NOTARIAL WILLS ORDINARY WILLS

ALSUA-BETTS v CA (BUENVIAJE AND ALSUA)

92 SCRA 332
GUERRERO; July 30, 1979
NATURE
Appeal by certiorari
FACTS
- On November 25, 1949, Don Jesus Alsua and his wife, Doa Florentina
Rella, both of
Ligao, Albay, together with all their living children, Francisca Alsua-Betts,
Pablo Alsua,
Fernando Alsua thru this judicial guardian Clotilde Samson, and Amparo
Alsua de
Buenviaje, entered into a duly notarized agreement, Escritura de Particion
Extrajudicial , over the then present and existing properties of the spouses
Don Jesus
and Doa Florentina.
- On Jan. 5, 1955, Don Jesus and Doa Florentina, also known as Doa Tinay
separately
executed their respective holographic wills, the provisions of which were in
conformity
and in implementation of the extrajudicial partition of Nov. 25, 1949.
- On Aug.14, 1956, the spouses Don Jesus and Doa Tinay executed their
mutual and
reciprocal codicils amending and supplementing their respective
holographic wills. On
Feb. 19, 1957, their respective holographic wins and the codicils thereto
were duly
admitted to probate. Doa Tinay died in October 1959. In early Nov. 1959,
Don Jesus cancelled his
holographic and instructed his attorney to draft a new will. This subsequent
last Will
and Testament of Don Jesus executed on Nov. 14, 1959 contained an
express
revocation of his holographic wig of Jan. 5, 1955 and the codicil of Aug.14,
1956; a
statement requiring that all of his properties donated to his children in the
Deed of
1949 be collated and taken into account in the partition of his estate; the
institution of
all his children as devisees and legatees to certain specific properties; a
statement
bequeathing the rest of his properties and all that may be acquired in the
future,
before his death, to Pablo and Francesca; and a statement naming
Francesca as
executrix without bond.
- Don Jesus Alsua died in 1964. Petitioner Francisca Alsua Betts, as the
executrix

named in the will of Nov. 14, 1959, filed a petition for the probate of said
new will of
Don Jesus Alsua before the CFI Albay and was docketed as. Oppositions
thereto were
filed by respondents Pablo, Amparo and Fernando. CFI allowed the the
probate of the
will of Don Jesus Alsua. CA reversed: denied the probate of the will,
declared null and
void the two sales subject of the complaint and ordered the defendantspetitioners, to
pay damages to the plaintiffs-private respondents. Hence, this petition.
ISSUE
WON CA erred in denying the probate of the will
HELD
YES
- CA erred in denying probate to the will of Don Jesus dated November 14,
1959; it
erred in holding that Don Jesus being a party to the extrajudicial partition of
1949 was
contractually bound by the provisions thereof and hence could not revoke
his
participation therein by the simple expedience of making a new will with
contrary
provisions or dispositions. It is an error because the so-called extrajudicial
partition of
1949 is void and inoperative as a partition; neither is it a valid or
enforceable contract
because it involved future inheritance; it may only be given effect as a
donation inter
vivos of specific properties to the heirs made by the parents.
- Upon careful examination of the provisions of the holographic will and
codicil of Doa
Tinay, there was no indication whatsoever that Doa Tinay expressly or
impliedly
instituted both the husband and her children as heirs to her free portion of
her share
in the conjugal assets.
- Respondents insist that Don Jesus was bound by the extrajudicial partition
of
November 25, 1949 and had in fact conformed to said Partition by making a
holographic will and codicil with exactly the same provisions as those of
Doa Tinay,
which CA sustained. However SC ruled that Don Jesus was not forever
bound thereby
for his previous holographic will and codicil as such, would remain
revokable at his
discretion. Art. 828 of the new Civil Code is clear: "A will may be revoked by
the
testator at any time before his death. Any waiver or restriction of this right
is void."

There can be no restriction that may be made on his absolute freedom to

revoke his
holographic will and codicil previously made. This would still hold true even
if such
previous will had as in the case at bar already been probated
- The legitimes of the forced heirs were left unimpaired, as in fact, not one
of said
forced heirs claimed or intimated otherwise. The properties that were
disposed of in
the contested will belonged wholly to Don Jesus Alsua's free portion and
may be
diamond of by him to whomsoever he may choose.
- If he now favored Francesca more, as claimed by private respondents, or
Pablo as in
fact he was, We cannot and may not sit in judgment upon the motives and
sentiments
of Don Jesus in doing s

TESTAMENTARY CAPACITY
ABANGAN v ABANGAN
40 Phil 476

FACTS
- On September 19, 1917, CFI of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this decision the
opponents appealed.
- The will consists of 2 sheets. The first contains all the disposition
of the testatrix, duly signed at the bottom by Martin Montalban (in
the name and under the direction of the testatrix) and by three
witnesses. The following sheet contains only the attestation clause
duly signed at the bottom by the three instrumental witnesses.
Neither of these sheets is signed on the left margin by the
testatrix and the three witnesses, nor numbered by letters.
These omissions, according to appellants' contention, are defects
whereby the probate of the will should have been denied.
ISSUE
WON the will was duly admitted to probate.
HELD
YES. In requiring that each and every sheet of the will be signed on
the left margin by the testator and three witnesses in the presence
of each other, Act No. 2645 evidently has for its object the
avoidance of substitution of any of said sheets which may change
the disposition of the testatrix. But
when these dispositions are wholly written on only one
sheet (as in the instant case) signed at the bottom by the testator
and three witnesses, their signatures on the left margin of said
sheet are not anymore necessary as such will be purposeless.

In requiring that each and every page of a will must be numbered

correlatively in letters placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is to know whether
any sheet of the will has been removed. But, when all the
dispositive parts of a will are written on one sheet only, the object
of the statute disappears because the removal of this single sheet,
although unnumbered, cannot be hidden.
In a will consisting of two sheets the first of which contains all the
testamentary dispositions and is signed at the bottom by the
testator and three witnesses and the second contains only the
attestation clause and is signed also at the bottom by the three
witnesses, it is not necessary that both sheets be further signed on
their margins by the testator and the witnesses, or be paged.
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 primordal 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. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless
and frustative of the testator's last will, must be disregarded.
SUROZA v HONRADO
A.M. No. 2026
AQUINO; December 19, 1981
FACTS
- Respondent judge admitted to probate a will, which on its face is
void because it is written in English, a language not known to the
illiterate testatrix, and which is probably forged.
- Mauro Suroza, a member of the US Army married Marcelina
Salvador. They were childless but they reared a boy named
Agapito. Mauro died and Marcelina became a
pensioner of the Federal Government.
- Agapito married Nenita and had a child Lilia. Agapito was
eventually disabled and Nenita was appointed guardian when he
was declared as incompetent in a court proceeding. Arsenia dela
Cruz also wanted to be Agapito's guardian. She tried to prove that
Nenita was unfaithful to Agapito. The second guardianship
proceeding was dismissed and Nenita's appointment was
confirmed.

- Spouses Antonio Sy and Hermogena Talan begot a child named

Marilyn Sy, who was
entrusted to Arsenia and later delivered to Marcelina Salvador
Suroza. Marilyn was brought up as the supposed daughter of
Agapito, but she was not legally adopted.
Marliyn married Oscar Medrano
- Marcelina supposedly executed a notarial will when she was 73
years old. That will which is in English was thumbmarked by her.
She was illiterate. Marcelina bequeathed all her estate to her
supposed granddaughter Marilyn. When Marcelina died, she owned
a 150-square meter lot and house in that place.
- Marina Paje, alleged to be a laundrywoman of Marcelina and the
executrix in her will, filed with the Court a petition for the probate
of Marcelina's alleged will. The case was assigned to Judge
Reynaldo P. Honrado.
- Judge Honrado appointed Marina as administratrix.
- Upon motion of Marina, Judge Honrado issued another order
instructing a deputy sheriff to eject the occupants of the testatrix's
house, among whom was Nenita V. Suroza, and to place Marina in
possession thereof. That order alerted Nenita to the existence of
the testamentary proceeding for the settlement of Marcelina's
estate. She and the other occupants of the decedent's house filed
a motion to set aside the order ejecting them. They alleged that
the decedent's son Agapito was the sole heir of the deceased, that
he has a daughter named Lilia, that Nenita was Agapito's guardian
and that Marilyn was not Agapito's daughter nor the decedent's
granddaughter. Later, they questioned the probate court's
jurisdiction to issue the ejectment order.
-Judge Honrado issued an order probating her supposed will
wherein Marilyn was the
instituted heiress.
- Nenita filed in the testate case an omnibus petition "to set aside
proceedings,
admit
opposition
with
counter-petition
for
administration and preliminary injunction". Nenita 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
employed by Marina and Marilyn and that the thumbmarks of the
testatrix were procured by fraud or trick.
- Marina in her answer admitted that Marilyn was not Marcelina's
granddaughter but was the daughter of Agapito and Arsenia de la
Cruz and that Agapito was not Marcelina's son but merely an anakanakan who was not legally adopted.

- Judge Honrado dismissed Nenita's counter-petition for the

issuance of letters of administration because of the nonappearance of her counsel at the hearing.
- In a motion for the consolidation of all pending incidents, Nenita
V. Suroza reiterated
her contention that the alleged will is void because Marcelina did
not appear before
the notary and because it is written in English which is not known
to her. - Nenita "filed a case to annul" the probate proceedings
which was assigned to Judge
Honrado. It was dismissed.
- Judge Honrado closed the testamentary proceeding.
- About ten months later, Nenita charged Judge Honrado with
having probated the
fraudulent will of Marcelina. Nenita further alleged that Judge
Honrado, in spite of his
knowledge that the testatrix had a son named Agapito, who was
preterited in the will, did not take into account the consequences of
such a preterition.
- Nenita filed in the CA against Judge Honrado a petition for
certiorari and prohibition wherein she prayed that the will, the
decree of probate and all the proceedings in the probate case be
declared void. Attached to the petition was the affidavit of
Domingo P. Aquino, who notarized the will. He swore that the
testatrix and the three attesting witnesses did not appear before
him and that he notarized the will "just to accommodate a brother
lawyer on the condition" that said lawyer would bring to the notary
the testatrix and the witnesses but the lawyer never complied with
his commitment.
- The CA dismissed the petition because Nenita's remedy was an
appeal and her
failure to do so did not entitle her to resort to the special civil
action of certiorari .
HELD
- 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
win should have inherited the decedent's estate.
- A judge may be criminally liable or knowingly rendering an unjust
judgment or

interlocutory order or rendering a manifestly unjust judgment or

interlocutory order by
reason of inexcusable negligence or ignorance.
- Administrative action may be taken against a judge of the court
of first instance for
serious misconduct or inefficiency. Misconduct implies malice or a
wrongful intent, not
a mere error of judgment. "For serious misconduct to exist, there
must be reliable
evidence showing that the judicial acts complained of were corrupt
or inspired by an
intention to violate the law, or were in persistent disregard of wellknown legal rules"
- In this case, respondent judge, on perusing the will and noting
that it was written in
English and was thumbmarked 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". 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. Under the
circumstances, we find his negligence and dereliction of duty to be
inexcusable.

RESERVA TRONCAL
EDROSO v SABLAN
25 Phil. 295
ARELLANO; September 13 1913
-Marcelina Edroso was married to Victoriano Sablan until his death on Sept.
22, 1882.
In this marriage they had a son named Pedro, who was born on August 1,
1881, and
who at his father's death inherited the two said parcels. Pedro also died on
July 15,

1902, unmarried and without issue, and by his decease the two parcels of
land in
Pagsanjan, Laguna, passed through inheritance to his mother, Marcelina
Edroso.
Hence the hereditary title whereupon is based the application for
registration of her
ownership.
-Two legitimate brothers of Victoriano Sablan [uncles german of Pedro]
appeared in
the case to oppose the registration, claiming either (1) that the registration
be denied
OR (2) that if granted to her the right reserved by law to the opponents be
recorded in
the registration of each parcel.
-The Court of Land Registration denied the registration and the applicant
appealed
through a bill of exceptions. Registration was denied because the trial court
held that
the parcels of land in question partake of the nature of property required by
law to be
reserved and that in such a case application could only be presented jointly
in the
names of the mother and the said two uncles of Pedro Sablan.
Note: Mariano Sablan and Maria Rita Fernandez son Victoriano Sablan
son Pedro
Sablan mother Marcelina Edroso
ISSUE
WON the lands which are the subject matter of the application are required
by law to
be reserved
HELD
YES.
-The hereditary title is one without a valuable consideration [gratuitous
title]. He who
acquires by inheritance gives nothing in return for what he receives
-Art. 811, OCC provides: The ascendant who inherits from his descendant
property
which the latter acquired without a valuable consideration from another
ascendant, or
from a brother or sister, is under obligation to reserve what he has acquired
by
operation of law for the relatives who are within the third degree and
belong to the
line whence the property proceeded.
-Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two
parcels of
land which he acquired without a valuable consideration that is, by
inheritance from
another ascendant, his father Victoriano. Having acquired them by
operation of law,

she is obligated to reserve them intact for the claimants, who are uncles or
relatives
within the third degree and belong to the line of Mariano Sablan and Maria
Rita
Fernandez, whence the lands proceeded. The trial court's ruling that they
partake of
the nature of property required by law to be reserved is therefore in
accordance with
the law.
-If Pedro Sablan had instituted his mother in a will as the universal heiress
of his
property, all he left at death would not be required by law to be reserved,
but only[Art. 809, OCC.] In such case only the half constituting the legal
portion would be
required by law to be reserved, because it is what by operation of law
would fall to the
mother from her son's inheritance; the other half at free disposal would not
have to be
reserved. This is all that article 811 of the Civil Code says.
-Proof of testate succession devolves upon the heir or heiress who alleges
it. In this
case, the interested party has not proved that either of the lots became
Marcelinas
inheritance through the free disposal of her son.
-Two kinds of property required by law to be reserved are distinguished in
the Civil
Code. Article 968: "Besides the reservation imposed by article 811, the
widow or
widower contracting a second marriage shall be obliged to set apart for the
children
and descendants of the first marriage the ownership of all the property he
or she may
have acquired from the deceased spouse by will, by intestate succession,
by gift, or
other transfer w/out a valuable consideration."
-From principles of jurisprudence laid down by the Supreme Court of Spain,
it is
inferred that if from December, 1889, to July, 1893, a case had occurred of
a right
required to be reserved by article 811, the persons entitled to such right
would have
been able to institute, against the ascendants who must make the
reservation,
proceedings for the assurance and guaranty that articles 977 and 978 grant
to the
children of a first marriage against their father or mother who has married
again. The
proceedings for assurance, under article 977, are: Inventory of the property
subject to

the right reserved, annotation in the property registry of such right

reserved in the
real property and appraisal of the personal property; and the guaranty,
under article
978, is the assurance by mortgage, in the case of realty, of the value of
what is validly
alienated.
-Article 199 of amended Mortgage Law: "The special mortgage for
guaranteeing the
right reserved by article 811 of the Civil Code can only be required by the
relatives in
whose favor the property is to be reserved, if they are of age; if minors, it
will be
required by the persons who should legally represent them. In either case
the right of
the persons in whose favor the property must be reserved will be secured
by the same
requisites as set forth in the preceding articles (relative to the right
reserved by article
968 of the Civil Code), applying to the person obligated to reserve the right
the
provisions with respect to the father."
-The lapse of the ninety days is not the expiration by prescription of the
period for the
exercise of this right of action by the persons in whose favor the right must
be
reserved, but really the commencement thereof, and enables them to
exercise it at
any time, since no limit is set in the law. So, if the annotation of the right
required by
law to be reserved in the two parcels of land in question must be made in
the property
registry of the Mortgage Law, the persons entitled to it may now institute
proceedings
to that end, and an allegation of prescription against the exercise of such
right of
action cannot be sustained.
What are the rights in the property of the person who holds it subject to
the
reservation of article 811 of the Civil Code?
-The person required by article 811 to reserve the right has, beyond any
doubt at all,
the rights of use and usufruct. He has, moreover, the legal title and
dominion,
although under a condition subsequent. Clearly he has, under an express
provision of
the law, the right to dispose of the property reserved, and to dispose of is
to alienate,
although under a condition. He has the right to recover it, because he is the
one who

possesses or should possess it and have title to it, although a limited and
revocable
one. In a word, the legal title and dominion, even though under a condition,
reside in
him while he lives. After the right required by law to be reserved has been
assured, he
can do anything that a genuine owner can do.
-On the other hand, the relatives within the third degree in whose favor the
right is
reserved cannot dispose of the property, first because it is no way, either
actually,
constructively or formally, in their possession; and, moreover, because they
have no
title of ownership or of fee simple which they can transmit to another, on
the
hypothesis that only when the person who must reserve the right should
die before
them will they acquire it, thus creating a fee simple, and only then will they
take their
place in the succession of the descendant of whom they are relatives within
the third
degree, that is to say, a second contingent place in said legitimate
succession in the
fashion of aspirants to a possible future legacy. If any of the persons in
whose favor
the right is reserved should, after their right has been assured in the
registry, dare to
dispose of even nothing more than the fee simple of the property to be
reserved his
act would be null and void, for it is impossible to determine the part "that
might
pertain therein to the relative at the time he exercised the right, because in
view of
the nature and scope of the right required by law to be reserved the extent
of his right
cannot be foreseen, for it may disappear by his dying before the person
required to
reserve it, just as it may even become absolute should that person die."
-No act of disposal inter vivos of the person required by law to reserve the
right can
be impugned by him in whose favor it is reserved, because such person has
all,
absolutely all, the rights inherent in ownership, except that the legal title is
burdened
with a condition that the third party acquirer may ascertain from the
registry in order
to know that he is acquiring a title subject to a condition subsequent. In
conclusion, it
seems to us that only an act of disposal mortis causa in favor of persons
other than

relatives within the third degree of the descendant from whom he got the
property to
be reserved must be prohibited to him, because this alone has been the
object of the
law: "To prevent persons outside a family from securing, by some special
accident of
life, property that would otherwise have remained therein."
Can the heir of the property required by law to be reserved himself alone
register the
ownership of the property he has inherited?
-YES when the persons in whose favor the reservation must be made agree
thereto
and provided that the right reserved to them in the two parcels of land is
recorded, as
the law provides.

SIENES v ESPARCIA
1 SCRA 750
DIZON; March 24, 1966
FACTS
- Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa
Ruales,
he had four children named Agaton, Fernando, Paulina and Cipriana, while
with his
second wife, Andrea Gutang, he had an only son named Francisco.
- According to the cadastral records of Ayuquitan, Saturnino upon his death
left Lot
3368 (western portion) to Francisco.
- As a result of the cadastral proceedings, Original Certificate of Title No.
10275
covering Lot 3368 was issued in the name of Francisco. Because Francisco
was a
minor at the time, his mother Andrea Gutang administered the property for
him.
- When Francisco died, single and without any descendant, his mother, as
his sole
heir, executed the public instrument entitled EXTRAJUDICIAL SETTLEMENT
AND SALE
whereby, among other things, for and in consideration of the sum of
P800.00 she sold
the property in question to appellants.
- When thereafter said vendees demanded from Paulina Yaeso and her
husband Jose
Esparcia, the surrender of OCT No. 10275 which was in their possession
the
latter refused, thus giving rise to the filing of the corresponding motion in
the
cadastral record No. 507. The same, however, was denied. who as such had
declared the property in their name, executed a deed of sale in favor
of the spouses Fidel Esparcia and Paulina Sienes.

- Appellants commenced this action below to secure judgment (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; 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.
- Appellees disclaimed any knowledge or information regarding the sale
allegedly
made 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.
ISSUE
WON the sale made by Andrea Gutang in favor of appellants is void.
HELD
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, the lone
reservee
surviving her being Cipriana Yaeso.
In connection with reservable property, the weight of opinion is that the
reserve
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. 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 reservists, the rights acquired by the transferee being revoked or
resolved by
the survival of reservatarios at the time of the death of the reservista.
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 much as when Andrea Gutang died, Cipriana
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 Yaeso in favor of the spouses 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 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.

CHUA v CFI (SUSANA DE LA TORRE)

78 SCRA 406

MARTIN; August 31, 1977

NATURE
Petition for review of the decision of CFI which dismissed the complaint of
petitioners
FACTS
- 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. When
Patricia
died, Jose Frias Chua contracted a second marriage with Consolacion de la
Torre with
whom he had a child by the name of Juanita Frias Chua.
- Manuel died without leaving any issue.
- Then in 1929, Jose died intestate leaving his widow Consolacion and his
son Juanito
of the second marriage and sons Ignacio and Lorenzo of his first marriage.
- In the Intestate Proceeding, the lower court issued an order adjudicating,
among
others, the one-half portion of Lot No. 399 and the sum of P8,000.00 in
favor of Jose's
widow, Consolacion, the other half of Lot No. 399 in favor of Juanito;
P3,000.00 in
favor of Lorenze; and P1,550.00 in favor of Ignacio. By virtue of said
adjudication, a
TCT was issued by the Register of Deeds in the names of Consolacion and
Juanito.
- On Feb.27, 1952, Juanito died intestate without any issue. After his death,
his mother
Consolacion succeeded to his pro-indivisio share of Lot No. 399. In a week's
time,
Consolacion executed a declaration of heirship adjudicating in her favor the
proindiviso
share of her son Juanito as a result of which a TCT covering the whole lot
was
issued in her name. Then on March 5, 1966, Consolacion died intestate
leaving no
direct heir either in the descending or ascending line except her brother
and sisters.
- In the "Intestate Estate of Consolacion de la Torre", the petitioners herein,
Ignacio, of
the first marriage and Dominador and Remedios Chua, the supposed
legitimate
children of the deceased Lorenzo Chua, also of the first marriage filed the
complaint
before the respondent CFI of Negros Occidental, praying that the one-half
portion of
Lot No. 399 which formerly belonged to Juanito but which passed to
Consolacion upon

the latter's death, be declared as a reservable property for the reason that
the lot in
question was subject to reserval troncal pursuant to Article 981 of the NCC.
- the respondent Court rendered a decision dismissing the complaint of
petitioner.
ISSUE
WON the property in question was acquired by Juanito Frias Chua from his
father Jose
Frias Chua gratuitously or not. (In relation to the first requisite of reserva
troncal)
HELD
YES.
Ratio In Cabardo v. Villanueva, "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, "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 upon the death of his father Jose
Frias Chua
was by means of a hereditary succession and therefore gratuitous.
The obligation of paying the Standard Oil Co. of New York the amount of
P3,971.20 is
imposed upon Consolacion and Juanito not personally by the deceased Jose
in his last
will and testament but by an order of the court in the Testate Proceeding.
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, to pay
the Standard Oil Co. This does not change the gratuitous nature of the
transmission of
the property to him. This being the case the lot in question is subject to
reserva
troncal under Art, 891.

Reasoning
- The pertinent provision of reserva troncal provides:
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 belong
to the line
from which said property came.
- In order that a property may be impressed with a reservable character the
following
requisites must exist: (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.
- In this case, all of the foregoing requisites are present. Juanito died
intestate; he died
without leaving any issue; his pro-indiviso of 1/2 share of Lot No. 399 was
acquired by
his mother; Juanito who died intestate had relatives within the third degree.
Theserelatives are Ignacio and Dominador and Remidios, the supposed
legitimate children
of the deceased Lorenzo, who are the petitioners herein.

GONZALEZ v CFI OF MANILA 9

104 SCRA 161
AQUINO
NATURE
Beatriz Legarda Gonzalez appealed from the decision of the Court
of First Instance of Manila, dismissing her complaint for partition,
accounting, reconveyance and damages and holding, as not
subject to reserva troncal, the properties which her mother
Filomena Roces inherited in 1943 from Filomena Legarda
FACTS
Benito Legarda y De la Paz, the son of Benito Legarda y Tuason,
died in Manila on June 17, 1933. He was survived by his widow,
Filomena Roces, and their seven children: four daughters named
Beatriz, Rosario, Teresa and Filomena and three sons named
Benito, Alejandro and Jose.
On July 12, 1939, the real properties left by Benito Legarda y
Tuason were partitioned in three equal portions by his daughters,

Consuelo and Rita, and the heirs of his deceased son Benito
Legarda y De la Paz who were represented by Benito F. Legarda.
Filomena Legarda y Roces died intestate and without issue on
March 19, 1943. Her sole heiress was her mother, Filomena Roces
Vda. de Legarda. Mrs. Legarda executed on May 12, 1947 an
affidavit adjudicating extrajudicially to
herself the properties which she inherited from her deceased
daughter, Filomena Legarda. As a result of the affidavit of
adjudication, Filomena Roces succeeded her deceased daughter
Filomena Legarda as co-owner of the properties held proindiviso
by her other six children. Mrs. Legarda on March 6, 1953 executed
two hand-written identical documents
wherein she disposed of the properties, which she inherited from
her daughter, in favor of the children of her sons, Benito, Alejandro
and Jose (sixteen grandchildren in all).
During the period from July, 1958 to February, 1959 Mrs. Legarda
and her six
surviving children partitioned the properties consisting of the onethird share in the estate of Benito Legarda y Tuason which the
children inherited in representation of their father, Benito Legarda
y De la Paz. Mrs. Legarda died on September 22, 1967. Her will was
admitted to probate as a holographic will in the order dated July
16, 1968 of the Court of First Instance of Manila in Special
Proceeding No. 70878, Testate Estate of Filomena Roces Vda. de
Legarda.
In the testate proceeding, Beatriz Legarda Gonzalez, a daughter of
the testatrix, filed on May 20, 1968 a motion to exclude from
the inventory of her mother's estate the properties which
she inherited from her deceased daughter, Filomena, on the
ground that said properties are reservable properties which
should be inherited by Filomena Legarda's three sisters
and three brothers and not by the children of Benito,
Alejandro and Jose, all surnamed Legarda. That motion was
opposed by the administrator, Benito F. Legarda.
Without awaiting the resolution on that motion, Mrs. Gonzalez filed
on June 20, 1968 an ordinary civil action against her brothers,
sisters, nephews and nieces and her mother's estate for the
purpose of securing a declaration that the said properties are
reservable properties which Mrs. Legarda could not bequeath in
her holographic will to her grandchildren to the exclusion of her
three daughters and her three sons (See Paz vs. Madrigal, 100 Phil.
1085).
The lower court dismissed the action of Mrs. Gonzalez. I
ISSUES

1. Whether the disputed properties are reservable properties under

article 891 of the Civil Code, formerly article 811.
2. Whether Filomena Roces Vda. de Legarda could dispose of them
in her will in favor of her grandchildren to the exclusion of her six
children.
HELD
1. YES
RATIO
The properties in question were indubitably reservable properties
in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The
reservation became a certainty when at the time of her death the
reservees or relatives within the third degree of the
prepositus Filomena Legarda were living or they survived Mrs.
Legarda
REASONING
As will hereinafter be shown that is not a novel issue or a question
of first impression.
It was resolved in Florentino vs. Florentino, 40 Phil. 480. it may be
useful to make a brief discourse on the nature of reserva troncal,
also called lineal, familiar, extraordinaria o semi-troncal.
Much time, effort and energy were spent by the parties in their five
briefs in descanting on the nature of reserva troncal, which
together with the reserva viudal and reversion legal, was abolished
by the Code Commission to prevent the decedent's
estate from being entailed, to eliminate the uncertainty in
ownership caused by the reservation (which uncertainty impedes
the improvement of the reservable property) and to discourage the
confinement of property within a certain family for generations
which situation allegedly leads to economic oligarchy and is
incompatible with the socialization of ownership.
The Code Commission regarded the reservas as remnants of
feudalism which fomented agrarian unrest. Moreover, the reservas,
insofar as they penalize legitimate relationship, is considered
unjust and inequitable. However, the lawmaking body, not
agreeing entirely with the Code Commission, restored the reserva
troncal, a legal institution which, according to Manresa and
Castan Tobeas, has provoked questions and doubts that are
difficult to resolve.
Reserva troncal is provided for in article 811 of the Spanish Civil
Code, now article 891, which reads:
"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. "
IN RESERVA TRONCAL,
(1) a descendant inherited or acquired by gratuitous title property
from an ascendant or from a brother or sister;
(2) the same property is inherited by another ascendant or is
acquired by him by operation of law from the said descendant, and
(3) the said ascendant should reserve the said property for the
benefit of relatives who are within the third degree from the
deceased descendant ( prepositus) and whobelong to the line from
which the said property came.
SO, THREE TRANSMISSIONS ARE INVOLVED: that the
reservable property is no part of the estate of the reservista who
may not
dispose of them (it) by will, so long as there are reservatarios
existing (Arroyo vs. Gerona, 58 Phil. 226, 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."
Hence, upon the reservista's death, the reservatario nearest to the
prepositus becomes, "automatically and by operation of law, the
owner of the reservable property." (Cano vs. Director of Lands, 105
Phil. 1, 5.)
2. NO
RATIO
We hold that Mrs. Legarda could not convey in her holographic will
to her sixteen grandchildren the reservable properties which she
had inherited from her daughter Filomena because the reservable
properties did not form part of her estate (Cabardo
vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a
disposition mortis causa of the reservable properties as long as the
reservees survived the reservor.
As repeatedly held in the Cano and Padura cases, the reservees
inherit the reservable properties from the prepositus, not from the
reservor. Article 891 clearly indicates that the reservable properties
should be inherited by all the nearest relatives within the third
degree from the prepositus who in this case are the six children of
Mrs. Legarda. She could not select the reservees to whom the
reservable property should be given and deprive the other
reservees of their share therein.
To allow the reservor in this case to make a testamentary
disposition of the reservable properties in favor of the reservees in
the third degree and, consequently, to ignore the reservees in the

second degree would be a glaring violation of article 891. That

testamentary disposition cannot be allowed.
REASONING
We have stated earlier that this case is governed by the doctrine of
, a similar case, where it was ruled:
"Reservable property left, through a will or otherwise, by the death
of ascendant (reservista) together with his own property in favor of
another of his descendants as forced heir, forms no part of the
latter's lawful inheritance nor of the legitime, for the
reason that, as said property continued to be reservable, the heir
receiving the same as an inheritance from his ascendant has the
strict obligation of its delivery to the relatives, within the third
degree, of the predecessor in interest ( prepositus), without
prejudicing the right of the heir to an aliquot part of the property, if
he has at the same time the right of a reservatario" (reservee).
Under the rule of stare decisis et non quieta movere, we
are bound to follow in this case the doctrine of the
Florentino case. That doctrine means that as long as during the
reservor's lifetime and upon his death there are relatives within the
third degree of the prepositus, regardless of whether those
reservees are common
descendants of the reservor and the ascendant from whom the
property came, the property retains its reservable character. The
property should go to the nearest reservees. The reservor cannot,
by means of his will, choose the reservee to whom
the reservable property should be awarded.
It is contended by the appellees herein that the properties in
question are not reservable properties because only relatives
within the third degree from the paternal line have survived and
that when Mrs. Legarda willed the said properties to her
sixteen grandchildren, who are third-degree relatives of Filomena
Legarda who belong to the paternal line, the reason for the reserva
troncal has been satisfied: "to prevent persons outside a family
from securing, by some special accident of life, property that would
otherwise have remained therein."
That same contention was advanced in the Florentino case where
the reservor willed the reservable properties to her daughter, a fullblood sister of the prepositus and ignored the other six reservors,
the relatives of the half-blood of the prepositus.
In rejecting that contention, this Court held that the reservable
property bequeathed by the reservor to her daughter does not
form part of the reservor's estate nor of the daughter's estate but
should be given to all the seven reservees or nearest relatives of
the prepositus within the third degree.

This Court noted that, while it is true that by giving the reservable
property to only one reservee it did not pass into the hands of
strangers, nevertheless, it is likewise true that the heiress of the
reservor was only one of the reservees and there is no reason
founded upon law and justice why the other reservees should be
deprived of their shares in the reservable property (pp. 894-5).
Applying that doctrine to this case, it results that Mrs. Legarda
could not dispose of in her will the properties in question even if
the disposition is in favor of the relatives within the third degree
from Filomena Legarda. The said properties, by operation of article
891, should go to Mrs. Legarda's six children as reservees within
the seconddegree from Filomena Legarda.

VDA DE PEREZ VS. TOLETE

FACTS:
Dr. Jose Cunanam and wife Evelyn Perez-Cunanam, both American
citizens, executed will separately but containing almost the same
provisions. The doctors will and testament bequeathed to his wife
all the remainder of his real and personal properties at the time of
his death. His likewise states that should both of them die, it shall
be presumed that he predeceased his wife, and all estate shall be
administered and distributed in accordance with such presumption.
Evelyns will and testament contained her acknowledgement that
in case both died, it shall be presumed she pre-deceased her
husband. On January 9, 1982, the entire Cunanam family perished
when their house was burned down. Salud, mother of Evelyn filed a
petition for the probate of a wills, that were likewise admitted for
probate in the US court. On June 23, Court granted probate but
Cunanam heirs opposed andpetitioned the court to nullify
proceedings, disqualify petitioner as administratix. Judge recalled
the appointment of petitioner as administratix and disallowed the
probate of the 2 wills.
ISSUE:
Whether or not the 2 wills may be probated at the 2 wills may be
probated at the same time in a court.
HELD:
Since the wills of the Cunanam spouse were admitted for probate,
as American citizens, NCC provision was satisfied: Art. 816. The will
of an alien who is abroad produce effect in the Philippines if made
with the formalities by the law of the place in which he resides, or
according in his country, or in conformity with those which this
Codeprescribes. What the law prohibits is the making of joint wills
either for the testators reciprocal benefit or for the benefit of a
third person. The Cunanam spouses executed separate will. Since

the wills contain essentially the same provisions and pertain to

property which in all probability are conjugal in nature, practical
considerations dictate their joint probate we will always strive to
settle the entire controversy in a single proceeding leaving no root
or branch to bear the seeds of future litigation
Ajero vs. CA
G.R. No. 106720September 15, 1994
FACTS:
Petitioner submitted for probate the holographic will of the late
Annie Sand who died on November 25,1982. Private respondent
opposed the probate because the purported will was not Annies
hand writing; it contained alterations and corrections which were
not duly signed by decedent and it was procured by petitioners
through pressure and undue influence. The lower court allowed the
will for probate as 3 witnesses were presented who testified on the
authenticity and that the latter is of sound mind.
ISSUE:
Whether or not the holographic will executed by Annie Sand
executed in the formalities prescribed by law.
RULING:
What assures authenticity of holographic will is the requirement
that they totally autographic or hand-written by the testator
himself, as provided in Art 810NCC:
A person may execute a holographic will which must be entirely
written, dated and signed by 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. Failure to strictly observe other formalities will
not result in the disallowance of holographic will that is
unquestionably hand written by the testator. A holographic will
may still be admitted for probate not with standing non-compliance
with the provisions of 814 NCC
Ajero vs. CA
Requirements under Art 813 and 814 on the authentication of
changes and signing and dating of dispositions refer only to the
validity of the dispositions, but not its probate. If the testator fails
to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not
render the whole testament void.

KALAW v RELOVA
132 SCRA 237
MELENCIO-HERRERA; September 28, 1984
FACTS
- 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.
- After trial, respondent Judge denied probate in an Order, dated
September 3, 197 3, citing that the NBI reported that the
handwriting, the signature, the insertions and/or additions and the
initial were made by one and the same person. Consequently, the
will was in the handwriting of the decedent, Natividad K. Kalaw.
However the Court finds, that the provision of Article 814 of the
Civil Code is applicable to Exhibit "C".
Finding the insertions, alterations and/or additions in the not to be
authenticated by the full signature of the testatrix Natividad K.
Kalaw, the Court will deny the admission to probate.
- From that Order, GREGORIO moved for reconsideration arguing
that since the alterations and/or insertions were the testatrix, the
denial to probate of her holographic Will would be contrary to her
right of testamentary disposition.
Reconsideration was denied in an Order, dated November 2, 1973,
on the ground that Article 814 of the Civil Code being clear and
explicit 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
ISSUE

WON 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
HELD
- Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will litem not
been noted under his signature... the Will is not thereby invalidated
as a whole, but at most only as respects the particular words
erased, corrected or interlined.
- However, when as in this case, the holographic Will in dispute had
only one substantial provision, which was altered by substituting
the original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator,
the effect must be that the entire Will is voided or revoked for the
simple reason that nothing remains in the Will after that which
could remain valid. To state that the Will as first written should be
given efficacy is to disregard the seeming change of mind of the
testatrix. But that change of mind can neither be given effect
because she failed to authenticate it in the manner required by law
by affixing her full signature.
MOLO VS. MOLO CASES FOR ARTS. 828-837
FACTS: Mariano Molo died and was survived by his herein petitioner
wife and his herein oppositors nieces and nephews. He left two
wills one dated 1918 and the other 1939. The second will contains
a clause which expressly revokes the former will. Upon death, his
wife filed a petition for probate of the 1939 will which was later on
admitted. However, oppositors eventually filed a petition which
resulted to the denial of probate of the said will. Petitioner wife
then filed a petition for probate of the 1918 will, which was likewise
denied by the oppositors in this case. 1. ISSUE: WON petitioner
voluntarily and deliberately frustrated the probate of the 1939 will.
RULING: SC held that she did not because if it was indeed her
intention, she could have accomplished her desire by merely
suppressing the will or tearing or destroying it, and then take steps
in leading to the probate of the 1918 will. Had the oppositors in this
case not filed an opposition and had limited their objection to the
intrinsic validity of the will, their plan to defeat the will and secure
the intestacy of the deceased would have been accomplished. If
the said will was denied probate, it is due to oppositors fault and is
unfair to impute bad faith to petitioner simply because she exerted
effort to protect her own interest and prevent the intestacy of the
deceased.
2. ISSUE:

WON, notwithstanding the disallowance of the 1939 will, the

revocatory clause is valid and still nullifies the 1918 will.
RULING:
SC held that the clause is likewise void because the Court held in
Samson v. Naval that it cannot produce the effect of annulling the
previous will since said revocatory clause is void. If it was really the
intention of the deceased to revoke the first will, with the
assumption that he in fact destroyed the original copy of the 1918
will since it cannot be found at present, he should also destroyed
the duplicate copy of the said will which he had given to his wife.
But he did not so. Hence, it is possible that because of the long
lapse of 21 years since the 1st will was executed, the original will
had been misplaced or lost and forgetting there was a copy, he
deemed it wise to execute another. Granting that he did destroy
the 1st will, the 1918 will can still be admitted under the principle
of dependent relative revocation, which is predicated on the
theory that the testator did not intend to die intestate. The
doctrine of dependent relative revocation is established wherethe
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 fails and the
original will remains in full force.
Molo vs. Molo
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 formal requirements as to the making of wills,
cannot produce the effect of annulling the previous will, inasmuch
as said revocatory clause is void.
Doctrine of Dependent Relative Revocation. It is the intention of
the testator that the revocation of previous will is dependent upon
the validity of a subsequent will. 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.
The operation of the doctrine depends upon the intention of the
testator at the time of the revocation of the first will.

REVOCATION OF WILLS:
GAGO v MAMUYAC
49 Phil 902
JOHNSON; Jan 29, 1927
FACTS
- Miguel Mamuyac executed a last will and testament on July 27,
1918 (first will). On Jan, 1922, Francisco Gago presented a petition
in the CFI of La Union for the probation of that will. This was
opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana
Bauzon, and Catalina Mamuyac. The petition for probation was
denied on the ground that the deceased had executed a new will
and testament on April 16, 1919 (second
will). Miguel Mamuyac died on Jan 2, 1922.
- The present petition, filed on Feb 21, 1925, is intended to secure
the probation of the second will. 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.
- The CFI denied the probation of the second will, upon the ground
that the same had been cancelled and revoked in the year 1920.
- Gago contends that the lower court committed an error in not
finding from the evidence that the will in question had been
executed with all the formalities required by the law; that the same
had been revoked and cancelled in 1920 before his death; that the
said will was a mere carbon copy and that the oppositors were not
stopped from alleging that fact.
ISSUE
WON the CFI erred in not granting the probation of Miguel
Mamuyacs second will
HELD
NO
- As to the cancellation of the will, there is positive proof, not
denied, which was accepted by the lower court, that will in
question had been cancelled in 1920. The law does not require any
evidence of the revocation or cancellation of a will to be
preserved. 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 a proceeding to probate a will the burden of proofs is upon the
proponent clearly to establish not only its execution but its
existence. Having proved its execution by the proponents, the
burden is on the contestant to show that it has been revoked. In a
great majority of instances in which wills are destroyed for the
purpose of revoking them there is no witness to the act of
cancellation or destruction and all evidence of its cancellation
perishes with the testator. Copies of wills should be admitted by
the courts with great caution. When it is proven, however, by
proper testimony that a will was executed in duplicate and each
copy was executed with all the formalities and requirements of the
law, then the duplicate may be admitted in evidence when it is
made to appear that the original has been lost and was not
cancelled or destroyed by the testator. (Borromeo vs. Casquijo)
PROBATE: ALLOWANCE AND DISALLOWANCE OF A WILLS

BAUTISTA

TEOTICO v DEL VAL

13 SCRA 406

NATURE
Appeal from the Manila CFI decision
FACTS
- Maria Mortera Vda de Aguirre on May 17, 1951 executed a will written in
Spanish
making many legacies and devises including Pesos 20,000 to Rene Teotico
who was
married to testatrixs niece, Josefina Mortera. Josefina was instituted as the
sole and
universal heir to all the remainder of the properties not otherwise disposed
of in the
will. The testatrix died on July 14, 1955 and a petition for the probate was
file before

the Manila CFI on July 17, 1955.

- Ana del Val Chan, claiming to be an adopted daughter of Francisca
Mortera, a
deceased sister of the testatrix, and an acknowledged natural child of Jose
Mortera, a
deceased brother of the same testatrix, filed an opposition to the probate
alleging that
the will was not executed as required by law, that the testatrix was
physically and
mentally incapable to execute the will at the time of its execution, and that
the will
was executed under duress, threat or influence of fear. The lower court
allowed Ana
del Val Chans opposition despite a motion to have said opposition
dismissed on the
ground that Ana had no legal personality to intervene.
- Ana amended her opposition by alleging that the will is inoperative with
regard the
share of Rene Teotico because he was the physician who took care of the
testatrix
during her last illness.
- 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.
- Hence this appeal
ISSUE/S
1. WON Ana Del Val Chan has the right to intervene
2. WON the will has been duly admitted to probate3. WON probate court
committed an error on passing on the intrinsic validity of the
provisions of the will
HELD
1. No. 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 coowner 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.
In the supposition that the will is denied probate, would the oppositor
acquire any
interest in any portion of the estate left by the testatrix? She would acquire
such right
only if she were a legal heir of the deceased, but she is not under our Civil
Code. It is
true that oppositor claims to be an acknowledged natural child of Jose
Mortera, a
deceased brother of the deceased, and also an adopted daughter of
Francisca
Mortera, a deceased sister of the testatrix, but such claim cannot give her
any comfort
for, even if it be true, the law does not give her any right to succeed
to the
estate of the deceased sister of both Jose Mortera and Francisca
Mortera.
And this is so because being an illegitimate child she is prohibited
by law
from succeeding to the legitimate relatives of her natural father.
Thus,
Article 992 of our Civil Code provides: "An illegitimate child has no
right to
inherit ab intestato from the legitimate children and relatives of
his father
or mother.
2 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 he
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.
2. Yes. The claim of the oppositor that the testatrix was of unsound mind
when she
executed the will was belied by the testimonies of the three people who
witnessed the
signing of the will. The claim that Teotico exerted improper pressure and
undue

influence over the testatrix to overpower and subjugate her mind to

destroy her free
agency and make her express the will of another rather than her own was
not proved.
3. Yes. "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
vali

GALLANOSA v ARCANGEL
83 SCRA 676
AQUINO; June 21, 1978
NATURE
Special civil action of certiorari
FACTS
- Florentino Hitosis executed a will in the Bicol dialect on June 19,
1938 when he was 81 yo. He died on May 26, 1939 at Irosin,
Sorsogon. A childless widower, he was survived by his brother,
Leon. On June 24, 1939 a petition for the probate of his will was
filed in CFI Sorsogon. The notice of hearing was duly published in
that will.
Florentino bequeathed his share in the conjugal estate to his
second wife, Tecla Dollentas, and, should Tecla predecease him, as
was the case, his 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 to his protege Adolfo Fortajada, a minor.
Opposition to the probate of the will was registered by the
testator's legal heirs, namely, Leon and his nephews and nieces.

After a hearing, wherein the oppositors did not present any

evidence, Judge Rivera, in his decision of October 27, 1939,
admitted the will to probate and appointed Gallanosa as executor.
Judge Rivera specifically found that the testator executed his last
will "enjoying good health and mental faculties and not acting
under threat, fraud or undue influence "
[1939 DECREE OF PROBATE]. The testator's legal heirs did not
appeal from the decree of probate (1939) and from the order of
partition and distribution (1941) of 61 parcels of land by Gallanosa
spouses and Fortajada.
- On February 20, 1952, Leon Hitosis and nephews and nieces
instituted an action in CFI Sorsogon against Pedro Gallanosa for the
recovery of the said 61 parcels of land. They alleged that they had
been in continuous possession of those lands en concepto de
dueo 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, be restored to the possession
thereof and also claimed damages (Civil Case No. 696). [1952
COMPAINT]
- CFI: Dismissed their opposition and Ordered the probate of his
will because the oppositors did not file any appeal within the period
fixed by law, despite the fact that they were duly thereof, so that
the said decision had become final and it now
constitutes a bar to any action that the plaintiffs may institute for
the purpose of seeking a redetermination of their right to inherit
the properties of the late Florentino Hitosis. In other words, the
said decision of this Court in 1939, which they intervened as
parties oppositors, constitutes a final judicial determination of the
issue that they have no legal rights to succeed to any of the
properties of the late Florentino Hitosis;
consequently, their present claim to the ownership and possession
of the 61 parcels of land in question is without any legal merit or
basis. [1952 DISMISSAL OF
COMPLAINT] 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 61 parcels of land. They
prayed for the appointment of a receiver. [1967 COMPLAINT]
ISSUE
WON allowance of will (prayed for in 1967 complaint) is valid given
the 1939 decree of probate and the 1952 order of dismissal in Civil
Case No. 696
HELD
NO

Ratio After the finality of the allowance of a will, the issue as to

the voluntariness of its execution cannot be raised anymore
(Santos vs. De Buenaventura).
Reasoning
- The 1939 decree of probate is conclusive as to the due execution
or formal validity of the will (Sec. 625, Act 190; sec. 1, Rule 76, now
sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).
That means that the 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. (3 Moran's Comments on the Rules
of Court, 1970 Edition, p. 395; Manahan vs. Manahan).
-Austria vs. Ventenilla > a "petition for annulment of a will" was
not entertained after the decree of probate had become final.
"Wills; Probate; Alleged Fraudulent Will; Appeal. V. died. His will was
admitted to probate without objection. No appeal was taken from
said order. It was admitted that due and legal notice had been
given to all parties. Fifteen months after the date of said order, a
motion was presented in the lower court to have said will declared
null and void, for the reason that fraud had been practiced upon
the deceased in the making of his will.
"Held: That under section 625 of Act No. 190, the only time given
parties who are displeased with the order admitting to probate a
will, for an appeal is the time given for appeals in ordinary actions;
but without deciding whether or not an order
admitting a will to probate will be opened for fraud, after the time
allowed for an appeal has expired, when no appeal is taken from
an order probating a will, the heirs can not, in subsequent litigation
in the same proceedings, raise questions
relating to its due execution. The probate of a will is conclusive as
to its due execution and as to the testamentary capacity of the
testator." (See Austria vs. Heirs of Ventenilla, 99 Phil. 1069).
INSTITUTION OF HEIRS:

AZNAR v DUNCAN
17 SCRA 590
MAKALINTAL; June 30, 1966
FACTS

- 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 CFI Davao. There, the court declared that Maria
Helen Christensen Garcia (Helen Garcia) was a natural child of the
deceased. The declaration was appealed to SC and was affirmed
- In another incident relative to the estates partition, the TC 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 from the order of approval, and SC 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.
- CFI Davao approved the project of partition submitted by the executor
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 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.
This was based on the proposition that since Helen Garcia had been
preterited in the will, the institution of Lucy Duncan as heir was annulled.
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. Lucy Duncan now appeals.
- The will contains, among others, the following clauses which are pertinent
to the issue in this case:
3. I declare ... that I have but ONE child, named MARIA LUCY CHRISTENSEN
(Now Mrs. Bernard Daney), who was born in the Philippines about 28 years
ago, who is now residing at No. 665 Rodger Young Village, Los Angeles,
California, U.S.A.
4. I further declare that I now have no living ascendants, and no
descendants except my above-named daughter, MARIA LUCY CHRISTENSEN
DANEY.
xxxxxxxxx
7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now
married to Eduardo Garcia, about 18 years of age and who, notwithstanding
the fact that she was baptized Christensen, is not in any way related to me,
nor has she been at any time adopted by me, and who, from all information
I have now resides in Egpit, Digos, Davao, Philippines, the sum of
P3,600.00, the same to be deposited in trust for the said Maria Helen
Christensen with PNB Davao Branch, and paid to her at the rate of P100.00
per month until the principal thereof as well as any interest which may
have accrued thereon, is exhausted.
xxxxxxxxx
12. I hereby give, devise and bequeath, unto my well-beloved daughter, the
said MARIA LUCY CHRISTENSEN DANEY, all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or
mixed, of whatsoever kind or character, and wheresoever situated, of which

I may be possessed at my death and which may have come to me from any
source whatsoever, during her lifetime
- The TC 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: 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.
- 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 than
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:
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 devices and legacies and
other testamentary dispositions shall be valid to such extent as will not
impair the legitimate.
- Thus, according to appellant, under both Article 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.
ISSUE/S
1. WON the estate, after deducting the legacies, should be divided in equal
shares [or should the inheritance of Lucy Duncan as instituted heir be
merely reduced to the extent necessary to cover the legitime of Helen
Garcia, equivalent to 1/4 of the entire estate]
HELD
1. NO
Ratio Neri, et al. v. Akutin, cited by appellees in support of their theory of
preterition 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 his first
marriage, he left nothing to them or, at least, some of them." In the case at
bar the testator did not entirely omit oppositorappellee
Helen Garcia, but left her a legacy of P3,600.00.
Reasoning 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?
Manresa cites particularly 3 decisions of the SC of Spain. In each case 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 legitime be completed.
The foregoing solution is indeed more in consonance with the expressed
wishes 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 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. 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 thereofsubsequently
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.

NUGUID v NUGUID
17 SCRA 449
Sanchez J; June23, 1966
FACTS
-Rosario Nuguid died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her
legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six
brothers and sisters
-Petitioner Remedios Nuguid, one of the brothers filed 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, parents Felix and 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.
ISSUE
WON the will is void due to preterition
HELD

YES
-Will stated Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and
memory, having amassed a certain amount of property, do hereby
give, devise, and bequeath all of the property which I may have
when I die to my beloved sister Remedios Nuguid, age 34, residing
with me at 38-B Iriga, Q.C. In witness whereof, I have signed my
name this seventh day of November, nineteen hundred and fiftyone. (Sgd.) Illegible T/ ROSARIO NUGUID
-the law in the CC provides: ART. 854. The preterition or omission of
one, some, or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after the death
of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious. ...
-Definition of ANNUL:. To reduce to nothing; annihilate; obliterate;
to make void or of no effect; to nullify; to abolish; to do away with.
Ex parte Mitchell
-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 The onesentence will here institutes
petitioner as the sole, universal heir ? nothing more. No specific
legacies or bequests are therein provided for. It is in this posture
that we say that the nullity is complete.
-Remedios contends that an ineffective disinheritance was made
instead of preterition and thus Art. 854 does not apply. This
contention was held invalid by the court.
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 disinheritance must expressly be stated. In this case, no
such express inheritance was mentioned
-effect of preterition v 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
disinheritance the nullity is limited to that portion of the estate of
which the disinherited heirs have been illegally deprived

SOLANO v CA
136 SCRA 122
MELENCIO HERRERA; November 29, 1983
NATURE
Petition for Review on certiorari
FACTS
- Bienvenido Garcia and Emeteria Garcia filed an action for
recognition against Meliton Solano, claiming to be illegitimate
children. Solano died during the pendenct of the suit. Zonia Solano
was ordered substituted since she was the only surviving heir
mentioned in his will.
- The Garcias filed their "Reply to ZONIA's Appearance and
Supplemental Cause of Action" impugning the recognition of Zonia
as an acknowledged natural child with the prayer that she be
declared instead, like them, as an adulterous child.
- The trial court ruled that the Garcias and Zonia were illegitimate
children. The CA affirmed. Both courts found the following facts:
Solano married Riosa. The latter died. On a world tour, he met
Gorand. He married her. However, she left him in 1929. In 1930, he
had relations with Juana Garcia. The Garcias were then born out of
the affair. Though documents do not name him as father, Solano
recognized them as shown by his acts of support. In 1935, he lived
with Trinidad Tuagnon. ZONIA Ana Tuagnon was born. In her birth
certificate, it was indicated that she was illegitimate. During the
Jap occupation, Solano was able to obtain divorce from Gorand.
Later, Solano and Trinidad Tuagnon executed an "Escritura de
Reconocimiento de Unit Hija Natural" acknowledging ZONIA as a
"natural child" and giving her the right to use the name ZONIA Ana
Solano y Tuagnon. In 1969, Solano executed a will, making Zonia
as his universal heir, except for certain parcels of land wherein
Trinidad was granted usufructuary rights.
ISSUE/S
1. WON the CA and TC acted without jurisdiction or in excess of
jurisdiction in declaring substitute defendant Zonia Ana Solano an
illegitimate child of the late Solano in an action where private
respondents, sought recognition as natural children of Solano
2. WON the CA and TC acted without jurisdiction or in excess of
jurisdiction 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
HELD

1. NO
Reasoning
-In her "Appearance of Substitute Defendant Zonia Ana T. Solano ...
Sole and Universal Heir", ZONIA specifically prayed that she be
allowed to assume her duties as executrix
and administratrix of the probated will. In other words, ZONIA did
not only rely upon SOLANO's Answer already of record but asserted
new rights in her capacity as sole and universal heir, "executrix
and administratrix, "and challenged the right of the GARCIAS to
recognition. Thus, she was not defending the case as a mere
representative of the deceased but asserted rights and defenses in
her own personal capacity.
- During the trial, the Garcias presented their evidence to support
their claim. Zonia did not object. She even presented her own
evidence to prove she was a legitimate child. Thus, as raised by
the parties in their own pleadings and pursuant to their respective
evidence during the trial, the litigation was converted into a
contest between the GARCIAS and ZONIA precisely as to their
correct status as heirs and their respective rights as such.
2. No.
Reasoning
-The general rule would be that the court would have no
jurisdiction. However, there is a peculiar situation in the case. First,
Solano himself instituted the petition for probate of the Will during
his lifetime. 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. Second, the Trial Court
ordered the impleading of the estate of SOLANO and proceeded on
that basis. In effect, therefore, the two cases were consolidated.
Third, it is settled that the allowance of a Will is conclusive only as
to its due execution. A probate decree is not concerned with the
intrinsic validity or legality of the provisions of the Will.
- The TC then had jurisdiction to declare Zonia and the Garcias
illegitimate. It found that the acknowledgement of Zonia as a
natural child is erroneous since Solano was still married to Gorand.
The Garcias are compulsory heirs, and as a result of such
preterition the institution of ZONIA as sole heir by SOLANO is null
and void pursuant to Article 854.
- The TC had jurisdiction in resolving the issue of the hereditary
shares. However, the the pretention of the GARCIAS should annul
the institution of ZONIA as heir only insofar as the legitime of the
omitted heirs is impaired
- 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 pretention, 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. In contrast,
in the case at bar, there is a specific bequest or legacy so that
Article 854 of the Civil Code, supra, applies merely annulling the
"institution of heir.
- Lastly, it should be noted that Sonia only questioned the courts
jurisdiction in the SC. She is already estopped.
ACAIN v CA (FERNANDEZ & DIONGSON)
155 SCRA 100
PARAS; October 27, 1997
NATURE
This is a petition for review on certiorari of the decision of
respondent Court of
Appeals.
FACTS
- May 29, 1984: petitioner Constantino Acain filed in the RTC of
Cebu City a petition for the probate of the will of the late Nemesio
Acain and for the issuance of letters testamentary, on the premise
Nemesio died leaving a will in which Constantino and his siblings
were instituted as heirs (the will was in Bisaya, with English
translation).
- The will contained provisions on burial rites, payment of debts,
and the appointment of a certain Atty. Ignacio G. Villagonzalo as
the executor of the testament. On the disposition of property it
stated:
All my shares that I may receive from our properties, house, lands
and money which I earned jointly with my wife Rosa Diongson shall
be given by me to my brother SEGUNDO ACAIN, Filipino, widower,
of legal age and presently residing at
351C Sanciangko, Street, Cebu City. In case my brother
Segundo Acain predeceases me, all which constitute my
share shall be given by me to his children, namely: Anita,
Constantino, Concepcion, Quirina, Laura, Flores, Antonio
and Jose, all surnamed Acain.
- Segundo pre-deceased Nemesio. It is the children of Segundo who
are claiming to be heirs, with Constantino as the petitioner. The
oppositors are respondents Virginia A. Fernandez, Nemesios
legally adopted daughter, and his widow Rosa Diongson
(oppositors filed a motion to dismiss).

- CA granted respondents petition and ordered the TC to dismiss

the petition for the probate of the will of Nemesio.
Petitioners Claim
- They are the instituted heirs of Nemesio Acain.
- The will of Nemesio is valid and must therefore, be admitted to
probate.
Respondents Comments
- Petitioner has no legal capacity;
- Petitioner is merely a universal heir;
- The adopted daughter and the widow have been preterited.
ISSUE(S)
1. WON private respondents have been preterited (therefore
opening the inheritance to them). (YES)
2. WON Constantino has legal standing to petition for probate. (NO)
HELD
1. YES
Ratio Preterition annuls the institution of an heir and annulment
throws open to intestate succession the entire inheritance (Art.
854, Civil Code). The nullification of such institution of universal
heirswithout any other testamentary disposition in the will
amounts to a declaration that nothing at all was written.
Reasoning
Civil Code
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.
- The requisites of preterition are:
1) The heir omitted is a forced heir (in the direct line);
2) The omission is by mistake or thru an oversight;
3) The omission is complete so that the forced heir received
nothing in the will.
- Insofar as the widow is concerned, Art. 854 of the Civil Code may
not apply as she does not ascend or descend from the testator,
although she is a compulsory heirPreterition applies only to

Fernandez, as her adoption by the testator was not questioned by

Constantino.
- Under 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.
- 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. Art. 854 of the Civil Code is
clear as to this point.
2. NO.
Ratio 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 and an interested party is a one who
would be benefited by the estate such as an heir or one who has a
claim against the estate like a creditor.
Reasoning
- Constantino is not the appointed executor, neither a devisee nor
a legatee there being no mention in the testamentary disposition
of any gift of an individual item of personal or real property he is
called upon to receive.
- Intestacy having resulted from the preterition of respondent
adopted child and the universal institution of heirs, petitioner is in
effect not an heir of the testator. He has no legal standing to
petition for the probate of the will left by the deceased.
On Certiorari and prohibition as proper remedy for
Respondents:
- As a general rule certiorari cannot be a substitute for appeal,
except when the questioned order is an oppressive exercise of
judicial authority. The probate court's authority is limited only to
the extrinsic validity of the will, the due execution thereof,
the testator's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of
the will normally comes only after the Court has declared that the
will has been duly authenticated. Said court at this stage of the
proceedings is not called upon to rule on the intrinsic validity or
efficacy of the provisions of the will.

- However, under exceptional circumstances, the probate court is

not powerless to do what the situation constrains it to do and pass
upon certain provisions of the will.
- The TC 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. The remedies
of certiorari and prohibition were properly availed of by private
respondents.
- 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.
MELENCIO-HERRERA, Concurring:

- Preterition in this case was by mistake or inadvertence. An

important distinction has to be made as to whether the omission of
a forced heir in the Will of a testator is by mistake or inadvertence,
or voluntary or intentional. If by mistake or inadvertence, there is
true preterition and total intestacy results.
- If the omission is intentional, the effect would be a defective
disinheritance. TOLENTINO: Preterition is presumed to be only an
involuntary omission; that is, that if the testator had known of the
existence of the compulsory heir at the time of the
execution of the win, he would have instituted such heir. On the
other hand, if the testator attempts to disinherit a compulsory heir,
the presumption of the law is that he wants such heir to receive as
little as possible from his estate.