to the decedent and without any right to succeed as heirs. In the meantime, the contending sides debated the matter of authenticity or lack of it of the several adoption papers produced and presented by the respondents. On motion of the petitioners Ruben Austria, et al., these documents were referred to the National Bureau of Investigation for examination and advice. N.B.I. report seems to bear out the genuineness of the documents, but the petitioners, evidently dissatisfied with the results, managed to obtain a preliminary opinion from a Constabulary questioned-document examiner whose views undermine the authenticity of the said documents. The petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption papers to the Philippine Constabulary for further study. The petitioners likewise located former personnel of the court which appeared to have granted the questioned adoption, and obtained written depositions from two of them denying any knowledge of the pertinent adoption proceedings. The complaint in intervention filed in the lower court assails the legality of the tie which the respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The lower court had, however, assumed, by its orders in question, that the validity or invalidity of the adoption is not material nor decisive on the efficacy of the institution of heirs; for, even if the adoption in question were spurious, the respondents Perfecto Cruz, et al., will nevertheless succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling apparently finds support in article 842 of the Civil Code which reads: "One who has no compulsory heirs may dispose of by will all his estate or any part of it in favor of any person having capacity to succeed. "One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs." The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the decedent's will. They have thus raised squarely the issue of whether or not such institution of heirs would retain efficacy in the event there exists proof that the adoption of the same heirs by the decedent is false. The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:

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"The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause." The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia was deceived into believing that she was legally bound to bequeath one-half of her entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had the deceased known the adoption to be spurious, she would not have instituted the respondents at all — the basis of the institution being solely her belief that they were compulsory heirs. Proof therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening of the estate wide to intestacy. Did the lower court then abuse its discretion or act in violation of the rights of the parties in barring the petitioners nephews and niece from registering their claim even to properties adjudicated by the decedent in her will? Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause. The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the institution of the respondents was the testatrix's belief that under the law she could not do otherwise. If this were indeed what prompted the testatrix in instituting the respondents, she did not make it known in her will. Surely if she was aware that succession to the legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One fact prevails, however, and it is that the decedent's will does not state in a specific or unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications. And even if we should accept the petitioners' theory that the decedent instituted the respondents perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false assumption that her adoption of these respondents was valid, still such institution must stand. Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the testator may have written in his will for the institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will, that the testator clearly would not have made the institution if he had known the cause for it to be false. Now, would the late Basilia have caused the revocation of the institution of heirs if she had known that she was mistaken in treating these heirs as her legally adopted children? Or would she have instituted them nonetheless?

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Wills & Succession/ Atty Uribe The decedent's will, which alone should provide the answer, is mute on this point or at best is vague and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed from the language of the law on succession and were used, respectively, to describe the class of heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the decedent would have willed her estate other than the way she did if she had known that she was not bound by law to make allowance for legitimes. Her disposition of the free portion of her estate (libre disposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and the children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the respondents more than what she thought the law enjoined her to give to them. Compare this with the relatively small devise of land which the decedent had left for her blood relatives, including the petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al, from the inheritance, then the petitioners and the other nephews and nieces would succeed to the bulk of the estate by intestacy — a result which would subvert the clear wishes of the decedent. Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code: "The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy." 1 Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate, 2 as was done in this case. Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect. 3 A probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence. In this situation, it becomes our duty to give full expression to her will. 4 At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought for that purpose, and cannot be the subject of a collateral attack. 5

Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate. The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (n) Art. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts

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together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n) Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. (n) Art. 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a) B. Kinds of Institution Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a) Art. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a) Viuda de Kilayko vs. Tengco These consolidated cases seek to annul the orders 1 dated September 20, 1978, January 7, 1977 and January 31, 1977 of the then Court of First Instance of Negros Occidental, Branch IV, respectively, cancelling the notice of lis pendens filed by Celsa L. Vda. de Kilayko, et al. with the Register of Deeds of Negros Occidental, denying the motion for reconsideration of the order dated September 20, 1976 filed by Celsa L. Vda. de Kilay ko, et al., and holding in abeyance the resolution of defendants' motion to dismiss. On January 28, 1968, Maria Lizares y Alunan died without any issue leaving said "testamento" in the possession and custody of her niece, Eustaquia Lizares. 3 On February 6, 1968, Eustaquia filed a petition for the settlement of the testate estate of Maria Lizares y Alunan, before the Court of First Instance of Negros Occidental, Branch IV, docketed as Special Proceedings No. 8452. 4 On July 10, 1968, Eustaquia filed a project of partition 6 which was granted by the probate court in an order dated January 8, 1971. Simultaneously, said court declared the heirs, devisees, legatees and usufructuaries mentioned in the project of partition as the only heirs, devisees, legatees and usufructuaries of the estate; adjudicated to them the properties respectively assigned to each and every one of them, and ordered the Register of Deeds of Negros Occidental and Bacolod City to effect the corresponding transfer of the real properties to said heirs as well as the transfer of shares, stocks, and dividends in different corporations, companies and partnerships in the name of Maria Lizares to the heirs and legatees, and the closure of the testate proceedings of Maria Lizares. 7 A year later or on November 23, 1973, Eustaquia Lizares died single without any descendant. 11 In due time, Rodolfo

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Wills & Succession/ Atty Uribe Lizares and Amelo Lizares were appointed joint administrators of Eustaquia's intestate estate. On the strength of the testamentary provisions contained in paragraphs 10 and 11 of the will of Maria Lizares, which were allegedly in the nature of a simple substitution, Celsa Vda. de Kilayko, Encarnacion Vda. de Panlilio, and Remedios Vda. de Guinto (hereinafter collectively referred to as Celsa L. Vda. de Kilayko, et al.) filed a motion in Special Proceedings No. 8452 to reopen once again the testate estate proceedings of Maria Lizares. They prayed among others that a substitute administrator be appointed; that the order dated January 8, 1971 be reconsidered and amended by declaring them as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of Hda. Matabang, both of which form an aggregate area of 33 hectares; that the Register of Deeds of Negros Occidental, after such amendment, be ordered to register at the back of their respective certificates of title, the order of probate and a "declaration" that movants are the heirs of said properties, and correspondingly issue new certificates of title in their names. 12 Two (2) sets of intestate heirs of the deceased Eustaquia Lizares namely: Socorro L. Vda. de Escario, Rodolfo Lizares, Mario Lizares, Lucrecia Gustilo, and Aurora Lizares Wagner opposed the aforesaid motion. They alleged that the court had no more jurisdiction to reopen the testate estate proceedings of Maria Lizares as the order of closure had long become final and that the testamentary provisions sought to be enforced are null and void. 13 On April 13, 1977, the joint administrators filed before this Court a petition for certiorari, prohibition and/or mandamus with prayer for a writ of preliminary injunction. It was docketed as G.R. No. L-45965. Petitioners contend that the lower court had no jurisdiction over Civil Case No. 11639 as it involves the interpretation of the will of Maria Lizares, its implementation and/or the adjudication of her properties. They assert that the matter had been settled in Special Proceedings No. 8452 which had become final and unappealable long before the complaint in Civil Case No. 11639 was filed, and therefore, the cause of action in the latter case was barred by the principle of res judicata. They aver that the claim of Celsa, Encarnacion and Remedios, sisters of Maria Lizares, over the properties left by their niece Eustaquia and which the latter had inherited by will from Maria Lizares, was groundless because paragraphs 10 and 11 of Maria's will on which Celsa L. Vda. de Kilayko, et al. base their claim, conceived of a fideicommissary substitution of heirs. Petitioners contend that said provisions of the will are not valid because under Article 863 of the Civil Code, they constitute an invalid fideicommissary substitution of heirs. The petition in G.R. No. L-45965 is impressed with merit. In testate succession, there can be no valid partition among the heirs until after the will has been probated. 30 The law enjoins the probate of a will and the public requires it, because unless a will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory. 31 The authentication of a will decides no other question than such as touch upon the capacity of the testator and the compliance with those requirements or solemnities which the law prescribes for the validity of a will. 32 The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to determine the proportion or parts

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to which each distributee is entitled . . . 37 A project of partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. It is the court that makes that distribution of the estate and determines the persons entitled thereto. 38 In the instant case, the records will show that in the settlement of the testate estate of Maria Lizares, the executrix, Eustaquia Lizares submitted on January 8, 1971, a project of partition in which the parcels of land, subject matters of the complaint for reconveyance, were included as property of the estate and assigned exclusively to Eustaquia as a devisee of Maria Lizares. In accordance with said project of partition which was approved by the probate court, Encarnacion Lizares Vda. de Panlilio, Remedios Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza and Eustaquia Lizares executed an Agreement of Partition and Subdivision on November 28, 1972, whereby they agreed to terminate their co-ownership over Lots Nos. 550, 514, 553, 1287-C of SWO7446 and 552 covered by Transfer Certificates of Title Nos. T65004, T-65005, T-65006, T-65007 and T-65008. These facts taken altogether show that the Lizares sisters recognized the decree of partition sanctioned by the probate court and in fact reaped the fruits thereof. Hence, they are now precluded from attacking the validity of the partition or any part of it in the guise of a complaint for reconveyance. A party cannot, in law and in good conscience be allowed to reap the fruits of a partition, agreement or judgment and repudiate what does not suit him. 39 Thus, where a piece of land has been included in a partition and there is no allegation that the inclusion was effected through improper means or without petitioner's knowledge, the partition barred any further litigation on said title and operated to bring the property under the control and jurisdiction of the court for its proper disposition according to the tenor of the partition. 40 The question of private respondents' title over the lots in question has been concluded by the partition and became a closed matter. A final decree of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees. If the decree is erroneous, it should be corrected by opportune appeal, for once it becomes final, its binding effect is like any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud. Where the court has validly issued a decree of distribution and the same has become final, the validity or invalidity of the project of partition becomes irrelevant. 41 It is a fundamental concept in the origin of every jural system, a principle of public policy, that at the risk of occasional errors, judgments of courts should become final at some definite time fixed by law, interest rei publicae ut finis sit litum. "The very object of which the courts were constituted was to put an end to controversies." 42 The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is the opening of the same by proper motion within the reglementary period, instead of an independent action, the effect of which if successful, would be for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of. 43

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Wills & Succession/ Atty Uribe The fundamental principle upon which the doctrine of res judicata rests is that parties ought not to be permitted to litigate the same issue more than once, that, when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for such trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties and those in privity with then in law or estate. 44 Granting that res judicata has not barred the institution of Civil Case No. 11639, the contention of Celsa L. Vda. de Kilay ko et al. that they are conditional substitute heirs of Eustaquia in the testate estate of Maria Lizares 46 is not meritorious. While the allegation of the joint administrators that paragraphs 10 and 11 of Maria Lizares' last will and testament conceives of a fideicommissary substitution under Article 863 of the Civil Code is also baseless as said paragraphs do not impose upon Eustaquia a clear obligation to preserve the estate in favor of Celsa L. Vda. de Kilay ko, et al., neither may said paragraphs be considered as providing for a vulgar or simple substitution.

Art. 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter's ascendants or descendants.

It should be remembered that when a testator merely names an heir and provides that if such heir should die a second heir also designated shall succeed, there is no fideicommissary substitution. The substitution should then be construed as a vulgar or simple substitution under Art. 859 of the Civil Code but it shall be effective only if the first heir dies before the testator. 47 In this case, the instituted heir, Eustaquia, survived the testatrix, Maria Lizares. Hence, there can be no substitution of heirs for, upon Maria Lizares death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters of Maria Lizares could only inherit the estate of Eustaquia by operation of the law of intestacy

The condition not to do an impossible thing shall be considered as not having been agreed upon. (1116a)

With respect to the cancellation of the notice of lis pendens on the properties involved, there is no merit in the contention of Celsa L. Vda. de Kilay ko, et al., that the lower court acted contrary to law and/or gravely abused its discretion in cancelling the notice of lis pendens. The cancellation of such a precautionary notice, being a mere incident in an action, may be ordered by the court having jurisdiction over it at any given time. 48 Under Sec. 24, Rule 14 of the Rules of Court, a notice of lis pendens may be cancelled "after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded" 49 In this case, the lower court ordered the cancellation of said notice on the principal reason that the administrators of the properties involved are subject to the supervision of the court and the said properties are under custodia legis. Therefore, such notice was not necessary to protect the rights of Celsa L. Vda. de Kilay ko, et al. More so in this case where it turned out that their claim to the properties left by Eustaquia is without any legal basis.

Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. (793a) Art. 1183. Impossible conditions, those contrary to good customs or public policy and those prohibited by law shall annul the obligation which depends upon them. If the obligation is divisible, that part thereof which is not affected by the impossible or unlawful condition shall be valid.

Art. 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void. (794a) Art. 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator's death. This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (795a) Art. 877. If the condition is casual or mixed, it shall be sufficient if it happens or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise. Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be deemed as complied with. If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. (796) Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion.

Art. 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed. (813a)

In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report.

Art. 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide. (792a)

If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered. (758a) Art. 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not

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Wills & Succession/ Atty Uribe giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests. (800a) Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article. (801a) Art. 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of the administration and the rights and obligations of the administrator shall be governed by the Rules of Court. (804a) Art. 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section. (791a)

That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. (797a) Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. (798a) XVII. SUBSTITUTION OF HEIRS Art. 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. (n) Art. 858. Substitution of heirs may be:

Institution with a Term (1) Simple or common; Art. 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. (805)

Art. 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. (799a) Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article. (801a) Modal Institutions Art. 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention.

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(2) Brief or compendious; (3) Reciprocal; or (4) Fideicommissary. (n) Art. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided. (774) Art. 860. Two or more persons may be substituted for one; and one person for two or more heirs. (778) Art. 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution. (779a) Art. 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless and testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted. (780)

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Wills & Succession/ Atty Uribe Art. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (781a) Art. 864. A fideicommissary substitution can never burden the legitime. (782a) Art. 865. Every fideicommissary substitution must be expressly made in order that it may be valid. The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise. (783) Art. 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he should die before the fiduciary. The right of the second heir shall pass to his heirs. (784) Art. 867. The following shall not take effect: (1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir; (2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863; (3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension; (4) Those which leave to a person the whole part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. (785a) Art. 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written. (786) Art. 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply. (787a)

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Palacios vs. Ramirez The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski. The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for substitutions. Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate. On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the deceased is to be divided into two parts. One part shall go to the widow "en pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with the widow's usufruct and the remaining two-third (2/3) with a usufruct in favor of Wanda. Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because of the first heirs (Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary substitutions are also invalid because the first heirs are not related to the second heirs or substitutes within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property in the Philippines in favor of Wanda de Wrobleski, who is an alien, violates Section 5, Article XIII of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in the Santa Cruz (Escolta) Building between the widow Marcelle, and the appellants, violates the testator's express will to give this property to them. Nonetheless, the lower court approved the project of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to this Court. The widow's legitime. It is the one-third usufruct over the free portion which the appellants question and justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle because the testament provides for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio" as her legitime and which is more than what she is given under the will is not entitled to have any additional share in the estate. To give Marcelle more than her legitime will run counter to the testator's intention for as stated above his dispositions even impaired her legitime and tended to favor Wanda. The substitutions. It may be useful to recall that "Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code.) And that there are several kinds of substitutions, namely: simple or common, brief or compendious, reciprocal, and fideicommissary. (Art. 858, Civil Code.) According to

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Wills & Succession/ Atty Uribe Tolentino, "Although the Code enumerates four classes, there are really only two principal classes of substitutions: the simple and the fideicommissary. The others are merely variations of these two." (III Civil Code, p. 185 [1973]).

not go beyond one degree 'from the heir originally instituted.' The Code thus clearly indicates that the second heir must be related to and be one generation from the first heir.

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

"From this, it follows that the fideicommissary can only be either a child or a parent of the first heir. These are the only relatives who are one generation or degree from the fiduciary." (Op. cit., pp. 193-194.).

"ART. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. "A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided."

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator contradicts the establishment of a fideicommissary substitution when he permits the properties subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked owners." (Brief, p. 26). The usufruct of Wanda.

The fideicommissary substitution is described in the Civil Code as follows: "ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further that the fiduciary or first heir and the second heir are living at time of the death of the testator." It will be noted that the testator provided for a vulgar substitution in respect of the legacies of Roberto and Jorge Ramirez, the appellants, The appellants also question the "sustitucion vulgar y fideicomisaria" in connection with Wanda's usufruct over twothirds of the estate in favor of Juan Pablo Jankowski and Horace V. Ramirez. They allege that the substitution in its vulgar aspect is void because Wanda survived the testator or stated differently because she did not predecease the testator. But dying before the testator is not the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid. As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it is void for the following reasons: (a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided such substitution does not go beyond one degree from the heir originally instituted." "Scaevola, Maura, and Traviesas construe 'degree' as designation, substitution, or transmission. The Supreme Court of Spain has decidedly adopted this construction. From this point of view, there can be only one transmission or substitution, and the substitute need not be related to the first heir. Manresa, Morell, and Sanchez Roman, however, construe the word 'degree' as generation, and the present Code has obviously followed this interpretation, by providing that the substitution shall

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The court a quo upheld the validity of the usufruct given to Wanda on the ground that the Constitution covers not only succession by operation of law but also testamentary succession. We are of the opinion that the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land. This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the Constitution. Crisologo vs. Singson Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against Manuel Singson in connection with a residential lot located at Plaridel St., Vigan, Ilocos Sur, with an area of approximately 193 square meters, and the improvements existing thereon, covered by Tax No. 10765-C. Their complaint alleged that Singson owned one half proindiviso of said property and that Consolacion Florentino owned the other half by virtue of the provisions of the duly probated last will of Doña Leona Singson, the original owner, and the project of partition submitted to, and approved by the Court of First Instance of Ilocos Sur in Special Proceeding No. 453; that plaintiffs had made demands for the partition of said property, but defendant refused to accede thereto, thus compelling them to bring action. Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of one half proindiviso of the property in question, and that, therefore, she was not entitled to demand partition thereof. It is admitted that Doña Leona Singson, who died single on January 13, 1948, was the owner of the property in question at the time of her death. On July 31, 1951 she executed her last will which was admitted to probate in Special Proceeding No. 453 of the lower court whose decision was affirmed by the Court of Appeals in G. R. No. 3605-R. At the time of the execution of the will her nearest living relatives were her brothers Evaristo, Manuel and Dionisio Singson, and her

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Wills & Succession/ Atty Uribe nieces Rosario, Emilia and Trinidad, and her grandniece Consolacion, all surnamed Florentino. The issue to be decided is whether the testamentary disposition above-quoted provided for what is called sustitución vulgar or for a sustitución fideicomisaria. This issue is, we believe, controlled by the pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the New Civil Code, in view of the fact that the testatrix died on January 13, 1948. They are the following: "ART. 774. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish or should be unable to accept the inheritance. "A simple substitution, without a statement of the cases to which it is to apply, shall include the three mentioned in the next preceding paragraph, unless the testator has otherwise provided." "ART. 781. Fidei-comissary substitutions by virtue of which the heir is charged to preserve and transmit to a third person the whole or part of the inheritance shall be valid and effective, provided they do not go beyond the second degree, or that they are made in favor of persons living at the time of the death of the testator." "ART. 785. The following shall be inoperative: 1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing upon the fiduciary the absolute obligation of delivering the property to a second heir." * * *. In accordance with the first legal provision quoted above, the testator may not only designate the heirs who will succeed him upon his death, but also provide for substitutes in the event that said heirs do not accept or are in no position to accept the inheritance or legacies, or die ahead of him. The testator may also bequeath his properties to a particular person with the obligation, on the part of the latter, to deliver the same to another person, totally or partially, upon the occurrence of a particular event. It is clear that the particular testamentary clause under consideration provides for a substitution of the heir named therein in this manner: that upon the death of Consolacion Florentino-whether this occurs before or after that of the testatrix-the property bequeathed to her shall be delivered ("se dará") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced heirs, should anyone of them the ahead of Consolacion Florentino. If this clause created what is known as sustitución vulgar, the necessary result would be that Consolacion Florentino, upon the death of the testatrix, became the owner of one undivided half of the property, but if it provided for a sustitución fideicomisaria, she would have acquired nothing more than usufructuary rights over the same half. In the former case, she would undoubtedly be entitled to partition, but not in the latter. As Manresa says, if the fiduciary did not acquire full ownership of the property bequeathed, by will, but mere usufructuary rights thereon until the time came for him to deliver said property to the fideicomisario, it is obvious that the nude ownership over the property, upon the death of the testatrix, passed to and was acquired by another person, and that person cannot be other than the fideicomisarrio. (6 Manreza, p. 145)

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It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed upon the first heir to preserve and transmit to another the whole or part of the estate bequeathed to him, upon his death or upon the happening of a particular event. For this reason Art. 785 of the old Civil Code provides that a fideicommissary substitution shall have no effect unless it is made expressly ("de una manera expresa") either by giving it such name, or by imposing upon the first heir the absolute obligation ("obligación terminante") to deliver the inheritance to a substitute or second heir. A careful perusal of the testamentary clause under consideration shows that the substitution of heirs provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As already stated, it merely provides that upon appellee's death-whether this happens before or after that of the testatrix-her share shall belong to the brothers of the testatrix. In the light of the foregoing, we believe, and so hold, that the last will of the deceased Dña. Leona Singson established a mere sustitución vulgar, the substitution of Consolacion Florentino by the brothers of the testatrix: to be effective or to take place upon the death of the former, whether it happens before or after that of the testatrix. In view of the foregoing, the appealed judgment is affirmed, with costs. Art. 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void. (n)

XVII. LEGACIES AND DEVISEES Art. 924. All things and rights which are within the commerce of man be bequeathed or devised. (865a) Art. 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and devisees. The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them. (858a) Art. 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be bound. Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit. (859) Art. 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a thing devised or bequeathed, even though only one of them should have been negligent. (n)

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Wills & Succession/ Atty Uribe Art. 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind. (860) Art. 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its entirety. (864a) Art. 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. (862a) Art. 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing. (861a) Art. 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have some interest therein. If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent. (866a) Art. 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy or devise shall be without effect, even though it may have subsequently alienated by him. If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. (878a) Art. 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears. The same rule applies when the thing is pledged or mortgaged after the execution of the will. Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee. (867a) Art. 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee

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shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator. In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one. In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death. (870a) Art. 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death. The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. (871) Art. 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the will, but not subsequent ones. (872) Art. 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares. In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise. (837a) Art. 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears. The foregoing provisions are without prejudice to the fulfillment of natural obligations. (n) Art. 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged. If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the respective heirs. Once made, the choice is irrevocable. In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the same kind shall be observed, save such modifications as may appear from the intention expressed by the testator. (874a)

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Wills & Succession/ Atty Uribe Art. 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate. A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate. The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a) Art. 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer. (876a) Art. 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall pass to his heirs; but a choice once made shall be irrevocable. (877a)

upon the death of the testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the latter's death. From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. (882a) Art. 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered. (884a) Art. 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: (1) Remuneratory legacies or devises;

Art. 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently. A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided. If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate. If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate. (879a)

(2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which forms a part of the estate; (6) All others pro rata. (887a) Art. 951. The thing bequeathed shall be delivered with all its accessories and accessories and in the condition in which it may be upon the death of the testator. (883a)

Art. 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced. (880a)

Art. 952. The heir, charged with a legacy or devise, or the executor or administrator of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value.

Art. 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished. (868a)

The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir or the estate, but without prejudice to the legitime. (886a)

Art. 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the testator, and transmits it to his heirs. (881a)

Art. 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor or administrator of the estate should he be authorized by the court to deliver it. (885a)

Art. 948. If the legacy or device is of a specific and determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof

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Legacies of money must be paid in cash, even though the heir or the estate may not have any.

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Wills & Succession/ Atty Uribe Art. 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous. Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise. (889a) Art. 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee must either accept or renounce both. Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both. (890a) Art. 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion. (888a) Art. 957. The legacy or devise shall be without effect: (1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had; (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase; (3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of Article 928. (869a) Art. 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise. (n)

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Art. 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of those nearest in degree. (751)

Fernandez vs. Dimagiba It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent, submitted to the Court of First Instance a petition for the probate of the purported will of the late Benedicta de los Reyes, executed on October 22, 1930, and annexed to the petition. The will instituted the petitioner as the sole heir of the estate of the deceased. The petition was set for hearing, and in due time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes, and one month later, Mariano, Cesar, Leonor and Paciencia, all surnamed Reyes, all claiming to be heirs intestate of the decedent, filed oppositions to the probate asked. Grounds advanced for the opposition were forgery, vices of consent of the testatrix, estoppel by laches of the proponent, and revocation of the will by two deeds of conveyance of the major portion of the estate made by the testatrix in favor of the proponent in 1943 and 1944, but which conveyances were finally set aside by this Supreme Court in a decision promulgated on August 3, 1954, in cases G.R. Nos. L-5618 and L-5620 (unpublished). Oppositors Fernandez and Reyes petitioned for reconsideration and/or new trial, insisting that the issues of estoppel and revocation be considered and resolved; whereupon, on July 27, 1959, the Court overruled the claim that proponent was in estoppel to ask for the probate of the will, but "reserving unto the parties the right to raise the issue of implied revocation at the opportune time." On February 27, 1962, after receiving further evidence on the issue whether the execution by the testatrix of deeds of sale of the larger portion of her estate in favor of the testamentary heir, made in 1943 and 1944, subsequent to the execution of her 1930 testament, had revoked the latter under Article 957(2) of the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the trial Court resolved against the oppositors and held the will of the late Benedicta de los Reyes "unaffected and unrevoked by the deeds of sale." Whereupon, the oppositors elevated the case to the Court of Appeals. In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not the decree of the Court of First Instance allowing the will to probate had become final for lack of appeal; (b) whether or not the order of the Court of origin dated July 27, 1959, overruling the estoppel invoked by oppositors-appellants had likewise become final; and (c) whether or not the 1930 will of Benedicta de los Reyes had been impliedly revoked by her execution of deeds of conveyance in favor of the proponent on March 26, 1943 and April 3, 1944. There being no controversy that the probate decree of the Court below was not appealed on time, the same had become final and conclusive. Hence, the appellate courts may no longer revoke said decree nor review the evidence upon which it is made to rest. Thus, the appeal belatedly lodged against the decree was correctly dismissed. The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of revocation

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Wills & Succession/ Atty Uribe becomes superfluous: in law, there is no such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely implied from subsequent acts of the- testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise the properties concerned. As such, the revocation would not affect the will itself, but merely the particular devise or legacy. Only the total and absolute revocation can preclude probate of the revoked testament (Trillana vs. Crisostomo, supra). As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the presentation and probate of a will are requirements of public policy, being primarily designed to protect the testator's expressed wishes, which are entitled to respect as a consequence of the decedent's ownership and right of disposition within legal limits. Evidence of it is the duty imposed on a custodian of a will to deliver the same to the Court, and the fine and imprisonment prescribed for its violation (Revised Rule 75) It would be non-sequitur to allow public policy to be evaded on the pretext of estoppel. Whether or not the order overruling the allegation of estoppel is still appealable or not, the defense is patently unmeritorious and the Court of Appeals correctly so ruled. The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of 1 As observed by the Court of Appeals, the existence of any such change or departure from the original intent of the testatrix, expressed in her 1930 testament, is rendered doubtful by the circumstance that the subsequent alienations in 1943 and 1944 were executed in favor of the legatee herself, appellee Dimagiba. In fact, as found by the Court of Appeals in its decision annulling these conveyances (affirmed in that point by this Supreme Court in Reyes vs. Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no consideration whatever was paid by respondent Dimagiba" on account of the transfers, thereby rendering it even more doubtful whether in conveying the property to her legatee, the testatrix merely intended to comply in advance with what she had ordained in her testament, rather than an alteration or departure therefrom. 1 Revocation being an exception, we believe, with the Courts below, that in the circumstances of the particular case, Article 957 of the Civil Code of the Philippines does not apply to the case at bar.

the same thing could be said if the alienation (posterior to the will) were avoided on account of physical or mental duress. Yet, an alienation through undue influence in no way differs from one made through violence or intimidation. In either case, the transferor is not expressing his real intent, 3 and it can not held that there was in fact an alienation that could produce a revocation of the anterior bequest. Belen vs. BPI Benigno Diaz executed a codicil on September 29, 1944 On November 7, 1944, Benigno Diaz died; and the aforesaid codicil, together with the will, was admitted to probate in Special Proceedings No. 894 of the same Court of First Instance of Manila. The proceedings for the administration of the estate of Benigno Diaz were closed in 1950 and the estate was thereafter put under the administration of the appellee Bank of the Philippine Islands, as trustee for the benefit of the legatees. Filomena Diaz died on February 8, 1954, leaving two legitimate children, Milagros Belen de Olaguera, married, with seven (7) legitimate children, and Onesima D. Belen, single. On March 19, 1958, Onesima D. Belen filed a petition in Special Proceedings No. 9226, contending that the amount that would have appertained to Filomena Diaz under the codicil should now be divided (equally) only between herself and Milagros Belen de Olaguera, as the surviving children of the said deceased, to the exclusion, in other words, of the seven (7) legitimate children of Milagros Belen de Olaguera. The court, in its order of May 23, 1958, denied, as we initially pointed out, Onesima's petition. From this order Onesima D. Belen has appealed to this Court, insisting that (1) the Court below was in error in holding that its former resolution of September 16, 1955 had been affirmed by our decision of February 28, 1958 in the case of Arguelles vs. Belen de Olaguera, G. R. No. L-10164 Feb. 28, 1958; and (2) that the term "sus descendientes legitimos," as used in the codicil, should be interpreted to mean descendants nearest in degree to the original legatee Filomena Diaz. In the present case, they are her two daughters (Milagros and Onesima Belen), thereby excluding the seven grandchildren of said legatee. As to the actual meaning of the provision —

Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily result in the revocation of the legacies, if we bear in mind that the findings made in the decision decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also that If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not expressing her own free will and intent in making the conveyances. Hence, it can not be concluded, either, that such conveyances established a decision on her part to abandon the original legacy. True it is that the legal provision quoted prescribes that the recovery of the alienated property "even if it be by reason of the nullity of the contract" does not revive the legacy; but as pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not be taken in an absolute sense. 2 Certainly, it could not be maintained, for example, that if a testator's subsequent alienation were voided because the testator was mentally deranged at the time, the revocatory effect ordained by the article should still ensue. And

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"El resto se distribuira a las siguientes personas que aun viven, o a sus descendientes legitimos", it is undeniable that by this clause the testator ordained a simple substitution (sustitucion vulgar) with a plurality of substitutes for each legatee. This form of substitution is authorized by the first part of Article 860 of the Civil Code (Art. 778 of the Code of 1889): "Two or more persons may be substituted for one; and one person for two or more heirs." The issue is now squarely before us: do the words "sus descendientes legitimos" refer conjointly to all living descendants (children and grandchildren) of the legatee, as a class; or do they refer to the descendants nearest in degree? Appellant Onesima Belen contends that the phrase should be taken to mean the relatives nearest in degree to Filomena

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Wills & Succession/ Atty Uribe Diaz; and that the legacy should be therefore divided equally between her and her sister Milagros Belen de Olaguera, to the exclusion of the latter's sons and daughters, grandchildren of the original legatee, Filomena Diaz. As authority in support of her thesis, appellant invokes Article 959 of the Civil Code of the Philippines (reproducing ne varietur Article 751 of the Code of 1889): "A distribution made in general terms in favor of the testator's relatives shall be understood as made in favor of those nearest in degree." The argument fails to note that this article is specifically limited in its application to the case where the beneficiaries are relatives of the testator, not those of the legatee. In such an event, the law assumes that the testator intended to refer to the rules of intestacy, in order to benefit the relatives closest to him, because, as Manresa observes, — But the ratio legis (that among a testator's relatives the closest are dearest) obviously does not apply where the beneficiaries are relatives of another person (the legatee) and not of the testator. There is no logical reason in this case to presume that the testator intended to refer to the rules of intestacy, for he precisely made a testament and provided substitutes for each legatee; nor can it be said that his affections would prefer the nearest relatives of the legatee to those more distant, since he envisages all of them in a group, and only as mere substitutes for a preferred beneficiary. Should Article 959 (old Art. 751) be applied by analogy? There are various reasons against this. The most important one is that under this article, as recognized by the principal commentators on the Code of 1889, the nearest exclude all the farther relatives and the right of representation does not operate.

"The meaning of the word 'descendants', when used in a will or deed to designate a class to take property passing by the will or deed, has been frequently considered and decided by the courts of England and the United States. The established rule in England from an early date was that the word 'descendants' or the word 'issue', unexplained by anything in the context of the instrument, means all persons descending lineally from another, to the remotest degree, and includes persons so descended, even though their parents are living, and that such descendants take per capita and not per stirpes." "The courts of this country are divided on the question of whether in case of a gift or conveyance to 'descendants' or 'issue', children take concurrently with their parents. The socalled English rule has been adhered to in New York, New Jersey, and Tennessee. . . . On the other hand, the courts of Massachusetts, Maine, Rhode Island and South Carolina have held that, in case of a gift or conveyance to descendants or issue, unexplained by anything in the context of the instrument, children do not take concurrently with their parents." We conclude that in the absence of other indications of contrary intent, the proper rule to apply in the instant case is that the testator, by designating a class or group of legatees, intended all members thereof to succeed per capita, in consonance with article 846. So that the original legacy to Filomena Diaz should be equally divided among her surviving children and grandchildren. LEGAL OF INTESTATE SUCCESSION XIX. GENERAL PROVISIONS A. In General

The result would be that by applying to the descendants of Filomena Diaz the "nearest relatives" rule of Article 959, the inheritance would be limited to her children, or anyone of them, excluding the grandchildren altogether. This could hardly be the intention of the testator who, in the selfsame clause 10 of his codicil (ante), speaks of "cuatro hijos de mi difunto hermano Fabian" and of "los hijos de Domingo Legarda," as well as of "descendientes legitimos" of the other legatees, to us indicating clearly that he understood well that hijos and descendientes are not synonymous terms. Observe that, in referring to the substitutes of Filomena Diaz, Nestor Santiago and Isabel M. de Santiago, the testator, does not even use the description "sus hijos o descendientes," but only "descendientes". There is no doubt that, the testator's intention being the cardinal rule of succession in the absence of compulsory (forced) heirs, he could have rendered inoperative all the articles mentioned, if he had so desired. But without any other supporting circumstances, we deem it extremely conjectural to hold that by the simple expression "o a sus descendientes legitimos," the testator Benigno Diaz did intend to circumvent all the legal provisions heretofore quoted. It was incumbent upon appellant to prove such intention on the part of the testator; yet she has not done so. It is interesting to note that even under the Anglo-Saxon doctrine, the courts are divided on the question whether a bequest to "relatives" or "issue," made in general terms, gives rise to a succession per capita or per stirpes. In Wyeth, et al., vs. Crane, 174 N.E. 871, the Supreme Court of Illinois said:

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Art. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a) Art. 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. (913a)

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Wills & Succession/ Atty Uribe Rosales vs. Rosales In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu the question raised is whether the widow whose husband predeceased his mother can inherit from the latter, her mother-in-law. In the course of the intestate proceedings, the trial court issued an Order dated June 16, 1972 declaring the following individuals the legal heirs of the deceased and prescribing their respective share of the estate — Fortunato T. Rosales (husband) 1/4; Magna R. Acebes (daughter), 1/4; Macikequerox Rosales, 1/4; and Antonio Rosales (son), 1/4. This declaration was reiterated by the trial court in its Order dated February 4, 1975. These Orders notwithstanding, Irenea Rosales insisted in getting a share of the estate in her capacity as the surviving spouse of the late Carterio Rosales, son of the deceased, claiming that she is a compulsory heir of her mother-in-law together with her son, Macikequerox Rosales. In sum, the petitioner poses two (2) questions for Our resolution. First — is a widow (surviving spouse) an intestate heir of her mother-in-law? Second — are the Orders of the trial court which excluded the widow from getting a share of the estate in question final as against the said widow? Our answer to the first question is in the negative. Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own right, and those who inherit by the right of representation. 1 Restated, an intestate heir can only inherit either by his own right, as in the order of intestate succession provided for in the Civil Code, 2 or by the right of representation provided for in Article 981 of the same law. There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate heir of her mother-in-law. The entire Code is devoid of any provision which entitles her to inherit from her mother-in-law either by her own right or by the right of representation. The provisions of the Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate with meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate heir. The conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the deceased all the more confirms Our observation. If the legislature intended to make the surviving spouse an intestate heir of the parentin-law, it would have so provided in the Code. The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the surviving spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-in-law. Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in-law By the same token, the provision of Article 999 of the Civil Code aforecited does not support petitioner's claim. A careful examination of the said Article confirms that the estate contemplated therein is the estate of the deceased spouse. The estate which is the subject matter of the intestate estate proceedings in this case is that of the deceased Petra V. Rosales, the mother-in-law of the petitioner. It is from the estate of Petra V. Rosales that Macikequerox Rosales draws a share of the inheritance by the right of representation as provided by Article 981 of the Code. Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of his blood relationship.

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He does not succeed his father, Carterio Rosales (the person represented) who predeceased his grandmother, Petra Rosales, but the latter whom his father would have succeeded. Petitioner cannot assert the same right of representation as she has no filiation by blood with her mother-in-law. Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may, said right of her husband was extinguished by his death that is why it is their son Macikequerox Rosales who succeeded from Petra Rosales by right of representation. He did not succeed from his deceased father, Carterio Rosales. On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon the second question posed by the petitioner. Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse is not an intestate heir of his or her parent-in-law. WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack of merit, with costs against the petitioner. Let this case be remanded to the trial court for further proceedings.

Art. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of Article 987, paragraph 2, concerning division between the paternal and maternal lines. (912a) Delos Santos vs. Dela Cruz From the record of this case, we cull the following salient facts: On May 21, 1965, Gertrudes de los Santos filed a complaint for specific performance against Maximo de la Cruz, alleging, among others, that on August 24, 1963, she and several coheirs, including the defendant, executed an extrajudicial partition agreement (a copy of which was attached to the complaint) over a certain portion of land with an area of around 20,000 sq. m.; that the parties thereto had agreed to adjudicate three (3) lots to the defendant, in addition to his corresponding share, on condition that the latter would undertake the development and subdivision of the estate which was the subject matter of the agreement, all expenses in connection therewith to be defrayed from the proceeds of the sale of the aforementioned three (3) lots; that in spite of demands by the plaintiff, by the other co-heirs, and by the residents of the subdivision, the defendant refused to perform his aforesaid obligation although he had already sold the aforesaid lots. The plaintiff prayed the court to order the defendant to comply with his obligation under the extra-judicial partition agreement and to pay the sum of P1,000.00 as attorney's fees and costs. In his answer, the defendant admitted the due execution of the extrajudicial partition agreement, but set up the affirmative defenses that the plaintiff had no cause of action against him because the said agreement was void with respect to her, for the reason that the plaintiff was not an heir of Pelagia de la Cruz, deceased owner of the property, and was included in the extrajudicial partition agreement by mistake; and that although he had disposed of the three lots adjudicated to him,

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Wills & Succession/ Atty Uribe nevertheless the proceeds of the sale were not sufficient to develop and improve properly the subdivided estate. The answer contained a counterclaim wherein the defendant alleged that the plaintiff had likewise sold her share in the estate for P10,000.00, and that the extrajudicial partition agreement being void insofar as the latter was concerned, he was entitled to one-fourth (1/4) of the proceeds as his share by way of reversion. The defendant prayed that the complaint be dismissed; that the extrajudicial partition agreement be declared void with respect to the plaintiff; and, on his counterclaim, that the plaintiff be ordered to pay him the sum of P2,500.00. In its decision dated November 3, 1966, the court a quo held that the defendant, being a party to the extrajudicial partition agreement, was estopped from raising in issue the right of the plaintiff to inherit from the decedent Pelagia de la Cruz; hence, he must abide by the terms of the agreement. The court ordered the defendant "to perform his obligations to develop Lots 1, 2 and 3 of (LRC) Psd-29561 as described on page 2 of the Extrajudicial Partition Agreement" (meaning, apparently, that the defendant should develop the subdivision because said Lots 1, 2 and 3 were intended to be sold for this purpose), and to pay the plaintiff the sum of P2,000.00 as actual damages, the sum of P500.00 as attorney's fees, and the costs. No disposition was made of defendant's counterclaim. The defendant filed a "Motion for New Trial' but the same was denied. Hence, this appeal. In the stipulation of facts submitted to the court below, the parties admit that the owner of the estate, subject matter of the extrajudicial partition agreement, was Pelagia de la Cruz, who died intestate on October 16, 1962 that defendant-appellant is a nephew of the said decedent; that plaintiff-appellee is a grandniece of Pelagia de la Cruz, her mother, Marciana de la Cruz, being a niece of the said Pelagia de la Cruz; that plaintiffappellee's mother died on September 22, 1935, thus predeceasing Pelagia de la Cruz; and that the purpose of the extrajudicial partition agreement was to divide and distribute the estate among the heirs of Pelagia de la Cruz. The pivotal question is whether, in the premises, plaintiffappellee is an heir of the decedent. We are convinced that she is not. Plaintiff-appellee being a mere grandniece of Pelagia de la Cruz, she could not inherit from the latter by right of representation. "ART. 972. The right of representation takes place in the direct descending line, but never in the ascending. "In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood." Much less could plaintiff-appellee inherit in her own right. "ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place . . ." In the present case, the relatives "nearest in degree" to Pelagia de la Cruz are her nephews and nieces, one of whom is defendant-appellant. Necessarily, plaintiff-appellee, a grandniece, is excluded by law from the inheritance.

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But what is the legal effect of plaintiff-appellee's inclusion and participation in the extrajudicial partition agreement insofar as her right to bring the present action is concerned? They did not confer upon her the right to institute this action. The express purpose of the extrajudicial partition agreement, as admitted by the parties in the stipulation of facts, was to divide the estate among the heirs of Pelagia de la Cruz. Indeed, the said agreement itself states that plaintiff-appellee was participating therein in representation of her deceased mother. It is quite apparent that in executing the partition agreement, the parties thereto were laboring under the erroneous belief that plaintiff-appellee was one of the legal heirs of Pelagia de la Cruz. Plaintiff-appellee not being such an heir, the partition is void with respect to her, pursuant to Article 1105 of the Civil Code, which reads: "ART. 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person." Partition of property affected between a person entitled to inherit from the deceased owner thereof and another person who thought he was an heir, when he was not really and lawfully such, to the prejudice of the rights of the true heir designated by law to succeed the deceased, is null and void (De Torres vs. De Torres, et al., 28 Phil. 49). A fortiori, plaintiffappellee could hardly derive from the agreement the right to have its terms enforced. The extrajudicial partition agreement being void with respect to plaintiff-appellee, she may not be heard to assert estoppel against defendant-appellant. Estoppel cannot be predicated on a void contract (17 Am. Jur. 605), or on acts which are prohibited by law or are against public policy The award of actual damages in favor of plaintiff-appellee cannot be sustained in view of the conclusion we have arrived at above. Furthermore, actual or compensatory damages must be duly proved (Article 2199, Civil Code). Here, no proof of such damages was presented inasmuch as the case was decided on a stipulation of facts and no evidence was adduced before the trial court. Such being the case, defendant-appellant is apparently correct in his contention that the lower court erred in not passing on his counterclaim and, consequently, in not sentencing appellee to turn over to him his corresponding share of said portion received by appellee under the void partition. Remote relatives or unrelated persons who unduly received and took possession of the property of a deceased person without any right, by virtue of a null and void partition, must restore it to the legitimate successor in the inheritance (De Torres vs. De Torres, et al., supra). Of course, if such share has already been disposed of by appellee to a bona fide purchaser, as seems to be indicated in the unproven allegations of the counterclaim, We cannot render judgment awarding any specific amount to defendant-appellant as his proportionate share of the proceeds of such sale for the reason that, as already stated above, this aspect of the counterclaim has not been touched upon in the stipulation of facts nor has it been supported by evidence which appellant should have presented in the lower court but did not. C. Right Representation

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Wills & Succession/ Atty Uribe Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. (942a) Art. 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (n) Art. 972. The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. (925) Art. 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent. (n) Art. 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. (926a) Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (927) Art. 976. A person may represent him whose inheritance he has renounced. (928a) Art. 977. Heirs who repudiate their share may not be represented. (929a)

Art. 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions. (933) Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (843a) Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a) Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of

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the full blood, the former shall inherit per capita, and the latter per stirpes. (948) Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (949) Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. (950) Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood. (915) Teotica vs. Del Val Chan Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in the City of Manila leaving properties worth P600,000.00. She left a will written in Spanish which she executed at her residence in No. 2 Legarda St., Quiapo, Manila. She affixed her signature at the bottom of the will and on the left margin of each and every page thereof in the presence of Pilar Borja, Pilar G. Sanchez, and Modesto Formilleza, who in turn affixed their signatures below the attestation clause and on the left margin of each and every page of the will in the presence of the testatrix and of each other. Said will was acknowledged before Notary Public Niceforo S. Agaton by the testatrix and her witnesses. Among the many legacies and devises made in the will was one of P20,000.00 to Rene A. Teotico, married to the testatrix's niece named Josefina Mortera. To said spouses the testatrix left the usufruct of her interest in the Calvo building, while the naked ownership thereof she left in equal parts to her grandchildren who are the legitimate children of said spouses. The testatrix also instituted Josefina Mortera as her sole and universal heir to all the remainder of her properties not otherwise disposed of in the will. Ana del Val Chan, claiming to be an adopted child of Francisca Mortera, a deceased sister of the testatrix, as well as an acknowledged natural child of Jose Mortera, a deceased brother of the same testatrix, filed on September 2, 1955 an opposition to the probate of the will alleging the following grounds: (1) said will was not executed as required by law; (2) the testatrix was physically and mentally incapable to execute the will at the time of its execution; and (3) the will was executed under duress, threat or influence of fear. After the parties had presented their evidence, the probate court rendered its decision on November 10, 1960 admitting the will to probate but declaring the disposition made in favor of Dr. Rene Teotico void with the statement that the portion to be vacated by the annulment should pass to the testatrix's heirs by way of intestate succession. The motions for reconsideration above adverted to having been denied, both petitioner and oppositor appealed from the decision, the former from that portion which nullifies the legacy in favor of Dr. Rene Teotico and declares the vacated portion as subject of succession in favor of the legal heirs, and the

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Wills & Succession/ Atty Uribe latter from that portion which admits the will to probate. And in this instance both petitioner and oppositor assign several error which, stripped of non-essentials, may be boiled down to the following: (1) Has oppositor Ana del Val Chan the right to intervene in this proceeding?; (2) Has the will in question been duly admitted to probate?; and (3) Did the probate court commit an error in passing on the intrinsic validity of the provisions of the will and in determining who should inherit the portion to be vacated by the nullification of the legacy made in favor of Dr. Rene Teotico? It is a well-settled rule that in order that a person may be allowed to intervene in a probate proceeding he must have an interest in 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 (Ngo The Hua vs. Chung Kiat Hua, et al., L-17091, September 30, 1963); and an interested party has been defined as one who would be benefitted by the estate such as an heir or one who has a claim against the estate like a creditor (Idem.). On the other hand, in Saguinsin vs. Lindayag, et al., L-17750, December 17, 1962, this Court said: "According to Section 2, Rule 80 of the Rules of Court, a petition for letters of administration must be filed by an 'interested person.' An interested party has been defined in this connection as one who would be benefitted by the estate, such as an heir, or one who has a claim against the estate, such as a creditor (Intestate Estate of Julio Magbanwa 40 O.G., 1171). And it is well settled in this jurisdiction that in civil actions as well as special proceedings, the interest required in order that a person may be a party thereto must be material and direct, and not merely indirect or contingent. (Trillana vs. Crisostomo, G. R. No. L-3370, August 22, 1951; Rapinosa vs. Barrion, 70 Phil. 311)." The question now may be asked: Has oppositor any interest in any of the provisions of the will, and, in the negative, would she acquire any right to the estate in the event that the will is denied probate? Under the terms of the will, oppositor has no right to intervene because she has no interest in the estate either as heir, executor, or administrator, nor does she have any claim to any property affected by the will, because it nowhere appears therein any provision designating her as heir, legatee or devisee of any portion of the estate. She has also no interest in the will either as administratrix or executrix. Neither has she any claim against any portion of the estate because she is not a co-owner thereof, and while she previously had an interest in the Calvo building located in Escolta, she had already disposed of it long before the execution of the will. "'Between the natural child and the legitimate relatives of the father or mother who acknowledged it, the Code denies any right of succession. They cannot be called relatives and they have no right to inherit. Of course, there is a blood tie, but the law does not recognize it. In this, article 943 is based upon the reality of the facts and upon the presumptive will of the interested parties; the natural child is disgracefully looked down upon by the legitimate family; the legitimate family is, in turn, hated by the natural child; the latter considers the privileged condition of the former and the resources of which it is thereby deprived; the former, in turn, sees in the natural child nothing but the product of sin, a palpable evidence of a blemish upon the family. Every relation is ordinarily broken in life; the law does no more them recognize this truth, by

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avoiding further grounds of resentment.' (7 Manresa, 3d ed., p. 110.)" The oppositor cannot also derive comfort from the fact that she is an adopted child of Francisca Mortera because under our law the relationship established by adoption is limited solely to the adopter and the adopted does not extend to the relatives of the adopting parents or of the adopted child except only as expressly provided for by law. Hence, no relationship is created between the adopted and the collaterals of the adopting parents. As a consequence, the adopted is an heir of the adopter but not of the relatives of the adopter. "The relationship established by the adoption, however, is limited to the adopting parent, and does not extend to his other relatives, except as expressly provided by law. Thus, the adopted child cannot be considered as a relative of the ascendants and collaterals of the adopting parents, nor of the legitimate children which they may have after the adoption, except that the law imposes certain impediments to marriage by reason of adoption. Neither are the children of the adopted considered as descendants of the adopter. The relationship created is exclusively between, the adopter and the adopted, and does not extend to the relatives of either." (Tolentino, Civil Code of the Philippines, Vol. 1, p. 652) We have examined the evidence on the matter and we are fully in accord with the foregoing observation. Moreover, the mere claim that Josefina Mortera and her husband Rene Teotico had the opportunity to exert pressure on the testatrix simply because she lived in their house several years prior to the execution of the will and that she was old and suffering from hypertension in that she was virtually isolated from her friends for several years prior to her death is insufficient to disprove what the instrumental witnesses had testified that the testatrix freely and voluntarily and with full consciousness of the solemnity of the occasion executed the will under consideration. The exercise of improper pressure and undue influence must be supported by substantial evidence and must be of a kind that would overpower and subjugate the mind of the testatrix as to destroy her free agency and make her express the will of another rather than her own (Coso vs. Deza, 42 Phil., 596). The burden is on the person challenging the will that such influence was exerted at the time of its execution, a matter which here was not done, for the evidence presented not only is sufficient but was disproved by the testimony the instrumental witnesses. The question of whether the probate court could determine the intrinsic validity of the provisions of a will has been decided by this Court in a long line of decisions among which the following may be cited: "Opposition to the intrinsic validity or legality of the provisions of the will cannot be entertained in probate proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law." "To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625.) The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid."

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Wills & Succession/ Atty Uribe Diaz vs. IAC Private respondent filed a Petition dated January 23, 1976 with the Court of First Instance of Cavite in Sp. Proc. Case No. B21, "In The Matter of the Intestate Estate of the late Simona Pamuti Vda. de Santero," praying among other things, that the corresponding letters of Administration be issued in her favor and that she be appointed as special administratrix of the properties of the deceased Simona Pamuti Vda. de Santero. It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de Santero who together with Felisa's mother Juliana were the only legitimate children of the spouses Felipe Pamuti and Petronila Asuncion; 2) that Juliana married Simon Jardin and out of their union were born Felisa Pamuti and another child who died during infancy; 3) that Simona Pamuti Vda. de Santero is the widow of Pascual Santero and the mother of Pablo Santero; 4) that Pablo Santero was the only legitimate son of his parents Pascual Santero and Simona Pamuti Vda. de Santero; 5) that Pascual Santero died in 1970; Pablo Santero in 1973 and Simona Santero in 1976; 6) that Pablo Santero, at the time of his death was survived by his mother Simona Santero and his six minor natural children to wit: four minor children with Anselma Diaz and two minor children with Felixberta Pacursa. Petitioner Anselma Diaz, as guardian of her minor children, filed her "Opposition and Motion to Exclude Felisa PamutiJardin dated March 13, 1980, from further taking part or intervening in the settlement of the intestate estate of Simona Pamuti Vda. de Santero, as well as in the intestate estate of Pascual Santero and Pablo Santero. On May 20, 1980, Judge Ildefonso M. Bleza issued an order excluding Felisa Jardin "from further taking part or intervening in the settlement of the intestate estate of Simona Pamuti Vda. de Santero, as well as in the intestate estates of Pascual Santero and Pablo Santero and declared her to be, not an heir of the deceased Simona Pamuti Vda. de Santero." 3 After her Motion for Reconsideration was denied by the trial court in its order dated November 1, 1980, Felisa P. Jardin filed her appeal to the Intermediate Appellate Court in CA-G.R. No. 69814-R. A decision 4 was rendered by the Intermediate Appellate Court on December 14, 1983 (reversing the decision of the trial court) the dispositive portion of which reads — "WHEREFORE, finding the Order appealed from not consistent with the facts and law applicable, the same is hereby set aside and another one entered sustaining the Orders of December 1 and 9, 1976 declaring the petitioner as the sole heir of Simona Pamuti Vda. de Santero and ordering oppositors-appellees not to interfere in the proceeding for the declaration of heirship in the estate of Simona Pamuti Vda. de Santero." The real issue in this case may be briefly stated as follows — who are the legal heirs of Simona Pamuti Vda. de Santero — her niece Felisa Pamuti Jardin or her grandchildren (the natural children of Pablo Santero)? The dispute at bar refers only to the intestate estate of Simona Pamuti Vda. de Santero and the issue here is whether oppositors-appellees (petitioners herein) as illegitimate children of Pablo Santero could inherit from Simona Pamuti Vda. de Santero, by right of representation of their father Pablo

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Santero who is a legitimate child of Simona Pamuti Vda. de Santero. Now then what is the appropriate law on the matter? Petitioners contend in their pleadings that Art. 990 of the New Civil Code is the applicable law on the case. They contend that said provision of the New Civil Code modifies the rule in Article 941 (Old Civil Code) and recognizes the right of representation (Art. 970) to descendants, whether legitimate or illegitimate and that Art. 941, Spanish Civil Code denied illegitimate children the right to represent their deceased parents and inherit from their deceased grandparents, but that Rule was expressly changed and/or amended by Art. 990 New Civil Code which expressly grants the illegitimate children the right to represent their deceased father (Pablo Santero) in the estate of their grandmother (Simona Pamuti)" 5 Petitioners' contention holds no water. Since the hereditary conflict refers solely to the intestate estate of Simona Pamuti Vda. de Santero, who is the legitimate mother of Pablo Santero, the applicable law is the provision of Art. 992 of the Civil Code which reads as follows: ART. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a). Pablo Santero is a legitimate child, he is not an illegitimate child. On the other hand, the oppositors (petitioners herein) are the illegitimate children of Pablo Santero. Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized by law for the purposes of Art. 992. Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; the family is in turn, hated by the illegitimate child; the latter considers the privileged condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further grounds of resentment. 6 Thus, petitioners herein cannot represent their father Pablo Santero in the succession of the letter to the intestate estate of his legitimate mother Simona Pamuti Vda. de Santero, because of the barrier provided for under Art. 992 of the New Civil Code. "In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate child can not inherit ab intestato from the legitimate children and relatives of his father and mother. The Civil Code of the Philippines apparently adhered to this principle since it reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the illegitimate child

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Wills & Succession/ Atty Uribe to pass to his own descendants, whether legitimate or illegitimate. So that while Art, 992 prevents the illegitimate issue of a legitimate child from representing him in the intestate succession of the grandparent, the illegitimates of an illegitimate child can now do so. This difference being indefensible and unwarranted, in the future revision of the Civil Code we shall have to make a choice and decide either that the illegitimate issue enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or contrariwise maintain said article and modify Articles 995 and 998. The first solution would be more in accord with an enlightened attitude vis-a-vis illegitimate children. (Reflections on the Reform of Hereditary Succession, JOURNAL of the Integrated Bar of the Philippines, First Quater, 1976, Volume 4, Number 1, pp. 40-41). It is therefore clear from Article 992 of the New Civil Code that the phrase "legitimate children and relatives of his father or mother" includes Simona Pamuti Vda. de Santero as the word "relative" includes all the kindred of the person spoken of. 7 The record shows that from the commencement of this case the only parties who claimed to be the legitimate heirs of the late Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin and the six minor natural or illegitimate children of Pablo Santero. Since petitioners herein are barred by the provisions of Article 992, the respondent Intermediate Appellate Court did not commit any error in holding Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti Vda. de Santero. WHEREFORE, this petition is hereby DISMISSED, and the assailed decision is hereby AFFIRMED Debacayo vs. Feraris Melodia Ferraris was a resident of Cebu City until 1937 when she transferred to Intramuros, Manila. She was known to have resided there continuously until 1944. Thereafter, up to the filing on December 22, 1960 of the petition for the summary settlement of her estate, she has not been heard of and her whereabouts are still unknown. More than ten (10) years having elapsed since the last time she was known to be alive, she was declared presumptively dead for purposes of opening her succession and distributing her estate among her heirs. Melodia Ferraris left properties in Cebu City, consisting of one third (1/3) share in the estate of her aunt, Rosa Ferraris, valued at P6,000.00, more or less, and which was adjudicated to her in Special Proceeding No. 13-V of the same court. The deceased Melodia Ferraris left no surviving direct descendant, ascendant, or spouse, but was survived only by collateral relatives, namely, Filomena Abellana de Bacayo, an aunt, and half- sister of decedent's father, Anacleto Ferraris; and by Gaudencia, Catalina, Conchita, and Juanito, all surnamed Ferraris, her nieces and nephew, who were the children of Melodia's only brother of full blood, Arturo Ferraris, who pre-deceased her (the decedent). These two classes of heirs claim to be the nearest intestate heirs and seek to participate in the estate of said Melodia Ferraris. The sole issue to be resolved in this case is: Who should inherit the intestate estate of a deceased person when he or she is survived only by collateral relatives, to wit: an aunt and the children of a brother who predeceased him or her? Otherwise, will the aunt concur with the children of the

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decedent's brother in the inheritance or will the former be excluded by the latter? Against the above ruling, petitioner-appellant contends in the present appeal that she is of the same or equal degree of relationship as the oppositors-appellees, three degrees removed from the decedent; and that under article 975 of the New Civil Code no right or representation could take place when the nieces and nephew of the decedent do not concur with an uncle or aunt, as in the case at bar, but rather the former succeed in their own right. We agree with appellants that as an aunt of the deceased, she is as far distant as the nephews from the decedent (three degrees) since in the collateral line to which both kinds of relatives belong degrees are counted by first ascending to the common ancestor and then descending to the heir (Civil Code, Art. 966). Appellant is likewise right in her contention that nephews and nieces alone do not inherit by right of representation (i.e., per stirpes) unless concurring with brothers or sisters of the deceased, as provided expressly by Article 975: "ART. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions." Nevertheless, the trial court was correct when it held that, in case of intestacy, nephews and nieces of the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from articles 1001, 1004, 1005, and 1009 of the Civil Code of the Philippines, that provided as follows: Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This was also and more clearly the case under the Spanish Civil Code of 1889, that immediately preceded the Civil Code now in force (R. A. 386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows: "ART. 952. In the absence of brothers or sisters and of nephews or nieces, children of the former, whether of the whole blood or not, the surviving spouse, if not separated by a final decree of divorce shall succeed to the entire estate of the deceased." "ART. 954. Should there be neither brothers nor sisters, nor children of brothers or sisters, nor a surviving spouse, the other collateral relatives shall succeed to the estate of deceased. The latter shall succeed without distinction of lines or preference among them by reason of the whole blood." It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or widow. The present Civil Code of the Philippines merely placed the spouse on a par with the nephews and nieces and brothers and sisters of the deceased, but without altering the preferred position of the latter vis a vis the other collaterals.

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Wills & Succession/ Atty Uribe Appellants quote paragraph 2 of Tolentino's commentaries to Article 1009 of the present Civil Code as declaring that Article 1009 does not establish a rule of preference. Which is true as to "other collaterals", since preference among them is according to their proximity to the decedent, as established by Article 962, paragraph 1. "ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place."

The probate court in its order of December 26, 1946 approved the project of partition. It held that in certain clauses of the will the testator intended to conserve his properties not in the sense of disposing of them after his death but for the purpose of preventing that "tales bienes fuesen malgastados o desfilpar rados por los legatarios" and that if the testator intended a perpetual prohibition against alienation, that condition would be regarded "como no puesta o no existente". It concluded that "no hay motivos legales o morales para que la sucession de Don Teodoro R. Yangco sea declarada intestada."

But Tolentino does not state that nephews and nieces concur with other collaterals of equal degree. On the contrary, in the first paragraph of his commentaries to Article 1009 (Vol. II, p. 439) (which counsel for appellants had unethically omitted to quote), Tolentino expressly states:

On September 20, 1949, the legatees executed an agreement for the settlement and physical partition of the Yangco estate. The probate court approved that agreement and noted that the 1945 project of partition was pro tanto modified. That did not set at rest the controversy over the Yangco estate.

"Other Collaterals.— The last of the relatives of the decedent to succeed in intestate succession are the collaterals other than brothers or sisters or children of brothers or sisters. They are, however, limited to relatives within the fifth degree. Beyond this, we can safely say, there is hardly any affection to merit the succession of collaterals. Under the law, therefore, persons beyond the fifth degree are no longer considered as relatives, for successional purposes.

The trial court in its decision of July 2, 1956 dismissed the action on the grounds of res judicata and laches. It held that the intrinsic validity of Yangco's will was passed upon in its order dated December 26, 1946 in Special Proceeding No. 54863 approving the project of partition for the testator's estate.

"Article 1009 does not state any order of preference. However, this article should be understood in connection with the general rule that the nearest relatives exclude the farther. Collaterals of the same degree inherit in equal parts, there being no right of representation. They succeed without distinction of lines or preference among them on account of the whole blood relationship." (Italics supplied) We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. Corpus vs. Corpus Teodoro R. Yangco died in Manila on April 20, 1939 at the age of seventy-seven years. His will dated August 29, 1934 was probated in the Court of First Instance of Manila in Special Proceeding No. 54863. The decree of probate was affirmed in this Court's 1941 decision in Corpus vs. Yangco, 73 Phil. 527. The complete text of the will is quoted in that decision. Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles, the widow of Tomas Corpus. Before her union with Luis Rafael Yangco, Ramona had begotten five children with Tomas Corpus, two of whom were the aforenamed Pablo Corpus and Jose Corpus. Pursuant to the order of the probate court, a project of partition dated November 26, 1945 was submitted by the administrator and the legatees named in the will. That project of partition was opposed by the estate of Luis R. Yangco whose counsel contended that an intestacy should be declared because the will does not contain an institution of heir. It was also opposed by Atty. Roman A. Cruz, who represented Juanita Corpus, Pedro Martinez and Juliana de Castro. Juanita Corpus was already dead when Atty. Cruz appeared as her counsel.

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Appellant Corpus contends in this appeal that the trial court erred in holding (1) that Teodoro R. Yangco was a natural child, (2) that his will had been duly legalized, and (3) that plaintiff's action is barred by res judicata and laches. In the disposition of this appeal, it is not necessary to resolve whether Yangco's will had been duly legalized and whether the action of Tomas Corpus is barred by res judicata and laches. The appeal may be resolved by determining whether Juanita Corpus, the mother of appellant Tomas Corpus, was a legal heir of Yangco. Has Tomas Corpus a cause of action to recover his mother's supposed intestate share in Yangco's estate? To answer that question, it is necessary to ascertain Yangco's filiation. The trial court found that Yangco "a su muerte tambien le sbrevivieron Luis y Paz appellidados Yangco, hermanos naturales reconocidos por su padre natural Luis R. Yangco". The basis of the trial court's conclusion that Teodoro R. Yangco was an acknowledged natural child and not a legitimate child was the statement in the will of his father, Luis Rafael Yangco, dated June 14, 1907, that Teodoro and his three other children were his acknowledged natural children. On the other hand, the children of Ramona Arguelles and Tomas Corpus are presumed to be legitimate. A marriage is presumed to have taken place between Ramona and Tomas. Semper praesumitur pro matrimonio. It is disputably presumed "That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage"; "that a child born in lawful wedlock, there being no divorce, absolute or from bed and board, is legitimate", and "that things have happened according to the ordinary course of nature and the ordinary habits of life" (Sec. 5[z], [bb] and [cc], Rule 131, Rules of Court). Since Teodoro R. Yangco was an acknowledged natural child or was illegitimate and since Juanita Corpus was the legitimate child of Jose Corpus, himself a legitimate child, we hold that appellant Tomas Corpus has no cause of action for the recovery of the supposed hereditary share of his mother, Juanita Corpus, as a legal heir, in Yangco's estate. Juanita

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Wills & Succession/ Atty Uribe Corpus was not a legal heir of Yangco because there is no reciprocal succession between legitimate and illegitimate relatives. The trial court did not err in dismissing the complaint of Tomas Corpus. Appellant Corpus concedes that if Teodoro R. Yangco was a natural child, he (Tomas Corpus) would have no legal personality to intervene in the distribution of Yangco's estate (p. 8, appellant's brief). The rule in article 943 is now found in article 992 of the Civil Code which provides that "an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child". That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family while the legitimate family is, in turn, hated by the illegitimate child. The law does not recognize the blood tie and seeks to avoid further grounds of resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185-6). Under articles 944 and 945 of the spanish Civil Code, "if an acknowledged natural or legitimated child should die without issue, either legitimate or acknowledged, the father or mother who acknowledged such child shall succeed to its entire estate; and if both acknowledged it and are alive, they shall inherit from it share and share alike. In default of natural ascendants, natural and legitimated children shall be succeeded by their natural brothers and sisters in accordance with the rules established for legitimate brothers and sisters." Hence, Teodoro R. Yangco's half brothers on the Corpus side, who were legitimate, had no right to succeed to his estate under the rules of intestacy. Following the rule in article 992, formerly article 943, it was held that the legitimate relatives of the mother cannot succeed her illegitimate child. By reason of that same rule, the natural child cannot represent his natural father in the succession to the estate of the legitimate grandparent (Llorente vs. Rodriguez, 10 Phil. 585; Centeno vs. Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The natural daughter cannot succeed to the estate of her deceased uncle, a legitimate brother of her natural mother (Anuran vs. Aquino and Ortiz, 38 Phil. 29).

XX. ORDER OF INTESTATE SUCCESSION A. Descending Direct Line 1.

Estate of legitimate decedent a. Illegitimate children

Art. 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895. (n) Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased. (939a)

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Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. (940a) Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a) Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children. (942-841a) Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a) Corpus vs. Corpus Teodoro R. Yangco died in Manila on April 20, 1939 at the age of seventy-seven years. His will dated August 29, 1934 was probated in the Court of First Instance of Manila in Special Proceeding No. 54863. The decree of probate was affirmed in this Court's 1941 decision in Corpus vs. Yangco, 73 Phil. 527. The complete text of the will is quoted in that decision. Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles, the widow of Tomas Corpus. Before her union with Luis Rafael Yangco, Ramona had begotten five children with Tomas Corpus, two of whom were the aforenamed Pablo Corpus and Jose Corpus. Pursuant to the order of the probate court, a project of partition dated November 26, 1945 was submitted by the administrator and the legatees named in the will. That project of partition was opposed by the estate of Luis R. Yangco whose counsel contended that an intestacy should be declared because the will does not contain an institution of heir. It was also opposed by Atty. Roman A. Cruz, who represented Juanita Corpus, Pedro Martinez and Juliana de Castro. Juanita Corpus was already dead when Atty. Cruz appeared as her counsel. The probate court in its order of December 26, 1946 approved the project of partition. It held that in certain clauses of the will the testator intended to conserve his properties not in the sense of disposing of them after his death but for the purpose of preventing that "tales bienes fuesen malgastados o desfilpar rados por los legatarios" and that if the testator intended a perpetual prohibition against alienation, that condition would be regarded "como no puesta o no existente". It concluded that "no hay motivos legales o morales para que la sucession de Don Teodoro R. Yangco sea declarada intestada." On September 20, 1949, the legatees executed an agreement for the settlement and physical partition of the Yangco estate. The probate court approved that agreement and noted that the 1945 project of partition was pro tanto modified. That did not set at rest the controversy over the Yangco estate.

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Wills & Succession/ Atty Uribe The trial court in its decision of July 2, 1956 dismissed the action on the grounds of res judicata and laches. It held that the intrinsic validity of Yangco's will was passed upon in its order dated December 26, 1946 in Special Proceeding No. 54863 approving the project of partition for the testator's estate. Appellant Corpus contends in this appeal that the trial court erred in holding (1) that Teodoro R. Yangco was a natural child, (2) that his will had been duly legalized, and (3) that plaintiff's action is barred by res judicata and laches. In the disposition of this appeal, it is not necessary to resolve whether Yangco's will had been duly legalized and whether the action of Tomas Corpus is barred by res judicata and laches. The appeal may be resolved by determining whether Juanita Corpus, the mother of appellant Tomas Corpus, was a legal heir of Yangco. Has Tomas Corpus a cause of action to recover his mother's supposed intestate share in Yangco's estate? To answer that question, it is necessary to ascertain Yangco's filiation. The trial court found that Yangco "a su muerte tambien le sbrevivieron Luis y Paz appellidados Yangco, hermanos naturales reconocidos por su padre natural Luis R. Yangco". The basis of the trial court's conclusion that Teodoro R. Yangco was an acknowledged natural child and not a legitimate child was the statement in the will of his father, Luis Rafael Yangco, dated June 14, 1907, that Teodoro and his three other children were his acknowledged natural children. On the other hand, the children of Ramona Arguelles and Tomas Corpus are presumed to be legitimate. A marriage is presumed to have taken place between Ramona and Tomas. Semper praesumitur pro matrimonio. It is disputably presumed "That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage"; "that a child born in lawful wedlock, there being no divorce, absolute or from bed and board, is legitimate", and "that things have happened according to the ordinary course of nature and the ordinary habits of life" (Sec. 5[z], [bb] and [cc], Rule 131, Rules of Court). Since Teodoro R. Yangco was an acknowledged natural child or was illegitimate and since Juanita Corpus was the legitimate child of Jose Corpus, himself a legitimate child, we hold that appellant Tomas Corpus has no cause of action for the recovery of the supposed hereditary share of his mother, Juanita Corpus, as a legal heir, in Yangco's estate. Juanita Corpus was not a legal heir of Yangco because there is no reciprocal succession between legitimate and illegitimate relatives. The trial court did not err in dismissing the complaint of Tomas Corpus. Appellant Corpus concedes that if Teodoro R. Yangco was a natural child, he (Tomas Corpus) would have no legal personality to intervene in the distribution of Yangco's estate (p. 8, appellant's brief). The rule in article 943 is now found in article 992 of the Civil Code which provides that "an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child". That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family while the

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legitimate family is, in turn, hated by the illegitimate child. The law does not recognize the blood tie and seeks to avoid further grounds of resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185-6). Under articles 944 and 945 of the spanish Civil Code, "if an acknowledged natural or legitimated child should die without issue, either legitimate or acknowledged, the father or mother who acknowledged such child shall succeed to its entire estate; and if both acknowledged it and are alive, they shall inherit from it share and share alike. In default of natural ascendants, natural and legitimated children shall be succeeded by their natural brothers and sisters in accordance with the rules established for legitimate brothers and sisters." Hence, Teodoro R. Yangco's half brothers on the Corpus side, who were legitimate, had no right to succeed to his estate under the rules of intestacy. Following the rule in article 992, formerly article 943, it was held that the legitimate relatives of the mother cannot succeed her illegitimate child. By reason of that same rule, the natural child cannot represent his natural father in the succession to the estate of the legitimate grandparent (Llorente vs. Rodriguez, 10 Phil. 585; Centeno vs. Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The natural daughter cannot succeed to the estate of her deceased uncle, a legitimate brother of her natural mother (Anuran vs. Aquino and Ortiz, 38 Phil. 29). Leonardo vs. CA

From the record, it appears that Francisca Reyes who died intestate on July 12, 1942 was survived by two (2) daughters, Maria and Silvestra Cailles, and a grandson, Sotero Leonardo, the son of her daughter, Pascuala Cailles who predeceased her. Sotero Leonardo died in 1944, while Silvestra Cailles died in 1949 without any issue. On October 29, 1964, petitioner Cresenciano Leonardo, claiming to be the son of the late Sotero Leonardo, filed a complaint for ownership of properties, sum of money and accounting in the Court of First Instance of Rizal seeking judgment (1) to be declared one of the lawful heirs of the deceased Francisca Reyes, entitled to one-half share in the estate of said deceased jointly with defendant, private respondent herein, Maria Cailles, (2) to have the properties left by said Francisca Reyes, described in the complaint, partitioned between him and defendant Maria Cailles, and (3) to have an accounting of all the income derived from said properties from the time defendants took possession thereof until said accounting shall have been made, delivering to him his share therein with legal interest. Answering the complaint, private respondent Maria Cailles asserted exclusive ownership over the subject properties and alleged that petitioner is an illegitimate child who cannot succeed by right of representation. For his part, the other defendant, private respondent James Bracewell, claimed that said properties are now his by virtue of a valid and legal deed of sale which Maria Cailles had subsequently executed in his favor. These properties were allegedly mortgaged to respondent Rural Bank of Parañaque, Inc. sometime in September 1963. I

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Wills & Succession/ Atty Uribe "RESPONDENT COURT ERRED IN HOLDING THAT THE PROPERTIES IN QUESTION ARE THE EXCLUSIVE PROPERTIES OF PRIVATE RESPONDENTS. II "RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER HAS NOT ESTABLISHED HIS FILIATION. III "RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER, AS THE GREAT GRANDSON OF FRANCISCA REYES, HAS NO LEGAL RIGHT TO INHERIT BY REPRESENTATION." To begin with, the Court of Appeals found the subject properties to be the exclusive properties of the private respondents. "After declaring it in her name, Maria Cailles paid the realty taxes starting from 1918 up to 1948. Thereafter as she and her son Narciso Bracewell, left for Nueva Ecija, Francisca Reyes managed the property and paid the realty tax of the land. However, for unexplained reasons, she paid and declared the same in her own name. Because of this, plaintiff decided to run after this property, erroneously thinking that as the great grandson of Francisca Reyes, he had some proprietary right over the same. "After declaring it in her name, Maria Cailles likewise paid the realty tax in 1917 and continued paying the same up to 1948. Thereafter when she and her son, Narciso Bracewell, established their residence in Nueva Ecija, Francisca Reyes administered the property and like in the first case, declared in 1949 the property in her own name. Thinking that the property is the property of Francisca Reyes, plaintiff filed the instant complaint, claiming a portion thereof as the same allegedly represents the share of his father. "Going to the issue of filiation, plaintiff claims that he is the son of Sotero Leonardo, the son of one of the daughters (Pascuala) of Francisca Reyes. He further alleges that since Pascuala predeceased Francisca Reyes, and that his father, Sotero, who subsequently died in 1944, survived Francisca Reyes, plaintiff can consequently succeed to the estate of Francisca Reyes by right of representation. "Since his supposed right will either rise or fall on the proper evaluation of this vital evidence, We have minutely scrutinized the same, looking for that vital link connecting him to the family tree of the deceased Francisca Reyes. However, this piece of evidence does not in any way lend credence to his tale. "This is because the name of the child described in the birth certificate is not that of the plaintiff but a certain 'Alfredo Leonardo' who was born on September 13, 1938 to Sotero Leonardo and Socorro Timbol. Other than his bare allegation, plaintiff did not submit any durable evidence showing that the 'Alfredo Leonardo' mentioned in the birth certificate is no other than he himself. Thus, even without taking time and space to go into further details, We may safely conclude that plaintiff failed to prove his filiation which is a fundamental requisite in this action where he is claiming to be an heir in the inheritance in question." 4

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That is likewise a factual finding which may not be disturbed in this petition for review in the absence of a clear showing that said finding is not supported by substantial evidence, or that there was a grave abuse of discretion on the part of the court making the finding of fact. Referring to the third assignment of error, even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by right of representation, claim a share of the estate left by the deceased Francisca Reyes considering that, as found again by the Court of Appeals, he was born outside wedlock as shown by the fact that when he was born on September 13, 1938, his alleged putative father and mother were not yet married, and what is more, his alleged father's first marriage was still subsisting. At most, petitioner would be an illegitimate child who has no right to inherit ab intestato from the legitimate children and relatives of his father, like the deceased Francisca Reyes. (Article 992, Civil Code of the Philippines.) 2. a.

Estate of Illegitimate decedent Legitimate children and descendant

Art. 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. (n) Art. 987. In default of the father and mother, the ascendants nearest in degree shall inherit. Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita. (937)

SUBSECTION 3. - Illegitimate Children Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased. (939a) Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. (940a) Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a)

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Wills & Succession/ Atty Uribe Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children. (942-841a) Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a) Art. 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike. (944) Art. 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse who shall be entitled to the entire estate. If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half. (945a)

b.

the legitimate parents or ascendants to the other half. (836a) Art. 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. (n) Art. 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child. (n) Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth. (841a) Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. (953, 837a)

Illegitimate children and descendant

Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a) Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a) B. Surviving Spouse Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001. (946a) Art. 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children. (834a) Art. 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and

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Art. 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted in the preceding articles. (n) Santillon vs. Miranda On November 21, 1953, Santillon died without testament in Tayug, Pangasinan, his residence, leaving one son Claro, and his wife, Perfecta Miranda. During his marriage, Pedro acquired several parcels of land located in that province. About four years after his death, Claro Santillon filed a petition for letters of administration. Opposition to said petition was entered by the widow Perfecta Miranda and the spouses Benito U. Miranda and Rosario Corrales on the following grounds: (a) that the properties enumerated in the petition were all conjugal, except three parcels which Perfecta Miranda claimed to be her exclusive properties; (b) that Perfecta Miranda by virtue of two documents had conveyed 3/4 of her undivided share in most of the properties enumerated in the petition to said spouses Benito and Rosario; (c) that administration of the estate was not necessary, there being a case for partition pending; and (d) that if administration was necessary at all, the oppositor Perfecta Miranda and not the petitioner was better qualified for the post. It appears that subsequently, oppositor Perfecta Miranda was appointed administratrix of the estate. On April 25, 1961, Claro filed a "Motion to Declare Share of Heirs" and to resolve the conflicting claims of the parties with respect to their respective rights in the estate. Invoking Art. 892 of the New Civil Code, he insisted that after deducting 1/2 from the conjugal properties as the conjugal share of Perfecta, the remaining 1/2 must be divided as follows: 1/4 for her and

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Wills & Succession/ Atty Uribe 3/4 for him. Oppositor Perfecta, on the other hand, claimed that besides her conjugal half, she was entitled under Art. 996 of the New Civil Code, to another 1/2 of the remaining half. In other words, Claro claimed 3/4 of Pedro's inheritance, while Perfecta claimed 1/2. From this order, petitioner Claro Santillon has appealed to this Court. Two questions of law are involved. The first, raised in Perfecta's Motion to Dismiss Appeal, is whether the order of the lower court is appealable. And the second, raised in appellant's lone assignment of error, is: How shall the estate of a person who dies intestate be divided when the only survivors are the spouse and one legitimate child? The Second Issue:— Petitioner rests his claim to 3/4 of his father's estate on Art. 892, of the New Civil Code which provides that: "If only the legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. . . .' As she gets one-fourth, therefore, I get 3/4, says Claro. Perfecta, on the other hand, cites Art. 996 which provides: "If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children." Replying to Perfecta's claim, Claro says the article is unjust and inequitable to the extent that it grants the widow the same share as that of the children in intestate succession, whereas in testate, she is given 1/4 and the only child 1/2. Oppositor Perfecta Miranda, on the other hand, contends that Art. 996 should control, regardless of its alleged inequity, being as it is, a provision on intestate succession involving a surviving spouse and a legitimate child, inasmuch as in statutory construction, the plural word "children" includes the singular, "child". Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas Art. 996 comes under the chapter on Legal or Intestate Succession. Such being the case, it is obvious that Claro cannot rely on Art. 892 to support his claim to 3/4 of his father's estate. Art. 892 merely fixes the legitime of the surviving spouse and Art. 888 thereof, the legitime of children in testate succession. While it may indicate the intent of the law with respect to the ideal shares that a child and a spouse should get when they concur with each other, it does not fix the amount of shares that such child and spouse are entitled to when intestacy occurs. Because if the latter happens, the pertinent provision on intestate succession shall apply; i. e. Art. 996. This is, remember, intestate proceedings. In the New Civil Code's chapter in legal or intestate succession, the only article applicable is Art. 996. Our colleague Mr. Justice J. B. L. Reyes, professor of Civil Law, is quoted as having expressed the opinion that under this article, when the widow survives with only one legitimate child, they share the estate in equal parts. 1 Senator Tolentino in his commentaries writes as follows: "One child Surviving. — If there is only one legitimate child surviving with the spouse, since they share equally, one-half of the estate goes to the child and the other half goes to the surviving spouse. Although

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the law refers to "children or descendants," the rule in statutory construction that the plural can be understood to include the singular is applicable in his case." (Tolentino, Civil Code of the Philippines, Vol. III, p. 436.) The theory of those holding otherwise, seems to be premised on these propositions: (a) Art. 996 speaks of "children," therefore it does not apply when there is only one "child"; consequently Art. 892 (and Art. 888) should be applied, thru a process of judicial construction and analogy; (b) Art. 996 is unjust or unfair because whereas in testate succession, the widow is assigned one-fourth only (Art. 892), she would get 1/2 in intestate. Children:— It is a maxim of statutory construction that words in plural include the singular. 2 So Art. 996 could or should be read (and so applied): "if the widow or widower and a legitimate child are left, the surviving spouse has the same share as that of the child." Indeed, if we refuse to apply the article to this case on the ground that "child" is not included in "children", the consequences would be tremendous, because "children" will not include "child" In fact, those who say, "children" in Art. 996 does not include "child" seem to be inconsistent when they argue from the premise that "in testate succession the only legitimate child gets one-half and the widow, one-fourth." The inconsistency is clear, because the only legitimate child gets one-half under Art. 888, which speaks of "children", not "child". So if "children" in Art. 888 includes "child", the same meaning should be given to Art. 996. Unfairness of Art. 996. — Such position, more clearly stated is this: In testate succession, where there is only one child of the marriage, the child gets one-half, and the widow or widower one-fourth. But in intestate, if Art. 996 is applied now, the child gets one-half, and the widow or widower one-half. Unfair or inequitable, they insist. On this point, it is not correct to assume that in testate succession the widow or widower "gets only one-fourth." She or he may get one-half — if the testator so wishes. So, the law virtually leaves it to each of the spouses to decide (by testament) whether his or her only child shall get more than his or her survivor. C. Ascending Direct line 1.

Legitimate parents and ascendants

Art. 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. (935a) Art. 986. The father and mother, if living, shall inherit in equal shares. Should one only of them survive, he or she shall succeed to the entire estate of the child. (936) Art. 987. In default of the father and mother, the ascendants nearest in degree shall inherit. Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of

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Wills & Succession/ Atty Uribe different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita. (937)

Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate. (956a)

2.

Art. 1012. In order that the State may take possession of the property mentioned in the preceding article, the pertinent provisions of the Rules of Court must be observed. (958a)

Illegitimate parents

Art. 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike. (944) D. Collateral Line Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (946a) Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. (947) Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. (948) Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (949) Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. (950) Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood. (915)

Art. 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the deceased last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary may warrant. The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used. (956a) Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within five years from the date the property was delivered to the State, such person shall be entitled to the possession of the same, or if sold the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. (n) PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION XXI. Right of Accretion

Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.

Art. 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n)

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. (954a)

Art. 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary:

Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line. (955a) E. The State

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(1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the

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Wills & Succession/ Atty Uribe inheritance, or be incapacitated to receive it. (928a) Art. 1017. The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion. In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. (983a) Art. 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs. (981) Art. 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger. Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion. (985) Art. 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. (986) Art. 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions established for heirs. (987a) XXII. Partition and Distribution of Estate A. Partition Art. 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n) Art. 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value. (n)

Art. 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the co-heirs. The provisions of this and of the preceding article shall be observed even should there be among the coheirs a minor or a person subject to guardianship; but the mandatary, in such case, shall make an inventory of the property of the estate, after notifying the coheirs, the creditors, and the legatees or devisees. (1057a) Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction. (n) Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. Even though forbidden by the testator, the coownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the coheirs. (1051a) Art. 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional. (1054a) Art. 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. (1061) Art. 1086. Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash.

Art. 1080. Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.

Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. (1062)

A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. (1056a)

Art. 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage thereto through malice or neglect. (1063)

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Wills & Succession/ Atty Uribe Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. (1067a) Art. 1089. The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated. (1065a) Art. 1090. When the title comprises two or more pieces of land which have been assigned to two or more co-heirs, or when it covers one piece of land which has been divided between two or more coheirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest shall have the title. (1066a) Alsua-Betts vs. CA Sps. Doromal vs. CA, Javellana Lot 3504 of the cadastral survey of Iloilo, situated in the poblacion of La Paz, one of its districts, with an area of a little more than 2-1/2 hectares was originally decreed in the name of the late Justice Antonio Horilleno, in 1916, under Original Certificate of Title No. 1314, Exh. A; but before he died, on a date not particularized in the record, he executed a last will and testament attesting to the fact that it was a co-ownership between himself and his brothers and sisters, Exh. C; so that the truth was that the owners or better stated, the co-owners were; beside Justice Horilleno, 'Luis, Soledad, Fe, Rosita, Carlos and Esperanza,' all surnamed Horilleno, and since Esperanza had already died, she was succeeded by her only daughter and heir herein plaintiff. Filomena Javellana, in the proportion of 1/7 undivided ownership each; now then, even though their right had not as yet been annotated in the title, the co-owners led by Carlos, and as to deceased Justice Antonio Horilleno, his daughter Mary, sometime since early 1967, had wanted to sell their shares, or if possible if Filomena Javellana were agreeable, to sell the entire property, and they hired an acquaintance Cresencia Harder, to look for buyers, and the latter came to interest defendants, the father and son, named Ramon Doromal, Sr. and Jr., and in preparation for the execution of the sale, since the brothers and sisters Horilleno were scattered in various parts of the country, Carlos in Ilocos Sur, Mary in Baguio, Soledad and Fe, in Mandaluyong, Rizal, and Rosita in Basilan City, they all executed various powers of attorney in favor of their niece, Mary H. Jimenez Exh. 1-8, they also caused preparation of a power of attorney of identical tenor for signature by plaintiff, Filomena Javellana, Exh. M, and sent it with a letter of Carlos, Exh. 7 dated 18 January, 1968 unto her thru Mrs. Harder, and here, Carlos informed her that the price was P4.00 a square meter, — although it now turns out according to Exh. 3 that as early as 22 October, 1967, Carlos had received in check as earnest money from defendant Ramon Doromal, Jr., the sum of P5,000.00 and the price therein agreed upon was five (P5.00) pesos a square meter, — as indeed in another letter also of Carlos to Plaintiff

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in 5 November, 1967, Exh. 6, he had told her that the Doromals had given the earnest money of P5,000.00 at P5.00 a square meter, — at any rate, plaintiff not being agreeable, did not sign the power of attorney, and the rest of the coowners went ahead with their sale of their 6/7, Carlos first seeing to it that the deed of sale by their common attorney in fact, Mary H. Jimenez be signed and ratified as it was signed and ratified in Candon, Ilocos Sur, on 15 January, 1968, Exh. 2, then brought to Iloilo by Carlos in the same month, and because the Register of Deeds of Iloilo refused to register right away, since the original registered owner, Justice Antonio Horilleno was already dead, Carlos had to ask as he did, hire Atty. Teotimo Arandela to file a petition within the cadastral case, on 26 February, 1968, for the purpose, Exh. C, after which Carlos returned to Luzon, and after compliance with the requisites of publication, hearing and notice, the petition was approved, and we now see that on 29 April, 1968, Carlos already back in Iloilo went to the Register of Deeds and caused the registration of the order of the cadastral court approving the issuance of a new title in the name of the coowners, as well as of the deed of sale to the Doromals, as a result of which on that same date, a new title was issued TCT No. 23152, in the name of the Horillenos to 6/7 and plaintiff Filomena Javellana to 1/7, Exh. D, only to be cancelled on the same day under TCT No. 23153, Exh. 2, already in the names of the vendees Doromals for 6/7 and to herein plaintiff, Filomena Javellana, 1/7, and the next day 30 April, 1968, the Doromals paid unto Carlos by check, the sum of P97,000.00 Exh. 1, of Chartered Bank which was later substituted by check of Phil. National Bank, because there was no Chartered Bank Branch in Ilocos Sur, but besides this amount paid in check, the Doromals according to their evidence still paid an additional amount in cash of P18,250.00 since the agreed price was P5.00 a square meter; and thus was consummated the transaction, but it is here where complications set in. plaintiff's lawyer, Atty. Arturo H. Villanueva, bringing with him her letter of that date and then and there said lawyer manifested to the Doromals that he had the P30,000.00 with him in cash, and tendered it to them, for the exercise of the legal redemption, the Doromals were aghast, and refused, and the very next day, as has been said, 11 June, 1968, plaintiff filed this case, and in the trial, thru oral and documentary proofs, sought to show that as co-owner, she had the right to redeem at the price stated in the deed of sale, Exh. 2, namely P30,000.00 of the same; but defendants in answer, and in their evidence, oral and documentary sought to show that plaintiff had no more right to redeem, and that if ever she should have, that it should be at the true and real price by them paid, namely, the total sum of P115,250.00, and trial judge, after hearing the evidence, believed defendants, that plaintiff had no more right, to redeem, because, 'Plaintiff was informed of the intended sale of the 6/7 share belonging to the Horillenos.' Upon these facts, the Court of Appeals reversed the trial court's decision and held that although respondent Javellana was informed of her co-owners' proposal to sell the land in question to petitioners she was, however, "never notified . . . least of all, in writing", of the actual execution and registration of the corresponding deed of sale, hence, said respondent's right to redeem had not yet expired at the time she made her offer for that purpose thru her letter of June 10, 1968 delivered to petitioners on even date. The intermediate court further held that the redemption price to be paid by respondent should be that stated in the deed of sale which is P30,000

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Wills & Succession/ Atty Uribe notwithstanding that the preponderance of the evidence proves that the actual price paid by petitioners was P115,250. We cannot agree with petitioners Petitioners do not question respondent's right to redeem, she being admittedly a 1/7 coowner of the property in dispute. The thrust of their first assignment of error is that for purposes of Article 1623 of the Civil Code which provides that:"ART. 1623.The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners. The right of redemption of co-owners excludes that of adjoining owners." the letters sent by Carlos Horilleno to respondent and dated January 18, 1968, Exhibit 7, and November 5, 1967, Exhibit 6, constituted the required notice in writing from which the 30day period fixed in said provision should be computed. But to start with, there is no showing that said letters were in fact received by respondent and when they were actually received. Besides, petitioners do not pinpoint which of these two letters, their dates being more than two months apart, is the required notice. In any event, as found by the appellate court, neither of said letters referred to a consummated sale. The fact alone that in the later letter of January 18, 1968 the price indicated was P4.00 per square meter while in that of November 5, 1967, what was stated was P5.00 per square meter negatives the possibility that a "price definite" had already been agreed upon. While P5,000 might have indeed been paid to Carlos in October, 1967, there is nothing to show that the same was in the concept of the earnest money contemplated in Article 1482 of the Civil Code, invoked by petitioner, as signifying perfection of the sale. Viewed in the backdrop of the factual milieu thereof extant in the record, We are more inclined to believe that the said P5,000 were paid in the concept of earnest money as the term was understood under the Old Civil Code, that is, as a guarantee that the buyer would not back out, considering that it is not clear that there was already a definite agreement as to the price then and that petitioners were decided to buy 6/7 only of the property should respondent Javellana refuse to agree to part with her 1/7 share. We are of the considered opinion and so hold that for purposes of the co-owner's right of redemption granted by Article 1620 of the Civil Code, the notice in writing which Article 1623 requires to be made to the other co-owners and from receipt of which the 30-day period to redeem should be counted is a notice not only of a perfected sale but of the actual execution and delivery of the deed of sale. This is implied from the latter portion of Article 1623 which requires that before a register of deeds can record a sale by a coowner, there must be presented to him, an affidavit to the effect that the notice of the sale had been sent in writing to the other co-owners.

of P115,250.00 because another amount in cash of P18,250 was paid afterwards." It is, therefore, the contention of petitioners here that considering said finding of fact of the intermediate court, it erred in holding nevertheless that "the redemption price should be that stated in the deed of sale." Again, petitioners' contention cannot be sustained. As stated in the decision under review, the trial court found that "the consideration of P30,000 only was placed in the deed of sale to minimize the payment of the registration fees, stamps and sales tax." With this undisputed fact in mind, it is impossible for the Supreme Court to sanction petitioners' pragmatic but immoral posture. Being patently violative of public policy and injurious to public interest, the seemingly wide practice of understating considerations of transactions for the purpose of evading taxes and fees due to the government must be condemned and all parties guilty thereof must be made to suffer the consequences of their ill-advised agreement to defraud the state. Verily, the trial court fell short of its devotion and loyalty to the Republic in officially giving its stamp of approval to the stand of petitioners and even berating respondent Javellana as wanting to enrich herself "at the expense of her own blood relatives who are her aunts, uncles and cousins." On the contrary, said "blood relatives" should have been sternly told, as We here hold, that they are in paridelicto with petitioners in committing tax evasion and should not receive any consideration from any court in respect to the money paid for the sale in dispute. Their situation is similar to that of parties to an illegal contract. 1 1st — According to Art. 1619'Legal redemption is the right to be subrogated, upon the same terms and conditions stipulated in the contract, in the place of one who acquires a thing by purchase or dation in payment, or by any other transaction whereby ownership is transmitted by onerous title.' pp. 471-472, New Civil Code, If it be argued that foregoing solution would mean unjust enrichment for plaintiff, it need only be remembered that plaintiff's right is not contractual, but a mere legal one, the exercise of a right granted by the law, and the law is definite that she can subrogate herself in place of the buyer,'upon the same terms and conditions stipulated in the contract,' in the words of Art. 1619, and here the price. 'stipulated in the contract' was P30,000.00, in other words, if this be possible enrichment on the part of Filomena, it was not unjust but just enrichment because permitted by the law; if it still be argued that plaintiff would thus be enabled to abuse her right, the answer simply is that what she is seeking to enforce is not an abuse but a mere exercise of a right; if it he stated that just the same, the effect of sustaining plaintiff would be to promote not justice but injustice, the answer again simply is that this solution is not unjust because it only binds the parties to make good their solemn representation to possible redemptioners on the price of the sale, to what they had solemnly averred in a public document required by the law to be the only basis for that exercise of redemption;" (Pp. 24-27, Record.) WHEREFORE, the decision of the Court of Appeals is affirmed, with costs against petitioners. Alonzo vs. CA

The only other pivotal issue raised by petitioners relates to the price which respondent offered for the redemption in question. In this connection, from the decision of the Court of Appeals, We gather that there is "decisive preponderance of evidence" establishing "that the price paid by defendants was not that stated in the document, Exhibit 2, of P30,000 but much more, at least P97,000, according to the check, Exhibit 1, if not a total

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The question is sometimes asked, in serious inquiry or in curious conjecture, whether we are a court of law or a court of justice. Do we apply the law even if it is unjust or do we administer justice even against the law? Thus queried, we do not equivocate. The answer is that we do neither because we are a court both of law and of justice. We apply the law with

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Wills & Succession/ Atty Uribe justice for that is our mission and purpose in the scheme of our Republic. This case is an illustration. Five brothers and sisters inherited in equal pro indiviso shares a parcel of land registered in the mane of their deceased parents under OCT No. 10977 of the Registry of Deeds of Tarlac. 1 On March 15, 1963, one of them, Celestino Padua, transferred his undivided share of the herein petitioners for the sum of P550.00 by way of absolute sale. 2 One year later, on April 22, 1964, Eustaquia Padua, his sister, sold her own share to the same vendees, in an instrument denominated "Con Pacto de Retro Sale," for the sum of P440.00. 3 By virtue of such agreements, the petitioners occupied, after the said sales, an area corresponding to two-fifths of the said lot, representing the portions sold to them. The vendees subsequently enclosed the same with a fence. In 1975, with their consent, their son Eduardo Alonzo and his wife built a semi-concrete house on a part of the enclosed area. 4 On February 25, 1976, Mariano Padua, one of the five coheirs, sought to redeem the area sold to the spouses Alonzo, but his complaint was dismissed when it appeared that he was an American citizen. 5 On May 27, 1977, however, Tecla Padua, another co-heir, filed her own complaint invoking the same right of redemption claimed by her brother. 6 The only real question in this case, therefore, is the correct interpretation and application of the pertinent law as invoked, interestingly enough, by both the petitioners and the private respondents. This is Article 1088 of the Civil Code, providing as follows: "Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor." Thus, according to Justice J.B.L. Reyes, who was the ponente of the Court, furnishing the co-heirs with a copy of the deed of sale of the property subject to redemption would satisfy the requirement for written notice. "So long, therefore, as the latter (i.e., the redemptioner) is informed in writing of the sale and the particulars thereof," he declared, "the thirty days for redemption start running."

and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed. As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond them." 13 While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature. While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to give effect to the lawmaker's will. In requiring written notice, Article 1088 seeks to ensure that the redemptioner is properly notified of the sale and to indicate the date of such notice as the starting time of the 30-day period of redemption. Considering the shortness of the period, it is really necessary, as a general rule, to pinpoint the precise date it is supposed to begin, to obviate any problem of alleged delays, sometimes consisting of only a day or two. Was there a valid notice? Granting that the law requires the notice to be written, would such notice be necessary in this case? Assuming there was a valid notice although it was not in writing, would there be any question that the 30-day period for redemption had expired long before the complaint was filed in 1977? In the face of the established facts, we cannot accept the private respondents' pretense that they were unaware of the sales made by their brother and sister in 1963 and 1964. By requiring written proof of such notice, we would be closing our eyes to the obvious truth in favor of their palpably false claim of ignorance, thus exalting the letter of the law over its purpose. The purpose is clear enough: to make sure that the redemptioners are duly notified. We are satisfied that in this case the other brothers and sisters were actually informed, although not in writing, of the sales made in 1963 and 1964, and that such notice was sufficient. Now, when did the 30-day period of redemption begin?

As "it is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular method of giving notice, and that notice must be deemed exclusive," the Court held that notice given by the vendees and not the vendor would not toll the running of the 30-day period. The petition before us appears to be an illustration of the Holmes dictum that "hard cases make bad laws" as the petitioners obviously cannot argue against the fact that there was really no written notice given by the vendors to their coheirs. Strictly applied and interpreted, Article 1088 can lead to only one conclusion, to wit, that in view of such deficiency, the 30-day period for redemption had not begun to run, much less expired in 1977. Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable,

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While we do not here declare that this period started from the dates of such sales in 1963 and 1964, we do say that sometime between those years and 1976, when the first complaint for redemption was filed, the other co-heirs were actually informed of the sale and that thereafter the 30-day period started running and ultimately expired. This could have happened any time during the interval of thirteen years, when none of the co-heirs made a move to redeem the properties sold. By 1977, in other words, when Tecla Padua filed her complaint, the right of redemption had already been extinguished because the period for its exercise had already expired. "While the general rule is, that to charge a party with laches in the assertion of an alleged right it is essential that he should have knowledge of the facts upon which he bases his claim, yet if the

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Wills & Succession/ Atty Uribe circumstances were such as should have induced inquiry, and the means of ascertaining the truth were readily available upon inquiry, but the party neglects to make it, he will be chargeable with laches, the same as if he had known the facts." 15 It was the perfectly natural thing for the co-heirs to wonder why the spouses Alonzo, who were not among them, should enclose a portion of the inherited lot and build thereon a house of strong materials. This definitely was not the act of a temporary possessor or a mere mortgagee. This certainly looked like an act of ownership. Yet, given this unseemly situation, none of the co-heirs saw fit to object or at least inquire, to ascertain the facts, which were readily available. It took all of thirteen years before one of them chose to claim the right of redemption, but then it was already too late. We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law, which the respondent court understandably applied pursuant to existing jurisprudence. The said court acted properly as it had no competence to reverse the doctrines laid down by this Court in the above-cited cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the De Conejero and Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in view of the peculiar circumstances of this case. The co-heirs in this case were undeniably informed of the sales although no notice in writing was given them. And there is no doubt either that the 30-day period began and ended during the 14 years between the sales in question and the filing of the complaint for redemption in 1977, without the co-heirs exercising their right of redemption. These are the justifications for this exception. WHEREFORE, the petition is granted. The decision of the respondent court is REVERSED Bautista vs. Grino-Aquino Can the property of the surviving husband be the subject of an extrajudicial partition of the estate of the deceased wife? This is the singular issue in this petition. In Civil Case No. 4033-P, petitioners instituted an action in the Court of First Instance of Rizal to declare the deed of extrajudicial partition, deed of absolute sale, Transfer Certificates of Title Nos. 14182, 14186 and 15665 all of Registry of Deeds of Pasay City and Tax Declaration No. 5147, null and void. That both parties admit that the land in question was registered in the name of petitioner Manuel Bautista under T.C.T No. 2210, and the latter inherited this land from his father, Mariano Bautista; Both petitioners and private respondents admit that on Dec. 22, 1966, a Deed of Extrajudicial Partition was executed. Private respondents were signatories to the deed, and the signature of petitioner Manuel Bautista was supposed to appear in that document, although petitioner Manuel Bautista denied having signed that Extrajudicial Partition; Both parties admit that upon registration of the Deed of Extrajudicial Partition, T.C.T. No. 2210 was cancelled and in lieu thereof, T.C.T.-T-14182 was issued; The parties admit that the private respondents, with the exception of Manolito Bautista, executed a Deed of Absolute Sale in favor of Manolito Bautista of that property;Upon registration of the

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Deed of Sale, T.C.T.-T-14182 was cancelled and in lieu thereof, T.C.T. No. T-14186 was issued to Manolito Bautista; n August 7, 1969, Manolito Bautista executed a Deed of Sale in favor of the other private respondents and upon registration of said Deed of Sale, T.C.T. Nos. T-15665, T-15666, T-15667, T-15668, T-15669, T-15670, T-15671, were issued to private respondents; Parties admit that petitioner Manuel Bautista married his second wife Emiliana Tamayo; Parties admit that Manuel Bautista and his second wife, Emiliana Tamayo, had only a child, Evangeline Bautista, born on April 29, 1949; That the property in question was the subject matter of extrajudicial partition of property on December 22, 1966, among the heirs of the late Juliana Nojadera, the first wife of Manuel Bautista; Manuel Bautista denied participation in the Extrajudicial Partition of Property; On August 1, 1974, all the parties agreed to submit to the NBI the questioned signature of Manuel Bautista; That the NBI concluded that the questioned document was authentic. (Pp. 37-38, rollo; pp. 2-3 of decision of respondent court). In a decision of January 14, 1983, the trial court dismissed the complaint with costs against plaintiffs. On appeal, a decision was rendered in due course by the Court of Appeals on August 3, 1987, affirming the decision of the trial court. PUBLIC RESPONDENTS AUTHORIZED THE EXTRAJUDICIAL PARTITION OF FUTURE INHERITANCE IN CLEAR VIOLATION OF ARTICLE 1347 OF THE NEW CIVIL CODE; PUBLIC RESPONDENTS AUTHORIZED THE PRETERITION OF PETITIONER EVANGELINE BAUTISTA IN VIOLATION OF THE LAW ON SUCCESSION." (P. 7, petition for review; p. 8, rollo) The petition is impressed with merit. The findings of facts of both the trial court and the respondent Appellate Court that the signature of Manuel Bautista in the questioned Deed of Extrajudicial Partition is authentic, as examined by the NBI, can no longer be questioned in this proceeding. Nevertheless, even granting that the signature of Manuel Bautista in the questioned Extrajudicial Deed of Partition is genuine, an examination of the document based on admitted and proven facts renders the document fatally defective. The extrajudicial partition was supposed to be a partition without court intervention of the estate of the late Juliana Nojadera, first wife of Manuel Bautista, constituting the subject property. In the same document Manuel Bautista appears to have waived his right or share in the property in favor of private respondents. However, the property subject matter of said extrajudicial partition does not belong to the estate of Juliana Nojadera. It is the exclusive property of Manuel Bautista who inherited the same from his father Mariano Bautista, which was registered in his name under T.C.T. No. 2210. Under Section 1, Rule 74 of the Rules of Court an extrajudicial settlement of the Estate applies only to the estate left by the decedent who died without a will, and with no creditors, and the heirs are all of age or the minors are represented by their

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Wills & Succession/ Atty Uribe judicial or legal representatives. If the property does not belong to the estate of the decedent certainly it cannot be the subject matter of an extrajudicial partition. As the subject property does not belong to the estate of Juliana Nojadera, the Deed of Extrajudicial Partition, is void ab initio being contrary to law. To include in an extrajudicial partition property which does not pertain to the estate of the deceased would be to deprive the lawful owner thereof of his property without due process of law. Only property of the estate of the decedent which is transmitted by succession can be the lawful subject matter of an extrajudicial partition. In this case, the said partition obviously prejudices the right of Manuel Bautista as exclusive owner of the property. The said partition also effectively resulted in the preterition of the right of Evangeline Bautista as a compulsory heir of Manuel Bautista, daughter of the latter by his second marriage. It is difficult to believe that Manuel Bautista would wittingly overlook and ignore the right of her daughter Evangeline to share in the said property. It is not surprising that he denied signing the said document. Moreover, private respondents knew Evangeline Bautista who is their half-sister to be a compulsory heir. The court finds that her preterition was attended with bad faith hence the said partition must be rescinded. The Court observes that after the execution of said extrajudicial partition and issuance of the title in their names, private respondents except Manolito Bautista in turn executed a deed of absolute sale of the property in favor of the latter in whose name the title was also issued. And yet soon thereafter another deed of sale was executed this time by Manolito Bautista selling back the same property to private respondents in whose names the respective titles were thus subsequently issued. This series of transactions between and among private respondents is an indication of a clever scheme to place the property beyond the reach of those lawfully entitled thereto. Moreover, such extrajudicial partition cannot constitute a partition of the property during the lifetime of its owner, Manuel Bautista. Partition of future inheritance is prohibited by law. As said Extrajudicial Partition dated December 22, 1966, of property belonging exclusively to petitioner Manuel Bautista, is null and void ab initio it follows that all subsequent transactions involving the same property between and among the private respondents are also null and void.

Delos Santos vs. Dela Cruz From the record of this case, we cull the following salient facts: On May 21, 1965, Gertrudes de los Santos filed a complaint for specific performance against Maximo de la Cruz, alleging, among others, that on August 24, 1963, she and several coheirs, including the defendant, executed an extrajudicial partition agreement (a copy of which was attached to the complaint) over a certain portion of land with an area of around 20,000 sq. m.; that the parties thereto had agreed to adjudicate three (3) lots to the defendant, in addition to his corresponding share, on condition that the latter would undertake the development and subdivision of the estate which was the subject matter of the agreement, all expenses in connection therewith to be defrayed from the proceeds of the sale of the aforementioned three (3) lots; that in spite of demands by the plaintiff, by the other co-heirs, and by the residents of the

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subdivision, the defendant refused to perform his aforesaid obligation although he had already sold the aforesaid lots. The plaintiff prayed the court to order the defendant to comply with his obligation under the extra-judicial partition agreement and to pay the sum of P1,000.00 as attorney's fees and costs. In his answer, the defendant admitted the due execution of the extrajudicial partition agreement, but set up the affirmative defenses that the plaintiff had no cause of action against him because the said agreement was void with respect to her, for the reason that the plaintiff was not an heir of Pelagia de la Cruz, deceased owner of the property, and was included in the extrajudicial partition agreement by mistake; and that although he had disposed of the three lots adjudicated to him, nevertheless the proceeds of the sale were not sufficient to develop and improve properly the subdivided estate. The answer contained a counterclaim wherein the defendant alleged that the plaintiff had likewise sold her share in the estate for P10,000.00, and that the extrajudicial partition agreement being void insofar as the latter was concerned, he was entitled to one-fourth (1/4) of the proceeds as his share by way of reversion. The defendant prayed that the complaint be dismissed; that the extrajudicial partition agreement be declared void with respect to the plaintiff; and, on his counterclaim, that the plaintiff be ordered to pay him the sum of P2,500.00. In its decision dated November 3, 1966, the court a quo held that the defendant, being a party to the extrajudicial partition agreement, was estopped from raising in issue the right of the plaintiff to inherit from the decedent Pelagia de la Cruz; hence, he must abide by the terms of the agreement. The court ordered the defendant "to perform his obligations to develop Lots 1, 2 and 3 of (LRC) Psd-29561 as described on page 2 of the Extrajudicial Partition Agreement" (meaning, apparently, that the defendant should develop the subdivision because said Lots 1, 2 and 3 were intended to be sold for this purpose), and to pay the plaintiff the sum of P2,000.00 as actual damages, the sum of P500.00 as attorney's fees, and the costs. No disposition was made of defendant's counterclaim. The defendant filed a "Motion for New Trial' but the same was denied. Hence, this appeal. In the stipulation of facts submitted to the court below, the parties admit that the owner of the estate, subject matter of the extrajudicial partition agreement, was Pelagia de la Cruz, who died intestate on October 16, 1962 that defendant-appellant is a nephew of the said decedent; that plaintiff-appellee is a grandniece of Pelagia de la Cruz, her mother, Marciana de la Cruz, being a niece of the said Pelagia de la Cruz; that plaintiffappellee's mother died on September 22, 1935, thus predeceasing Pelagia de la Cruz; and that the purpose of the extrajudicial partition agreement was to divide and distribute the estate among the heirs of Pelagia de la Cruz. The pivotal question is whether, in the premises, plaintiffappellee is an heir of the decedent. We are convinced that she is not. Plaintiff-appellee being a mere grandniece of Pelagia de la Cruz, she could not inherit from the latter by right of representation. "ART. 972. The right of representation takes place in the direct descending line, but never in the ascending.

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Wills & Succession/ Atty Uribe "In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood." Much less could plaintiff-appellee inherit in her own right. "ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place . . ." In the present case, the relatives "nearest in degree" to Pelagia de la Cruz are her nephews and nieces, one of whom is defendant-appellant. Necessarily, plaintiff-appellee, a grandniece, is excluded by law from the inheritance. But what is the legal effect of plaintiff-appellee's inclusion and participation in the extrajudicial partition agreement insofar as her right to bring the present action is concerned? They did not confer upon her the right to institute this action. The express purpose of the extrajudicial partition agreement, as admitted by the parties in the stipulation of facts, was to divide the estate among the heirs of Pelagia de la Cruz. Indeed, the said agreement itself states that plaintiff-appellee was participating therein in representation of her deceased mother. It is quite apparent that in executing the partition agreement, the parties thereto were laboring under the erroneous belief that plaintiff-appellee was one of the legal heirs of Pelagia de la Cruz. Plaintiff-appellee not being such an heir, the partition is void with respect to her, pursuant to Article 1105 of the Civil Code, which reads:

person without any right, by virtue of a null and void partition, must restore it to the legitimate successor in the inheritance (De Torres vs. De Torres, et al., supra). Of course, if such share has already been disposed of by appellee to a bona fide purchaser, as seems to be indicated in the unproven allegations of the counterclaim, We cannot render judgment awarding any specific amount to defendant-appellant as his proportionate share of the proceeds of such sale for the reason that, as already stated above, this aspect of the counterclaim has not been touched upon in the stipulation of facts nor has it been supported by evidence which appellant should have presented in the lower court but did not. B.

Effects of Partition

Art. 1091. A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. (1068) Art. 1092. After the partition has been made, the coheirs shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated. (1069a) Art. 1093. The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified.

"ART. 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person."

Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve. (1071)

Partition of property affected between a person entitled to inherit from the deceased owner thereof and another person who thought he was an heir, when he was not really and lawfully such, to the prejudice of the rights of the true heir designated by law to succeed the deceased, is null and void (De Torres vs. De Torres, et al., 28 Phil. 49). A fortiori, plaintiffappellee could hardly derive from the agreement the right to have its terms enforced.

Art. 1094. An action to enforce the warranty among heirs must be brought within ten years from the date the right of action accrues. (n)

The extrajudicial partition agreement being void with respect to plaintiff-appellee, she may not be heard to assert estoppel against defendant-appellant. Estoppel cannot be predicated on a void contract (17 Am. Jur. 605), or on acts which are prohibited by law or are against public policy The award of actual damages in favor of plaintiff-appellee cannot be sustained in view of the conclusion we have arrived at above. Furthermore, actual or compensatory damages must be duly proved (Article 2199, Civil Code). Here, no proof of such damages was presented inasmuch as the case was decided on a stipulation of facts and no evidence was adduced before the trial court. Such being the case, defendant-appellant is apparently correct in his contention that the lower court erred in not passing on his counterclaim and, consequently, in not sentencing appellee to turn over to him his corresponding share of said portion received by appellee under the void partition. Remote relatives or unrelated persons who unduly received and took possession of the property of a deceased

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Art. 1095. If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made. The warranty of the solvency of the debtor can only be enforced during the five years following the partition. Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs. (1072a) Art. 1096. The obligation of warranty among co-heirs shall cease in the following cases: (1) When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired;

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Wills & Succession/ Atty Uribe (2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith;

delivered to him (Annex "R", pp. 114-116, rec.), to which Juanita filed an opposition dated July 26, 1966 (Annex "S", pp. 117-121, rec.).

(3) When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property. (1070a)

In an order dated September 8, 1966, the lower court denied the motion for reconsideration of the order dated April 27, 1966, and directed Fericsons Inc. and the Ideal Rice Mills to deliver to Alejandro or his representative the 229 cavans and 46 kilos and 325 and 1/2 cavans and 23 kilos of palay respectively deposited with the said rice mills upon the filing by Alejandro of a bond in the amount of P12,000.00 duly approved by the court (Annex "T", pp. 122-127 rec.).

Guilas vs. CFI of Pampanga It appears from the records that Jacinta Limson de Lopez, of Guagua, Pampanga was married to Alejandro Lopez y Siongco. They had no children. On April 28, 1936, Jacinta executed a will instituting her husband Alejandro as her sole heir and executor (pp. 20-21, rec.). In a Resolution dated October 26, 1953 in Sp. Proc. No. 894 entitled "En el Asunto de la Adopcion de la Menor Juanita Lopez y Limson" (pp. 92-94, 103, rec.), herein petitioner Juanita Lopez, then single and now married to Federico Guilas, was declared legally adopted daughter and legal heir of the spouses Jacinta and Alejandro. After adopting legally herein petitioner Juanita Lopez, the testatrix Doña Jacinta did not execute another will or codicil so as to include Juanita Lopez as one of her heirs. Nevertheless, in a project of partition dated March 19, 1960 executed by both Alejandro Lopez and Juanita Lopez-Guilas, the right of Juanita Lopez to inherit from Jacinta was recognized and Lots Nos. 3368 and 3441 (Jacinta's paraphernal property), described and embraced in Original Certificate of Title No. 13092, both situated in Bacolor, Pampanga — In an order dated April 23, 1960, the lower court approved the said project of partition and directed that the records of the case be sent to the archieves, upon payment of the estate and inheritance taxes ( On April 10, 1964, herein petitioner Juanita Lopez-Guilas filed a separate ordinary action to set aside and annul the project of partition, which case was docketed as Civil Case 2539 entitled "Juanita Lopez-Guilas vs. Alejandro Lopez" in the Court of First Instance of Pampanga, on the ground of lesion, preterition and fraud, and pray further that Alejandro Lopez be ordered to submit a statement of accounts of all the crops and to deliver immediately to Juanita lots nos. 3368 and 3441 of the Bacolor Cadastre, which were allocated to her under the project of partition (p. 132, rec.). In an order dated April 27, 1966, the lower court denied Juanita's motion to set aside the order of October 2, 1964 on the ground that the parties themselves agreed to suspend resolution of her petition for the delivery of her shares until after the civil action for annulment of the project of partition has been finally settled and decided (Annex "O", p. 72, rec.). Juanita filed a motion dated May 9, 1966 for the reconsideration of the order dated April 27, 1966 (Annex "P", pp. 73-77, rec.), to which Alejandro filed an opposition dated June 8, 1966 (Annex "Q", pp. 112-113, rec.). Subsequently, Alejandro filed a motion dated July 25, 1966; praying that the palay deposited with Fericsons and Ideal Rice Mill by the ten (10) tenants of the two parcels in question be

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Hence, this petition for certiorari and mandamus. The position of petitioner Juanita Lopez-Guilas should be sustained and the writs prayed for granted. The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of partition by itself alone does not terminate the probate proceeding (Timbol vs. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong vs. Tecson, 89 Phil., pp. 28-30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated (Siguiong vs. Tecson, supra.); because a judicial partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his share, provided the prescriptive period therefor has not elapsed (Mari vs. Bonilla, 83 Phil., 137). The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate on intestate court already final and executed and reshuffle properties long ago distributed and disposed of (Ramos vs. Ortuzar, 89 Phil., 730, 741-742; Timbol vs. Cano, supra.; Jingco vs. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic vs Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460-461). Section 1 of Rule 90 of the Revised Rules of Court of 1964 as worded, which secures for the heirs or legatees the right to "demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession", re-states the aforecited doctrines. The case of Austria vs. Heirs of Ventenilla (99 Phil. 1068) does not control the present controversy; because the motion filed therein for the removal of the administratrix and the appointment of a new administrator in her place was rejected by the court on the ground of laches as it was filed after the lapse of about 38 years from October 5, 1910 when the court issued an order settling and deciding the issues raised by the motion (L-10018, September 19, 1956, 99 Phil., 1069-1070). In the case at bar, the motion filed by petitioner for the delivery of her share was filed on July 20, 1964, which is just more than 3 years from August 28, 1961 when the amended project of partition was approved and within 5 years from April 23, 1960 when the original project of partition was approved. Clearly, her right to claim the two lots allocated to her under the project of partition had not yet expired. And in the light of Section 1 of Rule 90 of the Revised Rules of Court of 1964 and the

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Wills & Succession/ Atty Uribe jurisprudence above cited, the order dated December 15, 1960 of the probate court closing and terminating the probate case did not legally terminate the testate proceedings, for her share under the project of partition has not been delivered to her. While it is true that the order dated October 2, 1964 by agreement of the parties suspended resolution of her petition for the delivery of her shares until after the decision in the civil action for the annulment of the project of partition (Civil Case 2539) she filed on April 10, 1964; the said order lost its validity and efficacy when the herein petitioner filed on June 11, 1965 an amended complaint in said Civil Case 2539 wherein she recognized the partial legality and validity of the said project of partition insofar as the allocation in her favor of lots Nos. 3368 and 3441 in the delivery of which she has been insisting all along De los Santos vs. Dela Cruz (see previous chapter) Agutines vs. CFI A nine-hectare land in Marilao, Bulacan, is the subject of a three-cornered dispute between Severo Valenzuela on one side and the relatives of his deceased wife Generosa Agustines on the other, with the Archbishop of Manila as intervenor. In August, 1934, Generosa Agustines died leaving a will which was subsequently submitted for probate in the Court of First Instance of Bulacan in special proceedings No. 4944. Having no children, she named her surviving husband Severo Valenzuela the universal heir, but she specified some bequests. There was opposition to the approval of the will; however, after some negotiations, the sister (Josefa) and the nephews and nieces of the decedent (the other petitioners in this special civil action) executed on February 8, 1935, an extrajudicial partition with the respondent Severo Valenzuela, expressing conformity with the probate of the testament and dividing the properties of the deceased. They promised specifically to respect the wishes of the testatrix, Other items of the estate were apportioned among the signers of the deed of partition, which, submitted for approval, was confirmed by the probate court on October 31, 1936, in an order directing the administrator to deliver the respective shares to the heirs or legatees after paying the corresponding inheritance taxes. No appeal was ever taken from such order. Years passed. Severo Valenzuela failed to transmit the lot or part thereof to the parish church of Polo or to the Roman Catholic Archbishop of Manila. Wherefore, in May, 1944, the Agustines connections, petitioners herein, filed a complaint against Severo Valenzuela (civil case No. 158) seeking the return to them of that nine-hectare lot in Quiririt, alleging his breach of trust, plus renunciation on the part of the church of Polo that had reportedly neglected to demand compliance with the beneficial legacy. After the liberation and after they had become aware of Valenzuela's act that tended to frustrate their civil action No. 158, the petitioners herein submitted motions for reconsideration, the main theme of which was that the said last order amended the decree of distribution of October 31, 1936, which had become final long ago. All was to no avail. Hence they started this special civil action to annul the order of December 2, 1944, on the concrete proposition that the court

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had no jurisdiction to issue it, the order of October 31, 1936, having become final and executory eight years before. They contend, first, that under the will, and in accordance with the partition approved by the court in 1936, the Polo church was entitled to nine hectares in the Quiririt farm of Generosa. They argue next that when that church repudiated the nine-hectare lot, it again became a part of the whole Quiririt property which, under the partition, had been adjudicated to them. On the other hand, Severo Valenzuela's position is that the whole nine-hectare realty was awarded to him, subject to his obligation to donate to the Polo church such portion thereof as he may designate in his discretion. The intervenor, the Archbishop of Manila, representing the Polo church, shares the petitioner's opinion that a nine-hectare lot had been granted to said church. He maintains, however, that no voluntary renunciation of the legacy ever took place. It will be recalled that the will of Generosa Agustines contained a provision directing her husband to donate a portion of her Quiririt farm not exceeding nine hectares to the Polo church. What was the share of the church of Polo under the will and the extrajudicial partition? After examining and analyzing the circumstances of this litigation, we reach the conclusion that, as contended by petitioners and the intervenor, the extrajudicial partition definitely allotted a nine-hectare parcel to the Polo church. Supposing, that under the will Valenzuela's discretion included the determination of the area to be transferred — and not merely the selection of the site where the nine- hectare portion is to be segregated — still it seems clear that in the partition he elected or agreed that a nine-hectare portion shall be conveyed to the Polo church for masses. It is markworthy that, in addition to the nine-hectare portion, the deed mentions another parcel of three hectares exclusively given to Valenzuela. If the parties had not contemplated a nine-hectare donation to the Polo church, but empowered Valenzuela to fix the area subsequently, they would have assigned to him 12 hectares, with the provision that he will separate therefrom such portion as he may desire to convey to the parish of Polo. They did not say so. Instead they clearly stipulated that nine hectares were destined for "misas" (to the Church), and that three hectares would be reserved for him. It is quite probable that if Generosa's kin had known, in the course of bargaining, that Valenzuela would not deliver all the nine hectares to the Polo church but would retain eight hectares thereof, they would not have ceded to him an additional lot of three hectares. Proof positive that he had no choice as to the number of hectares is the fact that for eight years he never exercised it, keeping for himself in breach of trust the fruits of all the land. He might have ideas repugnant to the religious beliefs of his wife in regard to the celebration of masses for the dead. But as a man of honor, as the surviving partner, he had no excuse to set his own notions against those of his departed spouse, especially on a subject that concerned the disposition of her own properties. The will of the testatrix is law 1 . And his action in fixing one hectare, when his wife bequeathed a portion not exceeding nine hectares is surely such abuse of discretion (if

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Wills & Succession/ Atty Uribe he had any) that will not easily commend itself to judicial approbation. To make ourselves clear, we must state at the risk of repetition that although under the provisions of the will Severo Valenzuela might have elected to transfer to the Polo church a portion less than nine hectares, however, in the deed of partition he agreed — exercising his discretion — to assign nine hectares for masses (to the Polo church). It must be emphasized that in the distribution of the decedent's assets, we must face the deed of partition which bears the court's fiat. The last will becomes secondary in value. Important to bear this distinction in mind, because both in Valenzuela's motion and in the court's order approving the assignment of one hectare, only the will was quoted, and not the extrajudicial partition. Valenzuela's motion invoking the will exclusively induced the court into error. A third reason to hold that the document of partition deeded nine hectares to the Polo church is the fact that the court and the parties considered it a final settlement of all the rights of all concerned, the court approving it in toto and ordering the administrator to deliver to the beneficiaries their respective portions or legacies. The court's order even wrote finish to the expediente. And the parties, including Severo Valenzuela regarded it as final for eight years, until he found it necessary, for his own interests, to make another move indirectly amending the final settlement of October, 1936. Now then, if that partition avowedly settled the estate and accomplished its distribution, the implication is unavoidable that it left nothing to future judicial action or determination. Consequently it did not contemplate any subsequent fixing by Valenzuela, and approval by the court, of the portion to be transmitted to the Church of Polo. The parties deemed it final — because the rights of all beneficiaries were therein defined with certainty. Therefore, the attempt by the surviving husband to modify it eight years thereafter was completely beyond the pale of the law. C.

Recission and Nullity of Partition

Art. 1097. A partition may be rescinded or annulled for the same causes as contracts. (1073a) Art. 1098. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled, considering the value of the things at the time they were adjudicated. (1074a) Art. 1099. The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the testator was otherwise. (1075) Art. 1100. The action for rescission on account of lesion shall prescribe after four years from the time the partition was made. (1076) Art. 1101. The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition.

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Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and quality as that awarded to the plaintiff. If a new partition is made, it shall affect neither those who have not been prejudiced nor those have not received more than their just share. (1077a) Art. 1102. An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash. (1078a) Art. 1103. The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted. (1079a) Art. 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him. (1080) Art. 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person. (1081a)

Revised Rules of Court RULE 90 DISTRIBUTION AND PARTITION OF THE ESTATE SECTION 1. When order for distribution of residue made.— When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs. SEC. 2. Questions as to advancement to be determined.— Questions as to advancement made, or alleged to have been made, by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings; and the final order

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Wills & Succession/ Atty Uribe of the court thereon shall be binding on the person raising the questions and on the heir. SEC. 3. By whom expenses of partition paid.—If at the time of the distribution the executor or administrator has retained sufficient effects in his hands which may lawfully be applied for the expenses of partition of the properties distributed, such expenses of partition may be paid by such executor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue an execution in the name of the executor or administrator against the party not paying for the sum assessed. SEC. 4. Recording the order of partition of estate.—Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the province where the property is situated.

XXIII. EXECUTORS AND ADMINISTRATORS Art. 1058. All matters relating to the appointment, powers and duties of executors and administrators and concerning the administration of estates of deceased persons shall be governed by the Rules of Court. (n) Art. 1059. If the assets of the estate of a decedent which can be applied to the payment of debts are not sufficient for that purpose, the provisions of Articles 2239 to 2251 on Preference of Credits shall be observed, provided that the expenses referred to in Article 2244, No. 8, shall be those involved in the administration of the decedent's estate. (n) Art. 1060. A corporation or association authorized to conduct the business of a trust company in the Philippines may be appointed as an executor, administrator, guardian of an estate, or trustee, in like manner as an individual; but it shall not be appointed guardian of the person of a ward. (n) Relevant provisions from the Rules of Court

RULE 78 LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED SECTION 1. Who are incompetent to serve as a executors or administrators.—No person is competent to serve as executor or administrator who: (a) Is a minor; (b) Is not a resident of the Philippines; and (c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction

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of an offense involving moral turpitude. SEC. 2. Executor of executor not to administer estate.—The executor of an executor shall not, as such, administer the estate of the first testator. SEC. 3. Married women may serve.—A married woman may serve as executrix or administratrix, and the marriage of a single woman shall not affect her authority so to serve under a previous appointment SEC 4 Letters testamentary issued when will allowed.—When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trust, and gives bond as required by these rules SEC. 5. Where some coexecutors disqualified others may act.—When all of the executors named in a will can not act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will. SEC. 6. When and to whom letters of administration granted.—If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. RULE 81 BONDS OF EXECUTORS AND ADMINISTRATORS SECTION 1. Bond to be given before issuance of letters. Amount. Conditions.—Before an executor or administrator enters upon the execution of his trust, and letters testamentary or of administration issue, he shall give a bond, in such sum as the court directs, conditioned as follows: (a) To make and return to the court, within three (3) months, a true and complete inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him; (b) To administer according to these rules, and, if an

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Wills & Succession/ Atty Uribe executor, according to the will of the testator, all goods, chattels, rights, credits, and estate which shall at any time come to his possession or to the possession of any other person for him, and from the proceeds to pay and discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the court;

SEC. 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed.—An executor or administrator shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the expenses of administration.

(c) To render a true and just account of his administration to the court within one (1) year, and at any other time when required by the court;

RULE 86

(d) To perform all orders of the court by him to be performed. SEC. 2. Bond of executor where directed in will. When further bond required.—If the testator in his will directs that the executor serve without bond, or with only his Individual bond, he may be allowed by the court to give bond in such sum and with such surety as the court approves conditioned only to pay the debts of the testator; but the court may require of the executor a further bond in case of a change in his circumstances, or for other sufficient cause, with the conditions named in the last preceding section. SEC. 3. Bonds of joint executors and administrators.—When two or more persons are appointed executors or administrators the court may take a separate bond from each, or a joint bond from all. SEC. 4. Bond of special administrator.—A special administrator before entering upon the duties of his trust shall give a bond, in such sum as the court directs, conditioned that he will make and return a true inventory of the goods, chattels, rights, credits, and estate of the deceased which come to his possession or knowledge, and that he will truly account for such as are received by him when required by the court, and will deliver the same to the person appointed executor or administrator, or to such other person as may be authorized to receive them. RULE 84 GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS SECTION 1. Executor or administrator to have access to partnership books and property. How right enforced.—The executor or administrator of the estate of a deceased partner shall at all times have access to, and may examine and take copies of, books and papers relating to the partnership business, and may examine and make invoices of the property belonging to such partnership; and the surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control. On the written application of such executor or administrator, the Court having jurisdiction of the estate may order any such surviving partner or partners to freely permit the exercise of the rights, and to exhibit the books, papers, and property, as in this section provided, and may punish any partner failing to do so for contempt. SEC. 2. Executor or administrator to keep buildings in repair.— An executor or administrator shall maintain in tenantable repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed so to do by the court.

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CLAIMS AGAINST ESTATE SECTION 1. Notice to creditors to be issued by court.— Immediately after granting letters testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said court. SEC. 2. Time within which claims shall be filed.—In the notice provided in the preceding section, the court shall state the time for the filing of claims against the estate, which shall not be more than twelve (12) nor less than six (6) months after the date of the first publication of the notice. However, at any time before an order of distribution is entered, on application of a creditor who has failed to file his claim within the time previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month. SEC. 3. Publication of notice to creditors.—Every executor or administrator shall, immediately alter the notice to creditors is issued, cause the same to be published three (3) weeks successively in a newspaper of general circulation in the province, and to be posted for the same period in four public places in the province, and in two public places in the municipality where the decedent last resided SEC. 4. Filing copy of printed notice.—Within ten (10) days after the notice has been published and posted n accordance with the preceding section, the executor or administrator shall file or cause to be filed in the court a printed copy of the notice accompanied with an affidavit setting forth the dates of the first and last publication thereof and the name of the newspaper in which the same is printed. SEC. 5. Claims which must be filed under the notice. If not filed, barred; exceptions.—All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, and judgment for money against the decedent, must be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be set off against each other in such action; and if final judgment is rendered in favor of the defendant, the amount so determined shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings. Claims not yet due, or contingent, may be approved at their present value.

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Wills & Succession/ Atty Uribe SEC. 6. Solidary obligation of decedent.—Where the obligation of the decedent is solidary with another debtor, the claim shall be filed against the decedent as if he were the only debtor, without prejudice to the right of the estate to recover contribution from the other debtor. In a joint obligation of the decedent, the claim shall be confined to the portion belonging to him. SEC. 7. Mortgage debt due from estate.—A creditor holding a claim against the deceased secured by mortgage or other collateral security, may abandon the security and prosecute his claim in the manner provided in this rule, and share in the general distribution of the assets of the estate; or he may foreclose his mortgage or realize upon his security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceedings to realize upon the security, he may claim his deficiency judgment in the manner provided in the preceding section; or he may rely upon his mortgage or other security alone, and foreclose the same at any time within the period of the statute of limitations, and in that event he shall not be admitted as a creditor, and shall receive no share in the distribution of the other assets of the estate; but nothing herein contained shall prohibit the executor or administrator from redeeming the property mortgaged or pledged, by paying the debt for which it is held as security, under the direction of the court, if the court shall adjudge it to be for the best interest of the estate that such redemption shall be made. SEC. 8. Claim of executor or administrator against an estate.—If the executor or administrator has a claim against the estate he represents, he shall give notice thereof, in writing, to the court, and the court shall appoint a special administrator, who shall, in the adjustment of such claim, have the same power and be subject to the same liability as the general administrator or executor in the settlement of other claims. The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim. SEC. 9. How to file a claim. Contents thereof Notice to executor or administrator.—A claim may be filed by delivering the same with the necessary vouchers to the clerk of court and by serving a copy thereof on the executor or administrator. If the claim be founded on a bond, bill, note, or any other instrument, the original need not be filed, but a copy thereof with all indorsements shall be attached to the claim and filed therewith. On demand, however, of the executor or administrator, or by order of the court or judge, the original shall be exhibited, unless it be lost or destroyed, in which case the claimant must accompany his claim with affidavit or affidavits containing a copy or particular description of the instrument and stating its loss or destruction. When the claim is due, it must be supported by affidavit stating the amount justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. If the claim is not due, or is contingent, when filed, it must also be supported by affidavit stating the particulars thereof. When the affidavit is made by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant. The claim once filed shall be attached to the record of the case in which the letters testamentary or of administration were issued, although the court, in its discretion, and as a matter of convenience, may order all the claims to be collected in a separate folder.

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SEC. 10. Answer of executor or administrator. Offsets.— Within fifteen (15) days after service of a copy of the claim on the executor or administrator, he shall file his answer admitting or denying the claim specifically, and setting forth the substance of the matters which are relied upon to support the admission or denial. If he has no knowledge sufficient to enable him to admit or deny specifically, he shall state such want of knowledge. The executor or administrator in his answer shall allege in offset any claim which the decedent before death had against the claimant, and his failure to do so shall bar the claim forever. A copy of the answer shall be served by the executor or administrator on the claimant. The court in its discretion may extend the time for filing such answer. SEC. 11. Disposition of admitted claim.—Any claim admitted entirely by the executor or administrator shall immediately be submitted by the clerk to the court who may approve the same without hearing; but the court, in its discretion, before approving the claim, may order that known heirs, legatees, or devisees be notified and heard. If upon hearing, an heir, legatee, or devisee opposes the claim, the court may, in its discretion, allow him fifteen (15) days to file an answer to the claim in the manner prescribed in the preceding section. SEC. 12. Trial of contested claim.—Upon the filing of an answer to a claim, or upon the expiration of the time for such filing, the clerk of court shall set the claim for trial with notice to both parties. The court may refer the claim to a commissioner. SEC. 13. Judgment appealable.—The judgment of the court approving or disapproving a claim, shall be filed with the record of the administration proceedings with notice to both parties, and is appealable as in ordinary cases. A judgment against the executor or administrator shall be that he pay, in due course of administration, the amount ascertained to be due, and it shall not create any lien upon the property of the estate, or give to the judgment creditor any priority of payment. SEC. 14. Costs.—When the executor or administrator, in his answer, admits and offers to pay part of a claim, and the claimant refuses to accept the amount offered in satisfaction of his claim, if he fails to obtain a more favorable judgment, he cannot recover costs, but must pay to the executor or administrator costs from the time of the offer. Where an action commenced against the deceased for money has been discontinued and the claim embraced therein presented as in this rule provided, the prevailing party shall be allowed the costs of his action up to the time of its discontinuance. RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS SECTION 1. Actions which may and which may not be brought against executor or administrator.—No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him. SEC. 2. Executor or administrator may bring or defend actions which survive.—For the recovery or protection of the property or

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Wills & Succession/ Atty Uribe rights of the deceased, an executor or administrator may bring or defend, in the right of the deceased, actions for causes which survive. SEC. 3. Heir may not sue until share assigned.—When an executor or administrator is appointed and assumes the trust, no action to recover the title or possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee or until the time allowed for paying debts has expired. SEC. 4. Executor or administrator may compound with debtor.—With the approval of the court, an executor or administrator may compound with the debtor of the deceased for a debt due, and may give a discharge of such debt on receiving a just dividend of the estate of the debtor. SEC. 5. Mortgage due estate may be foreclosed.—A mortgage belonging to the estate of a deceased person, as mortgagee or assignee of the right of a mortgagee, may be foreclosed by the executor or administrator. SEC. 6. Proceedings when property concealed, embezzled, or fraudulently conveyed.—If an executor or administrator, heir, legatee, creditor, or other individual interested in the estate of the deceased, complains to the court having jurisdiction of the estate that a person is suspected of having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, or that such person has in his possession or has knowledge of any deed, conveyance, bond, contracts, or other writing which contains evidence of or tends to disclose the right, title, interest, or claim of the deceased to real or personal estate, or the last will and testament of the deceased, the court may cite such suspected person to appear before it and may examine him on oath on the matter of such complaint; and if the person so cited refuses to appear, or to answer on such examination such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. The interrogatories put to any such person, and his answers thereto, shall be in writing and shall be filed in the clerk’s office.

administrator for the payment of debts and expenses of administration, and the deceased in his lifetime had conveyed real or personal property, or a right or interest therein, or debt or credit, with intent to defraud his creditors or to avoid any right debt, or duty; or had so conveyed such property, right, interest, debt, or creditors, and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime, the executor or administrator may commence and prosecute to final judgment an action for the recovery of such property, right, interest, debts, or credit for the benefit of the creditors; but he shall not be bound to commence the action unless the creditors making the application pay such part of the costs and expenses, or give security therefor to the executor or administrator, as the court deems equitable. SEC. 10. When creditor may bring action. Lien for cost.— When there is such a deficiency of assets, and the deceased in his lifetime had made or attempted such a conveyance, as is stated in the last preceding section, and the executor and administrator has not commenced the action therein provided for, any creditor of the estate may, with the permission of the court, commence and prosecute to final judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance or attempted conveyance for the benefit of the creditors. But the action shall not be commenced until the creditor has filed in a court a bond executed to the executor or administrator, in an amount approved by the judge, conditioned to indemnify the executor or administrator against the costs and expenses incurred by reason of such action. Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. Where the conveyance or attempted conveyance has been made by the deceased in his lifetime in favor of the executor or administrator, the action which a creditor may bring shall be in the name of all the creditors, and permission of the court and filing of bond as above prescribed, are not necessary.

SEC. 7. Person entrusted with estate compelled to render account.—The court, on complaint of an executor or administrator, may cite a person entrusted by an executor or administrator with any part of the estate of the deceased to appear before it, and may require such person to render a full account, on oath, of the money, goods, chattels, bonds, accounts, or other papers belonging to such estate as came to his possession in trust for such executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear to render such account, the court may punish him for contempt as having disobeyed a lawful order of the court. SEC. 8. Embezzlement before letters issued.—If a person, before the granting of letters testamentary or of administration on the estate of the deceased, embezzles or alienates any of the money, goods, chattels, or effect of such deceased, such person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate. SEC. 9. Property fraudulent conveyed by deceased may be recovered. When executor or administrator must bring action.— When there is a deficiency of assets in the hands of an executor or

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