G.R. No. L-20374 October 11, 1923 (Sgd.
) "MAXIMO VERGARA SOTERO DUMAUAL MARCOS DE LOS SANTOS
In re of Dolores Coronel, deceased. LORENZO PECSON, applicant-appellee,
vs. AGUSTIN CORONEL, ET AL., opponents-appellants.
ROMUALDEZ, J.:
On November 28, 1922, the Court of First Instance of Pampanga probated as the last will and testament of Dolores
Coronel, the document Exhibit A, which translated is as follows:
In the name of God, Amen:
I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the full exercise of my
mental faculties, do hereby make my last will and testament, and revoke all former wills by me executed.
I direct and order that my body be buried in conformity with my social standing.
That having no forced heirs, I will all my properties, both movable and immovable, to my nephew, Lorenzo
Pecson, who is married to my niece Angela Coronel, in consideration of the good services with he has
rendered, and is rendering to me with good will and disinterestedness and to my full satisfaction.
I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in
this my will, without bond. Should he not be able to discharge his duties as such executor for any reason
whatsoever, I name and appoint as substitute executor my grandson Victor Pecson, a native and resident
of the town of Betis, without requiring him to give bond. 1awph!l.net
All my real and paraphernal property as well as my credits for I declare that I have no debts, are specified
in an inventory.
In testimony whereof and as I do not know how to write my name, I have requested Vicente J. Francisco
to write my name at the foot hereof and on the left margin of each of its sheet before me and all the
undersigned witnesses this July 1, 1918.
VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel
The foregoing document was executed and declared by Dolores Coronel to be her last will and testament
in our presence, and as the testatrix does not know how to write her name, she requested Vicente J.
Francisco to sign her name under her express direction in our presence, at the foot, and on the left margin
of each and every sheet, hereof. In testimony whereof, each of us signed these presents in the presence
of others and of the testatrix at the foot hereof and on the margin of each and everyone of the two sheets
of which this document is composed, which are numbered "one" and "two" on the upper part of the face
thereof.
MARIANO L. CRISOSTOMO PABLO BARTOLOME MARCOS DE LA CRUZ
DAMIAN CRISOSTOMO
On the left margin of the two sheets of the will the following signatures also appear:
Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel, M. Vergara, Pablo Bartolome,
Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos de los Santos .
The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel, who is a niece of the
deceased Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow of the deceased Macario
Gozum, in her own behalf and that of her three minor children, Hilarion Coronel, Geronimo Coronel, Maria Coronel
and her husband Eladio Gongco, Juana Bituin, widow of the deceased Hipolito Coronel, in her own behalf and that of
her three children, Generosa, Maria, and Jose, all minors, Rosario Coronel, Agustin Coronel, Filomeno Coronel,
Casimiro Coronel, Alejo Coronel, Maria Coronel, Severina Coronel, Serapia Coronel, Maria Juana de Ocampo, widow
of the deceased Manuel Coronel, Dionisia Coronel, and her husband Pantaleon Gunlao.
The probate of this will is impugned on the following grounds: ( a) That the proof does not that the document Exhibit
A above copied contains the last will of Dolores Coronel, and ( b) that the attestation clause is not in accordance with
the provisions of section 618 of the Code of Civil Procedure, as amended by Act No. 2645.
These are the two principal questions which are debated in this case and which we will now examine separately.
As to the first, which is the one raised in the first assignment of error, the appellants argue: First, that it was
improbable and exceptional that Dolores Coronel should dispose of her estate, as set forth in the document Exhibit
A, her true being that the same be distributed among her blood relatives; and second, that if such will not expressed
in fact, it was due to extraneous illegal influence.
Let us examine the first point.
The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not natural nor usual
that she should completely exclude her blood relatives from her vast estate, in order to will the same to one who is
only a relative by affinity, there appearing no sufficient motive for such exclusion, inasmuch as until the death of
Dolores Coronel, she maintained very cordial relations with the aforesaid relatives who had helped her in the
management and direction of her lands. It appears, however, from the testimony of Attorney Francisco (page 71,
transcript of the stenographic notes) that Dolores Coronel revealed to him her suspicion against some of her
nephews as having been accomplices in a robbery of which she had been a victim.
As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the opponents admit that he rendered
them at least from the year 1914, although there is proof showing that he rendered such services long before that
time.
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The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of
relative one's estate an exceptional case. It is true that ties of relationship in the Philippines are very strong, but we
understand that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's
estate by will when there are no forced heirs is rendered sacred by the civil Code in force in the Philippines since
1889. It is so provided in the first paragraph of article in the following terms:
Any person who was no forced heirs may dispose by will of all his property or any part of it in favor of any
person qualified to acquire it.
Even ignoring the precedents of this legal precept, the Code embodying it has been in force in the Philippines for
more than a quarter of a century, and for this reason it is not tenable to say that the excercise of the liberty thereby
granted is necessarily exceptional, where it is not shown that the inhabitants of this country whose customs must
have been take into consideration by the legislator in adopting this legal precept, are averse to such a liberty.
As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of the moment. The
proof adduced by this appelle, although contradicted, shows by a preponderance of evidence that besides the
services which the opponents admit had been rendered by him to Dolores Coronel since the year 1914, he had also
rendered services prior to that time and was the administrator and manager of the affairs of said Dolores in the last
years of her life. And that this was not a whim of the moment is shown by the fact that six years before the
execution of the will in question, said Lorenzo Pecson was named and appointed by Dolores Coronel as her sole heir
in the document Exhibit B, which, translated, is as follows:
1. That my present property was acquired by me by inheritance from my parents, but a great part thereof
was acquired by me by my own efforts and exertions;
2. That I have made no inventory of my properties, but they can be seen in the title deeds in my
possession and in the declarations of ownership;
3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known resident of the town, my heir
to succeed to all my properties;
4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default, Victor Pecson, a resident
of the same town;
5. That as to my burial and other things connected with the eternal rest of my soul, I leave them to the
sound direction of the aforesaid Lorenzo Pecson;
6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town, to write this
will in accordance with my wishes and precise instructions.
In testimony whereof I had the said Martin Pangilinan write my name and surname, and affixed my mark
between my name and surname, and don Francisco Dumaual, Don Mariano Sunglao, Don Sotero Dumaual,
Don Marcos de la Cruz and Don Martin Pangilinan signed as witnesses, they having been present at the
beginning of, during, and after, the execution of this my last will.
(Sgd.) "DOLORES CORONEL
Witnesses:
(Sgd.) "MARIANO SUNGLAO
MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"
The appellants find in the testament Exhibit B something to support their contention that the intention of Dolores
Coronel was to institute the said Pecson not as sole beneficiary, but simply as executor and distributor of all her
estate among her heirs, for while Lorenzo Pecson's contention that he was appointed sold beneficiary is based on
the fact that he enjoyed the confidence of Dolores Coronel in 1918 and administered all her property, he did not
exclusively have this confidence and administration in the year 1912. Although such administration and confidence
were enjoyed by Pecson always jointly with others and never exclusively, this fact does not show that the will of the
testatrix was to appoint Pecson only as executor and distributor of her estate among the heirs, nor does it prevent
her, the testatrix, from instituting him in 1912 or 1918 as sole beneficiary; nor does it constitute, lastly, a test for
determining whether or not such institution in favor of Pecson was the true will of the testatrix.
We find, therefore, nothing strange in the preterition made by Dolores Coronel of her blood relatives, nor in the
designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although the institution of the beneficiary here
would not seem the most usual and customary, still this would not be null per se.
In the absence of any statutory restriction every person possesses absolute dominion over his property,
and may bestow it upon whomsoever he pleases without regard to natural or legal claim upon his bounty.
If the testator possesses the requisite capacity to make a will, and the disposition of his property is not
affected by fraud of undue influence, the will is not rendered invalid by the fact that it is unnatural,
unreasonable, or unjust. Nothing can prevent the testator from making a will as eccentric, as injudicious,
or as unjust as caprice, frivolity, or revenge can dictate. However, as has already been shown, the
unreasonable or unjustice of a will may be considered on the question of testamentary capacity. (40 Cyc.,
1079.)
The testamentary capacity of Dolores Coronel is not disputed in this case.
Passing to the second question, to wit, whether or not the true last will of Dolores Coronel was expressed in the
testament Exhibit A, we will begin with expounding how the idea of making the aforesaid will here controverted was
borne and carried out.
About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney Francisco who was then her legal
adviser and who, considering that in order to make the expression of her last will more legally valid, though it
necessary that the statement be prepared in conformity with the laws in force at time of the death of the testatrix,
and observing that the will Exhibit B lacked the extrinsic formalities required by Act No. 2645 enacted after its
execution, advised Dolores Coronel that the will be remade. She followed the advice, and Attorney Francisco, after
receiving her instructions, drew the will Exhibit A in accordance therewith, and brought it to the house of Dolores
Coronel for its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the witnesses and asked her whether
the will was in accordance with her wishes. Dolores Coronel answer that it was, and requested her attorney, Mr.
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Francisco, to sign the will for her, which the attorney accordingly did in the presence of the witnesses, who in turn
signed it before the testatrix and in the presence of each other.
Upon the filing of the motion for a rehearing on the first order allowing the probate of the will, the opponents
presented an affidavit of Pablo Bartolome to the effect that, following instructions of Lorenzo Pecson, he had
informed the testatrix that the contents of the will were that she entrusted Pecson with the distribution of all her
property among the relatives of the said Dolores. But during the new trial Pablo Bartolome, in spite of being present
in the court room on the day of the trial, was not introduced as a witness, without such an omission having been
satisfactorily accounted for.
While it is true that the petitioner was bound to present Pablo Bartolome, being one of the witnesses who signed the
will, at the second hearing when the probate was controverted, yet we cannot consider this point against the
appellee for this was not raised in any of the assignments of error made by the appellants. (Art. 20, Rules of the
Supreme Court.)
On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to prove before the court the
statement by him in his affidavit, since it was their duty to prove what they alleged, which was that Dolores Coronel
had not understood the true contents of the will Exhibit A. Having suppressed, without explanation, the testimony of
Pablo Bartolome, the presumption is against the opponents and that is, that such a testimony would have been
adverse had it been produced at the hearing of the case before the court. (Sec 334, subsec. 5, Code of Civil
Procedure.)
The opponents call our attention to the fourth clause of the document which says: "I name and appoint my aforesaid
nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my will, without bond. Should he not be
able to discharge his duties as such executor for any reason whatsoever, I name and appoint as a substitute
executor my grandson Victor Pecson, resident of the town of Betis, without requiring him to give bond," and contend
that this clause is repugnant to the institution of Lorenzo Pecson as sole beneficiary of all her estate, for if such was
the intention of the testatrix, there would have been no necessity of appointing an executor, nor any reason for
designating a substitute in case that the first one should not be able to discharge his duties, and they perceived in
this clause the idea which, according to them, was not expressed in the document, and which was that Pecson was
simply to be a mere executor entrusted with the distribution to the estate among the relatives of the testatrix, and
that should he not be able to do so, this duty would devolved upon his substitutes.
But it is not the sole duty of an executor to distribute the estate, which in estate succession, such as the instant
case, has to be distributed with the intervention of the court. All executor has, besides, other duties and general and
special powers intended for the preservation, defense, and liquidation of the estate so long as the same has not
reached, by order of the court, the hands of those entitled thereto.
The fact that Dolores Coronel foresaw the necessity of an executor does not imply a negation of her desire to will all
her estate to Lorenzo Pecson. It is to be noted, furthermore, that in the will, it was ordered that her body be given a
burial in accordance with her social standing and she had a perfect right to designate a person who should see to it
that this order was complied with. One of the functions of an executor is the fulfillment of what is ordained in the
will.
It is argued that the will of the testatrix was to will her estate to her blood relatives, for such was the promise made
to Maria Coronel, whom Rosario Coronel tends to corroborate. We do not find such a promise to have been
sufficiently proven, and much less to have been seriously made and coupled with a positive intention on the part of
Dolores Coronel to fulfill the same. In the absence of sufficient proof of fraud, or undue influence, we cannot take
such a promise into account, for even if such a promise was in fact made, Dolores Coronel could retract or forget it
afterwards and dispose of her estate as she pleased. Wills themselves, which contain more than mere promises, are
essentially revocable.
It is said that the true will of Dolores Coronel not expressed in the will can be inferred from the phrase used by Jose
M. Reyes in his deposition when speaking of the purpose for which Lorenzo Pecson was to receive the estate, to wit:
in order that the latter might dispose of the estate in the most appropriate manner
Weight is given to this phrase from the circumstance that its author was requested by Attorney Francisco to explain
the contents of Exhibit B and had acted as interpreter between Dolores Coronel and Attorney Francisco at their
interviews previous to the preparation of Exhibit A, and had translated into the Pampango dialect this last document,
and, lastly, was present at the execution of the will in question.
The disputed phrase "in order that the latter might dispose of the estate in the most appropriate manner" was used
by the witness Reyes while sick in a hospital and testifying in the course of the taking of his deposition.
The appellants interpret the expression "dispose in the most appropriate manner" as meaning to say "distribute it
among the heirs." Limiting ourselves to its meaning, the expression is a broad one, for the disposition may be
effected in several and various ways, which may not necessarily be a "distribution among the heirs," and still be a
"disposition in the most appropriate manner." "To dispose" is not the same as "to distribute."
To judge correctly the import of this phrase, the circumstances under which it was used must be taken into account
in this particular instance. The witness Reyes, the author of the phrase, was not expressing his own original ideas
when he used it, but was translating into Spanish what Dolores Coronel had told him. According to the facts, the
said witness is not a Spaniard, that is to say, the Spanish language is not his native tongue, but, perhaps, the
Pampango dialect. It is an admitted fact based on reason and experience that when a person translates from one
language to another, it is easier for him to express with precision and accuracy when the version is from a foreign
language to a native one than vice-versa. The witness Reyes translated from the Pampango dialect, which must be
more familiar to him, to the Spanish language which is not his own tongue. And judging from the language used by
him during his testimony in this case, it cannot be said that this witness masters the Spanish language. Thus is
explained the fact that when asked to give the reason for the appointment of an executor in the will, he should say
at the morning session that "Dolores Coronel did appoint Don Lorenzo Pecson and in his default, Victor Pecson, to
act during her lifetime, but not after he death," which was explained at the afternoon session by saying "that
Dolores Coronel did appoint Don Lorenzo Pecson executor of all her estate during his lifetime and that in his default,
either through death or incapacity, Mr. Victor Pecson was appointed executor." Taking into account all the
circumstances of this witness, there is ground to attribute his inaccuracy as to the discharge of the duties of an
executor, not to ignorance of the elementary rule of law on the matter, for the practice of which he was qualified,
but to a non-mastery of the Spanish language. We find in this detail of translation made by the witness Reyes no
sufficient reason to believe that the will expressed by Dolores Coronel at the said interview with Attorney Francisco
was to appoint Lorenzo Pecson executor and mere distributor of her estate among her heirs.
As to whether or not the burden of proof was on the petitioner to establish that he was the sole legatee to the
exclusion of the relatives of Dolores Coronel, we understand that it was not his duty to show the reasons which the
testatrix may have had for excluding her relatives from her estate, giving preference to him. His duty was to prove
that the will was voluntary and authentic and he, who alleges that the estate was willed to another, has the burden
of proving his allegation.
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Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson appear in the will as
sole beneficiary. However, after an examination of all the proceedings had, we cannot find anything in the behavior
of this lawyer, relative to the preparation and execution of the will, that would justify an unfavorable conclusion as to
his personal and professional conduct, nor that he should harbor any wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other than the last one,
Exhibit B (in the drawing of which he does not appear to her intervened), so that the instrument might be executed
with all the new formalities required by the laws then in force; nor in the preparation of the new will substantially in
accordance with the old one; nor in the selection of attesting witnesses who were persons other than the relatives of
Dolores Coronel. Knowing, as he did, that Dolores was excluding her blood relatives from the inheritance, in spite of
her having been asked by him whether their exclusion was due to a mere inadvertence, there is a satisfactory
explanation, compatible with honorable conduct, why said attorney should prescind from such relatives in the
attesting of the will, to the end that no obstacle be placed in the way to the probating thereof.
The fact that this attorney should presume that Dolores was to ask him to sign the will for her and that he should
prepare it containing this detail is not in itself fraudulent. There was in this case reason so to presume, and it
appears that he asked her, through Pablo Bartolome, whom she wanted to sign the document in her stead.
No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in the will, because the latter
was already his client at the execution of said will. Attorney Francisco denied this fact, which we cannot consider
proven after examining the evidence.
The conduct observed by this attorney after the death of Dolores Coronel in connection with the attempted
arrangement between Lorenzo Pecson and the opponents, does not, in our opinion, constitute any data leading to
the conclusion that an heir different from the true one intended by the testatrix should have been fraudulently made
to appear instituted in the will exhibit A. His attitude towards the opponents, as can be gathered from the
proceedings and especially from his letter Exhibit D, does not show any perverse or fraudulent intent, but rather a
conciliatory purpose. It is said that such a step was well calculated to prevent every possible opposition to the
probate of the will. Even admitting that one of his objects in entering into such negotiations was to avoid every
possible to the probate of the will, such object is not incompatible with good faith, nor does it necessarily justify the
inference that the heir instituted in the instrument was not the one whom the testatrix wanted appointed.
The appellants find rather suspicious the interest shown by the said attorney in trying to persuade Lorenzo Pecson to
give them some share of the estate. These negotiations were not carried out by the attorney out of his own
initiative, but at the instance of the same opponent, Agustin Coronel, made by the latter in his own behalf and that
of his coopponents.
As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he should have tried, through
fraud or any undue influence, to frustrate the alleged intention of the testatrix to leave her estate to her blood
relatives. The opponents insinuate that Lorenzo Pecson employed Attorney Francisco to carry out his reproachable
designs, but such depraved instrumentality was not proven, nor was it shown that said lawyer, or Lorenzo Pecson,
should have contrived or put into execution any condemnable plan, nor that both should have conspired for illegal
purposes at the time of the preparation and execution of the will Exhibit A.
Although Norberto Paras testified having heard, when the will was being read to Dolores Coronel, the provision
whereby the estate was ordered distributed among the heirs, the preponderance of the evidence is to the effect that
said Norberto Paras was not present at such reading of the will. Appellant do not insist on the probative force of the
testimony of this witness, and do not oppose its being stricken out.
The data furnished by the case do not show, to our mind, that Dolores Coronel should have had the intention of
giving her estate to her blood relatives instead of to Lorenzo Pecson at the time of the execution of the will Exhibit
A, nor that fraud or whatever other illegal cause or undue influence should have intervened in the execution of said
testament. Neither fraud nor evil is presumed and the record does not show either.
Turning to the second assignment of error, which is made to consist in the will having been probated in spite of the
fact that the attestation clause was not in conformity with the provision of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645, let us examine the tenor of such clause which literally is as follows:
The foregoing document was executed and declared by Dolores Coronel to be her last will testament in
our presence, and as testatrix does not know how to write her name, she requested Vicente J. Francisco
to sign her name under her express direction in our presence at the foot and on the left margin of each
and every sheet hereof. In testimony whereof, each of us signed these presents in the presence of others
of the testatrix at the foot hereof and on the margin of each and everyone of the two pages of which this
document is composed. These sheets are numbered correlatively with the words "one and "two on the
upper part of the face thereof.
(Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los Santos, Mariano L. Crisostomo,
Pablo Bartolome, Marcos de la Cruz, Damian Crisostomo."
Appellants remark that it is not stated in this clause that the will was signed by the witnesses in the presence of the
testatrix and of each other, as required by section 618 of the Code of Civil Procedure, as amended, which on this
particular point provides the following:
The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact
that the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of three witnesses, and the latter witnessed and signed the
will and all pages thereof in the presence of the testator and of each other.
Stress is laid on the phrase used in the attestation clause above copied, to wit:
each of us signed in the presence of others.
Two interpretations can absolutely be given here to the expression "of others." One, that insinuated by the
appellants, namely, that it is equivalent to "of other persons," and the other, that contended by the appellee, to wit,
that the phrase should be held to mean "of the others," the article "the" having inadvertently been omitted.
Should the first interpretation prevail and "other persons" be taken to mean persons different from the attesting
witnesses, then one of the solemnities required by law would be lacking. Should the second be adopted and "of
others" construed as meaning the other witnesses to the will, then the law would have been complied with in this
respect.
Including the concomitant words, the controverted phrase results thus: "each of us signed these presents in the
presence of others and of the testatrix."
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If we should omit the words "of others and," the expression would be reduced to "each of us signed these presents
in the presence of the testatrix," and the statement that the witnesses signed each in the presence of the others
would be lacking. But as a matter of fact, these words "of others and" are present. Then, what for are they there? Is
it to say that the witnesses signed in the presence of other persons foreign to the execution of the will, which is
completely useless and to no purpose in the case, or was it for some useful, rational, necessary object, such as that
of making it appear that the witnesses signed the will each in the presence of the others? The first theory
presupposes that the one who drew the will, who is Attorney Francisco, was an unreasonable man, which is an
inadmissible hypothesis, being repugnant to the facts shown by the record. The second theory is the most obvious,
logical and reasonable under the circumstances. It is true that the expression proved to be deficient. The deficiency
may have been caused by the drawer of the will or by the typist. If by the typist, then it must be presumed to have
been merely accidental. If by the drawer, it is explainable taking into account that Spanish is not only not the native
language of the Filipinos, who, in general, still speak until nowadays their own dialects, but also that such language
is not even the only official language since several years ago.
In Re will of Abangan (40 Phil., 476), this court said:
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 guarantee their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisite
entirely unnecesary, useless and frustrative of the testator's last will, must be disregarded.
We believe it to be more reasonable to construe the disputed phrase "of others" as meaning "of the other
witnesses," and that a grammatical or clerical error was committed consisting in the omission of the article "the".
Grammatical or clerical errors are not usually considered of vital importance when the intention is manifest in the
will.
The court may correct clerical mistakes in writing, and disregard technical rules of grammar as to the
construction of the language of the will when it becomes necessary for it to do so in order to effectuate
the testators manifest intention as ascertained from the context of the will. But unless a different
construction is so required the ordinary rules of grammar should be adhered to in construing the will. (40
Cyc., 1404).
And we understand that in the present case the interpretation we adopt is imperative, being the most adequate and
reasonable.
The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided by this court and invoked by
the appellants, refers so far as pertinent to the point herein at issue, to an attestation clause wherein the statement
that the witnesses signed the will in the presence of each other is totally absent. In the case at bar, there is the
expression "in the presence of others" whose reasonable interpretation is, as we have said, "in the presence of
the other witnesses." We do not find any party between the present case and that of Re Estate of Geronima Uy
Coque above cited.
Finally, we will take up the question submitted by the opponents as to the alleged insufficiency of the evidence to
show that the attesting witnesses Damian Crisostomo and Sotero Dumaual were present at the execution of the will
in controversy. Although this point is raised in the first assignment of error made by the appellants, and not in the
second, it is discussed in this place because it refers to the very fact of attestation. However, we do not believe it
necessary to analyze in detail the evidence of both parties on this particular point. The evidence leads us to the
conclusion that the two witnesses aforementioned were present at the execution and signing of the will. Such is also
the conclusion of the trial judge who, in this respect, states the following, in his decision:
As to the question of whether or not the testatrix and witnesses signed the document Exhibit A in accordance with
the provisions of law on the matter, that is, whether or not the testatrix signed the will, or caused it to be signed, in
the presence of the witnesses, and the latter in turn signed in her presence and that of each other, the court, after
observing the demeanor of the witnesses for both parties, is of the opinion that those for the petitioner spoke the
truth. It is neither probable nor likely that a man versed in the law, such as Attorney Francisco, who was present at
the execution of the will in question, and to whose conscientiousness in the matter of compliance with all the
extrinsic formalities of the execution of a will, and to nothing else, was due the fact that the testatrix had cancelled
her former will (Exhibit B) and had new one (Exhibit A) prepared and executed, should have consented the omission
of formality compliance with which would have required little or no effort; namely, that of seeing to it that the
testatrix and the attesting witnesses were all present when their respective signatures were affixed to the will." And
the record does not furnish us sufficient ground for deviating from the line reasoning and findings of the trial judge.
In conclusion we hold that the assignments of error made by the appellants are not supported by the evidence of
record.
The judgment appealed from if affirmed with costs against the appellants. So ordered.
________________________________________________________________________
G.R. No. L-22306 March 18, 1967
FELICITAS C. TAN, EUGENIO GALVEZ, EMIGDIO MERCADO, CEBU YELLOW TAXI (MANILA YELLOW
TAXICAB CO., INC. & CEBU CHECKERED CAB CO., INC.), petitioners, vs. PUBLIC SERVICE COMMISSION
and ANTONIO DE PIO, respondents.
This is an appeal by Felicitas Tan, Eugenio Galvez, Emigdio Mercado and Cebu Yellow Taxi (Manila Yellow Taxicab
Co., Inc. and Cebu Checkered Cab Co., Inc.) from a decision of the Public Service Commission granting Antonio de
Pio a Certificate of Public Convenience to operate fifteen (15) units of taxicabs within the City of Cebu.
Appellants maintain that said decision should be reversed because: (a) Mrs. Tan has been denied due process; and
(b) said decision was rendered without evidence to reasonably support its finding that there is public necessity for
the operation of said fifteen (15) units.
With respect to the first question, the record shows that, on or about May 27, 1963, De Pio filed with the PSC, in
Manila an application for authority to operate twenty-five (25) units of taxicabs in the Island of Cebu. Soon
thereafter, or on July 31, 1963, the PSC issued a notice setting said application for hearing on October 1, 1962, and
requiring all affected operators to file their oppositions thereto, if any, on or before the latter date. Eugenio Galvez,
Emigdio Mercado and the Cebu Yellow Taxi (Manila Yellow Taxicab Co., Inc. and Cebu Checkered Cab Co., Inc.) filed
their respective oppositions in due time.
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The opposition of Mrs. Tan was sent by registered mail in Cebu to the PSC in Manila, on September 30, 1963. Before Premises considered, we find that there is an existing public necessity for the service herein applied for.
it reached its destination, or on October 4, 1963, the PSC had issued an order commissioning the Municipal Judge of Considering that applicant has assets worth about P360,000.00 plus a yearly income of about P15,500.00
Cebu City to receive such evidence as the parties may wish to present. Inasmuch as Mrs. Tan's opposition had not, and P45,000.00 ready cash available for immediate investment; that he has a repair shop ready for use;
as yet, been received in the office of the PSC in Manila, she was not notified of this order, which, seemingly, did not that he has had experience as a common carrier operator; that the Delta Motors Corporation, distributor of
mention her among the oppositors to De Pio's application. Hence, neither did the Commissioner cause to be served Toyopet cars in the Philippines, has already agreed to supply him with the necessary units; that he already
upon Mrs. Tan official notice of the first hearing scheduled to be held in Cebu City on November 4, 1963, although has the necessary personnel to implement the service applied for, the Commission believes that public
De Pio's counsel stated, under oath, that he had personally notified her counsel of said hearing. Further hearings convenience would best be promoted if we grant to the applicant herein fifteen (15) units only instead of
were held on November 7, 15 and 18, 1963, of which Mrs. Tan was not, for the same reason, notified officially. In the twenty-five (25) herein applied for.
the course of these hearings De Pio introduced documentary and testimonial evidence, whereas appellees Galvez,
Mercado and Cebu Yellow Taxi (Manila Yellow Taxicab Co., Inc., Cebu Checkered Cab Co., Inc.) presented their own
The testimonial and documentary evidence introduced in this case substantially bear out the foregoing findings. Mrs.
witnesses. As a consequence, the only issue raised before and resolved by the PSC was whether or not there is
Tan impugns the veracity of the testimonial evidence for appellee De Pio; but, in a petition for review, like the one at
public necessity for the taxicab service applied for, which, on December 4, 1963, the PSC decided in the affirmative.
bar, this Court will not disturb the findings of the PSC on the credibility of witness, so long as their version is not
Thereupon, or on January 8, 1964, Mrs. Tan filed her petition for review with this Court.
inherently improbable, which is not the one before us.

It should be noted that Mrs. Tan has not asked the PSC for, either a reconsideration of its aforementioned decision,
Wherefore, the decision appealed from should be as it is hereby affirmed, with costs against the appellants herein. It
or a new trial to present her evidence. Neither has she stated in her petition for review before us, what evidence if
is so ordered.
any, she would introduce, should a new trial be held. The record before us is thus absolutely devoid of any indicia
that would justify a reasonable belief expectation or even the hope, that the outcome of the case would be
otherwise, if a new trial were held. There being no showing, that Mrs. Tan has suffered any substantial injury, she G.R. No. L-14474 October 31, 1960
has no cause for complaint in this appeal. 1Needless to say, the other oppositors can not even claim a denial of due
process.
ONESIMA D. BELEN, petitioner-appellant, vs.BANK OF THE PHILIPPINE ISLANDS and MILAGROS BELEN
DE OLAGUERA, oppositors-appellees.
As regards the second issue the decision appealed from has the following to say: 1wph1.t
Appeal from an order, dated May 23, 1958 of the Court of First Instance of Manila in Special Proceedings No. 9226,
Although the applicant had only two witnesses and the oppositors, six, nevertheless the Commission finds denying appellant's petition therein as hereafter discussed.
that the weight of evidence preponderates in favor of the applicant's stand. For the criteria or yardstick
used by the Commission in weighing the oral testimony is not the quantity of witnesses produced but by
the quality of the statements adduced. It should be noted that four of the six witnesses of oppositors were Briefly, the facts and circumstances that brought about this present appeal may be narrated as follows:
drivers or employees of said oppositors. Consequently, we find their testimony without such evidentiary
value because the same is not completely free from bias. Likewise we cannot give much weight to the Benigno Diaz executed a codicil on September 29, 1944, the pertinent provisions of which read:
testimony of the two other witnesses of the oppositors that it is not hard to get a taxicab in the City of
Cebu. That statement is more of a conjecture than a product of their own actual experience. For both of
9.0 En caso de muerte de alguno o de todos los legatarios nom brados por mi, seran beneficiarios o sea
them testified that in going from one point to another in the City of Cebu they invariably take a jeepney or
parasan los legados a favor solamente de los descendientes y ascendientes legitimos, pero no a los viudos
a rig and only rarely do they ride in a taxicab . They were not even sure that the vacant taxicabs they
conyuges.
claimed to have seen running around were looking for passengers or actually answering phone calls of
prospective passengers, nor were they certain that the vacant taxicabs they have seen parked were
waiting for passengers or merely parked because of engine trouble or their drivers merely taking a brief 10.0 Transcurridos diez o quince aos despues de mi muerte todas mispropiedades, muebles o
rest. inmuebles, derechos y ventajosos, pueden proceder a la venta de todos dando preferencia a los legatarios
y de su importe total se deduciran mil pesos (P1,000) para los cuartrohijos de mi difunto hermano Fabian,
todos los gastos y reservando una cantidad suficiente y bein calcumada para sufrugar se distriburia a las
At this point, we wish to emphasize the fact that the oppositors'witnesses themselves testified to the
siguientes personas que aun vuiven, o a sus descendientes legitimos:
existence of "Colorum" cars illegally competing with authorized taxicabs for passengers. This, in itself is a
tangible indication of an existing demand for means of transportation other than jeepneys or rigs.
Moreover, these same witnesses testified that there are eight or nine taxicab operators actually operating A Isabel M. de Santiago cincuente por ciento (50%)
in Cebu City although the records of the Commission show that there are eleven authorized to operate a Los hijos de Domingo Legarda treinta por ciente (30%)
combined total of 273 units. Of these, however, about ten to twenty per cent are not in actual operation. Filomena Diaz diez por ciento (10%)
Lastly, our records show that the last application for additional taxicab units in Cebu City was granted way Nestor M. Santiago diez por ciento (10%)
back in November of 1960 or more than three years ago. Certainly, within that period of time Cebu must
have expanded in population and business activity. On November 7, 1944, Benigno Diaz died; and the aforesaid codicil, together with the will, was admitted to probate
in Special Proceedings No. 894 of the same Court of First Instance of Manila. The proceedings for the administration

6
of the estate of Benigno Diaz were closed in 1950 and the estate was thereafter put under the administration of the
appellee Bank of the Philippine Islands, as trustee for the benefit of the legatees.
Filomena Diaz died on February 8, 1954, leaving two legitimate children, Milagros Belen de Olsguera, married, with
seven (7) legitimate children, and Onesima D. Belen, single.
On March 19, 1958, Onesima D. Belen filed a petition in Special Proceedings No. 9226, contending that the amount
that would have appertained to Filomena Diaz under the codicil should now be divided(equally) only between herself
and Milagros Belen de Olaguera, as the surviving children of the said deceased, to the exclusion, in other words, of
the seven (7) legitimate children of Milagros Belen de Olaguera. The court, in its order on May 23, 1958 denied, as
initially pointed out Onesima's petition. More specifically, the court said:
After due consideration of the petition filed by Onesima D. Belen on March 19, 1958, wherein it is prayed
that the trustee Bank of the Philippine Island be directed to deliver to her "one-half of whatever share is
due to the deceased Filomena Diaz as legatee in the will and codicil of the deceased testator Benigno Diaz
y Heredia, subject of trusteeship in these proceedings," this Court of the resolution of September 28,
1959, in which resolution the following was declared:
"That the share of Filomena Diaz in the residue of the proceeds of the sale of the properties
covered in paragraph 10 of the codicil aforesaid does not and should not from part of her
estate; it pertains to her legitimate descendants; and
"That the aforesaid share of Filomena Diaz should be distributed not only between her children,
Milagros Belen de Olaguera and Onesima D. Belen, but also among her other legitimate
descendants, if any, for descendientes include not only children but also grandchildren, etc., and
in this connection. it is not amiss to observe that one may be a descendant and not yet not be
an heir, and vice versa, one may be an heir and yet not be a descendant.
From this order Onesima D. Belen has appealed to this Court, insisting that (1) the Court below was in error in
holding that its former resolution of September 16, 1955 had been affirmed by our decision of February 28, 1958 in
the case of Arguelles vs. Belen de Olaguera, G.R. No. L-10164 Feb. 28, 1958; and (2) that the term " sus
descendeintes legitimos," as used in the codicil, should be interpreted to mean descendants nearest in the degree to
the original legatee Filomena Diaz. In the present case, they are her two daughters (Milagros and Onesima Belen),
thereby excluding the seven grandchildren of said legatee.
As to her first point, the appellant is the correct ion her view that the trial court's interpretation of clause 10 of the
codicil to the will of Benigno Diaz has not been affirmed in our previous decision (G.R. No. L-10164). Perusal of that
judgment will show that this Court left the issue open at the time, contenting itself with pointing out that the then
appellant Administrator of the estate of Folimena Diaz was not the proper party to the raise the particular issue.
As the actual meaning of the provision
El restro se distribuira a las siguientes personas que aun viven, o a sus descendientes legitimos,
it is undeniable that but this cluase the testator ordained a simple substitution ( sustitucion vulgar) with a plurality of
substitutes for each legatee. This form of substitution authorized by the first poart of Article 860 of the Civil Code
(Art. 778 of the Code of 1889):
Two or more persons may be substituted for one and one person for two or more heirs.
The issue is now squarely before us : do the words "sus descendientes legitimos" refer conjointly to all living
descendant (children and grandchildren) of the legatee, as a class; or they refer to the descendants nearest in
degree?
Appellant Onesima Belen contends that the phrase should be taken to mean the relatives nearest in degree to
Filomena Diaz; and that the legacy should be therefore divided equally between her and her sister Milagros Belen de
Olaguera, to the exclusion of the latter's sons and daughters, grand children of the original legatee, Filomena Diaz.
As authority in support of her thesis, appellant invokes Article 959 of the Civil Code of the Philippines
(reproducing ne varieter Article 751 of the Code of 1889):
A distribution made in general terms in favor of the testator's relatives shall be understood as made in
favor of those nearest in degree.
The argument fails to note that this article is specifically limited in its application to the case where the beneficiaries
are relatives of the testator, not those of the legatee. In such an event, the law assumes that the testator intended
to refer to the rules of intestacy, in order to benefit the relatives closest to him, because, as Manresa observes,
la razon y la logica ha cen fundadamente suponer que, al procurar este favorecer a sus parientes, habria
de ajustarse mas a ligadas al mismo (testador) por los vinculos de la sanger y de la familia (6 Manresa,
Comm., 7th Ed., p. 72).
But the ratios legis (that among a testator's relative the closest are dearest) obviously does not supply where the
beneficiaries are relatives of another person (the legatee) and noot of the testator . There is no logical reason in this
case to presume that the testator intended to refer to the rules of intestacy, for he precisely made a testament and
provided substitutes for each legatee; nor can it be said that his affections would prefer the nearest relatives of the
legatee to those more distant, since he envisages all of them in a group, and only as mere substitutes for a
preferred beneficiary.
Should Article 959 (old Art. 751) be applied by anology? There are various reasons against this. The most important
one is that under this article, as recognized by the principal commentators on the Code of 1889, the nearest of
exclude all the farther relatives and right of representation does not operate. Castan, in his monograph "El derecho
de representacion y mecanimos jurididos afines en la sucesion testamentaria" (Reus, 1942), says on this question
(Pp. 13, 14, 15):
En el subgrupo ibericio de Europia y America predomina, aunque haya ex excepciones, cuando menos en
principio, no tiene cabida en la sucesion testamentaria. Asi, por ejemplo, lo establece la doctrina cientifica
en Portugal y en la Argentina y lo ha sancionado la jurisprudencia en Cuba.
En igual sentido, en la doctrina espaola es opinion general que el derecho de representacion, dentro del
Codigo civil, no tiene lugar mas que en la sucesion intestada, y en la testamentaria en la parte refernte a
las legitimas. MUCIUS SCAEVOLA juzga que la reopresentacion, atraida por la herencia legitima, es
repelida por la testada, y apunta, como razon de ello, la de que "la primera descansa en la ley de la
sangre, en el parentesco con su consiguiente atributo de linea y grado, elementos propios o
indispensabnles para la repretascion , en tanto que l asegunda se basa exclusivamente en la voluntad del
testador, elemento diverso, en la orderen legal, al de la naturaleza o de la sandre". Y el maestro DE
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 DIEGO, con orientacion anologa, piensa que como el titulo de la sucesion testada es de origen voluntario y
caracter personalismo, es evidente que no hay terminos habiles para el derecho de representacion: los
llamamientos son individuales y la premoriencia del instituido, como su incapacidad, aniquilan la
institucion.
In the second place, the history of Article 751 (of the 1889 Code) shown that the right of representation
was deliberately suppressed. Says Castan (op. cit., 24):
En nuestra Patria opino GARCIA GOYENA que debia tener a los parientos mas representacion aun cuando
el testator llame abiertamente la voluntad del testador, debe "observarse el orden de la sucesion legitima,
al que se presume que en todo lo demas quiso atemperase. Poe ello, el art. 562 Proyecto de 1851 quedo
redactadso asi: "La disposicion hecha simple y generalmente a favor de los parientes del testador, se
entiende hecha en favor de los mas proximos en grado ; pero habra lugar al derecho de representacion
con todos sus efectos, con arreglo al tittulo siguiento".
Con poco acierto, a nuestro juicio, los autores del vigente Codigo han suprimido esta salvedad del
Proyecto del 51, y con ello han instaurado una norma rigida, distanciada de lo que exige la equidad y de lo
que suelen establecer los Codiogos extranjeros. Los commentaristas convienen en que la supresion ha
sido intencionada, y por consiguiente el proposito del legaslador es que en esta clase de llamamientos no
se da el derecho, de representacion. Dice Manresa que el art. 751 "tiene por favorecidos con tal
institucion, no a los parientes de mejor derecho, sino a los mas proximos en grado y, por lo tanto, los de
primer grado excluiran a los de segundo y asi sucesivamente, toda vez que la art. 915". La misma
interpretacion dan al articulo de referencia NAVARRO AMANDI, MUCIUS SCAEVOLA, SANCHEZ ROMAN y
VALVERDE.
The result would be that by applying to the descendants of Filorema Diaz the "nearest relatives" rule of Article 959,
the inheritance would be limited to her children, or anyone of them, excluding the grandchildren altogether. This
could hardly be the intention of the testator who, in the selfsame clause 10 of his council (ante), speaks of "cuatro
hijos de mi difunto hermano Fabian" and of "los hijos de Domingo Legarda," as well as of "descendientes legitimos"
of the other legates, to us indicating clearly that he understood well that hijos and descendientes are not
synonymous terms. Observe that, in referring to the substitutes of Filomena Diaz, Nestor Santiago and Isabel M. de
Santiago, the testator, does not even use the description "sus hijos o descendientes," but only "descendientes".
It is suggested that "descendientes legitimos" could mean the nearest descendant but with the right of
representation in favor of the more distant relatives. Unquestionably, the testator was at liberty to provide a series
of successive substitutions in the order of proximity of relationship to the original legatee. And he, likewise, was free
to ordain that the more distant descendants should enjoy the right of representation as in intestate succession. But
to arrive at such conclusion, we must declare that the testator had:.
(a) Rejected, or intended to reject, the right of accretion among co-heirs and co-legatees, as established for
testamentary successions by Articles 10016 (old Art. 982) and 1019, and intended to replace such accretion with
representation;
ART. 1016. In order that the right of accretion may take place in a testamentary succession, it shall be
necessary:
(1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro
indiviso; and
(2) That one of the persons thus called die before the testator or renounce the inheritance, or be
incapacitated to receive it.
xxx xxx xxx
ART. 1019. The heirs to whom the petition goes by the right of accretion take it in the same proportion
that they inherit.
(b) Refused, likewise, the rule of Article 846 (reproduced from Article 765 of the Code of 1889) providing that:
Heirs instituted without designation of shares shall inherit in equal parts,
which would not obtain if the right of representation were to apply;
(c) Rejected finally the rule of Article 1022 (old Art. 986), that vacancies in the free part should be filed according to
the rules of accretion or substitution (not representation); and in default of these two, ultimately inherited by the
testator's own heirs intestate:
ART. 1022. In testamentary succession, when the right of accretion does not take place, the vacant
portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the
testator, who shall receive it with the same charges and obligations.
There is no doubt that, the testator's intention being the cardinal rule of succession in the absence of compulsory
(forced) heirs, he could have rendered inoperative all the articles mentioned, if he had so desired. But without any
other supporting circumstances, we deem expression "o a sus desecendientes legitimos," the testator Benigno Diaz
did intend to circumvent all the legal provisions heretofore quoted. It was incumbent upon appellant to prove such
intention on the part of the testator; yet she has not done so.
It is interesting to note that even under the Anglo-Saxon doctrine, the courts are divided on the question whether a
bequest to "relatives" or "issue," made in general terms, gives rise to succession per capita or per stripes. In Wyeth,
et al., vs. Crane, 174 N.E. 871, the Supreme Court of Illinois said;
The meaning of the word "descendants", when used in a will or deed to designate a class to take property
passing by the will or deed, has been frequently considered and decided by the Court of England and the
United States. They established rule in England from an early date was that the word "descendants" or the
word "issued" unexplained by anything in the context of the instrument, means all persons descending
lineally from another, to the remotest degree, and includes persons descended, even though their parents
are living, and that such descendants take per capita stripes.
The courts of this country are divided on the question of whether in case of a gift or conveyance to
"descendants" or "issue", children take concurrently with their parents. The so- called English rule has
been adhered to in New York, New Jersey, and Tenessee. . . . On the other hand, the courts of
Massachusetts, Maine, Rhode Island and South Carolina have held that, in case of a gift or conveyance to
descendants or issue, unexplained by anything in the context of instrument, children do not take currently
with their parents.
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We conclude that in the absence of other indications of contrary intent, the proper rule to apply in the instant case is
that the testator, by designating a class or group of legatees, intended all members thereof to succeed per capita, in
consonance with article 846. So that the original legacy to Filomena Diaz should be equally divided among her
surviving children and grandchidren.
The order appealed from is affirmed, with costs to the appellant.
G.R. No. L-8927 March 10, 1914
ASUNCION NABLE JOSE, ET AL., plaintiff-appellants, vs.MARIA IGNACIA USON, ET AL., defendants-
appellees.
MORELAND, J.:
The question involved in this appeal arises from the interpretation of the first and second clauses of a codicil to the
will of Filomena Uson. They read as follows:
First. I declare that all the property which belongs to me as conjugal property, referred to in my said
testament, shall be the property of my aforesaid husband, Don Rafael Sison; in case all or part of said
property exists at my husband's death, it is my will that at his death my sisters and nieces hereinafter
named succeed him as heirs.
Second. I declare to be my sisters in lawful wedlock the persons named Doa Antonia Uson, now
deceased, who has left tow daughters called Maria Rosario, widow, and Maria Paz, unmarried; Maria
Romualda Uson, widow of Estanislao Lengson; Ignacia Uson, married to Don Vicente Puson; Eufemia
Uson, now deceased, who is survived by three daughters called Maria Salud, Maria Amparo, and Maria
Asuncion; and Maria Pilar Uson; Maria Manaoag Uson, unmarried, issued had by our deceased after Don
Daniel Uson with one Leonarda Fernandez, alias Andao de Lingayen, so that they may have and enjoy it in
equal parts as good sisters and relatives.
The court below found that the children of the deceased sisters should take only that portion which their respective
mothers would have taken if they been alive at the time the will was made; that the property should be divided into
six equal parts corresponding to the number of sisters; that each living sister should take one-sixth, and the children
of each deceased sister should also take one-sixth, each one- sixth to be divided among said children equally.
This appeal is taken from the judgment entered upon that finding, appellants asserting that under a proper
construction of the paragraphs of the codicil above-quoted the property should be divided equally between the living
sisters and the children of the deceased sisters, share and share alike, a niece taking the same share that a sister
receives.
We are of the opinion that the appellants' contention is well founded. We see no words appellants in the clauses
quoted which lead necessarily to the construction placed upon those paragraphs by the learned court below. On the
other hand, we find expressions which seem to indicate with fair clearness that it was the intention of the testatrix to
divide her property equally between her sisters and nieces. The court below based its construction upon the theory
that the other construction would be "an admission that the testatrix desired to favor her deceased sister Eufemia
Uson, who left three children, more than her other deceased sister Antonia Uson, who left two children, and
moreover both would be more favored than any of the other four surviving sisters, one of whom was married at the
time of the execution of the said codicil and without doubt had children."
As we look at the codicil we observe, first, that the testatrix, in the first paragraph thereof, declares that after her
husband's death she desires that "my sisters and nieces, as hereinafter named, shall succeed him as heirs."
We note, in the second place, that the testatrix, in the second paragraph of the codicil, names and identifies each
one of her heirs then living, in each one of the persons whom she desires shall succeed her husband in the property.
Among those mentioned specially are the nieces as well as the sisters. The nieces are referred to in no way different
from the sisters. Each one stands out in the second paragraph of the codicil as clearly as the other and under exactly
the same conditions.
In the third place, we note, with interest, the last clause of the second paragraph of the codicil which, it seems to
us, taken together with the last clause of the first paragraph of the codicil, is decisive of the intention of the
testatrix. In the last clause she says that she names all of the persons whom she desires to take under her will be
name "so that they must take and enjoy the property in equal parts as good sisters and relatives."
We have then in the first paragraph a declaration as to who the testatrix desires shall become the owners of her
property on the death of her husband. Among them we find the names of the nieces as well as of the sisters. We
have also the final declaration of the testatrix that she desires that the sisters and the nieces shall take and enjoy
the property in equal parts. That being so, it appears to us that the testatrix's intention is fairly clear, so clear in fact
that it is unnecessary to bring in extraneous arguments to reach a conclusion as to what she intended.
The judgment appealed from is hereby modified by declaring that, of the property passing under the codicil herein
above referred to, the living sisters and the children of the deceased sisters shall take per capita and in equal parts,
and as so modified the judgment is affirmed. No costs in this instance.
G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners, vs. HON.
ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA CRUZ-MENEZ
ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special Proceedings 2457)
a petition for probate, ante mortem, of her last will and testament. The probate was opposed by the present
petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, and still others who, like the petitioner,
are nephews and nieces of Basilia. This opposition was, however, dismissed and the probate of the will allowed after
due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto
Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and
declared by Basilia as her own legally adopted children.
9
On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The respondent Perfecto number of nephews and nieces who are concededly the nearest surviving blood relatives of the decedent. On the
Cruz was appointed executor without bond by the same court in accordance with the provisions of the decedent's other side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz
will, notwithstanding the blocking attempt pursued by the petitioner Ruben Austria. and Luz Cruz-Salonga, all of whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the
decedent by virtue of legal adoption. At the heart of the controversy is Basilia's last will immaculate in its extrinsic
validity since it bears the imprimatur of duly conducted probate proceedings.
Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in intervention for
partition alleging in substance that they are the nearest of kin of Basilia, and that the five respondents Perfecto Cruz,
et al., had not in fact been adopted by the decedent in accordance with law, in effect rendering these respondents The complaint in intervention filed in the lower court assails the legality of the tie which the respondent Perfecto
mere strangers to the decedent and without any right to succeed as heirs. Cruz and his brothers and sisters claim to have with the decedent. The lower court had, however, assumed, by its
orders in question, that the validity or invalidity of the adoption is not material nor decisive on the efficacy of the
institution of heirs; for, even if the adoption in question were spurious, the respondents Perfecto Cruz, et al., will
Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a quo allowed the
nevertheless succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling
petitioners' intervention by its order of December 22, 1959, couched in broad terms, as follows: "The Petition in
apparently finds support in article, 842 of the Civil Code which reads:
Intervention for Partition filed by the above-named oppositors [Ruben Austria, et al.,] dated November 5, 1959 is
hereby granted."
One who has no compulsory heirs may dispose of by will all his estate or any part of it in favor
of any person having capacity to succeed.
In the meantime, the contending sides debated the matter of authenticity or lack of it of the several adoption papers
produced and presented by the respondents. On motion of the petitioners Ruben Austria, et al., these documents
were referred to the National Bureau of Investigation for examination and advice. N.B.I. report seems to bear out One who has compulsory heirs may dispose of his estate provided he does not contravene the
the genuineness of the documents, but the petitioners, evidently dissatisfied with the results, managed to obtain a provisions of this Code with regard to the legitime of said heirs.
preliminary opinion from a Constabulary questioned-document examiner whose views undermine the authenticity of
the said documents. The petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption papers
The lower court must have assumed that since the petitioners nephews and niece are not compulsory heirs, they do
to the Philippine Constabulary for further study. The petitioners likewise located former personnel of the court which
not possess that interest which can be prejudiced by a free-wheeling testamentary disposition. The petitioners'
appeared to have granted the questioned adoption, and obtained written depositions from two of them denying any
interest is confined to properties, if any, that have not been disposed of in the will, for to that extent intestate
knowledge of the pertinent adoption proceedings.
succession can take place and the question of the veracity of the adoption acquires relevance.

On February 6, 1963, more than three years after they were allowed to intervene, the petitioners Ruben Austria, let
The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to them by
al., moved the lower court to set for hearing the matter of the genuineness of the adoption of the respondents
intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the decedent's will. They have thus
Perfecto Cruz, et al., by the late Basilia. Before the date set by the court for hearing arrived, however, the
raised squarely the issue of whether or not such institution of heirs would retain efficacy in the event there exists
respondent Benita Cruz-Meez who entered an appearance separately from that of her brother Perfecto Cruz, filed
proof that the adoption of the same heirs by the decedent is false.
on February 28, 1963 a motion asking the lower court, by way of alternative relief, to confine the petitioners'
intervention, should it be permitted, to properties not disposed of in the will of the decedent.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently submitted their
respective memoranda, and finally, the lower court issued an order on June 4, 1963, delimiting the petitioners' The statement of a false cause for the institution of an heir shall be considered as not written,
intervention to the properties of the deceased which were not disposed of in the will. unless it appears from the will that the testator would not have made such institution if he had
known the falsity of such cause.
The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition, from the
respondents. On October 25, 1963 the same court denied the petitioners' motion for reconsideration. Coming closer to the center of the controversy, the petitioners have called the attention of the lower court and this
Court to the following pertinent portions of the will of the deceased which recite:
A second motion for reconsideration which set off a long exchange of memoranda from both sides, was summarily
denied on April 21, 1964. III

Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25, 1963 and the Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na mga
order of April 21, 1964, all restricting petitioners' intervention to properties that were not included in the decedent's anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita at Isagani, na
testamentary dispositions. pawang may apelyidong Cruz.

The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate of the deceased. xxx xxx xxx
Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a

10
 Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang The decedent's will, which alone should provide the answer, is mute on this point or at best is vague and uncertain.
maiiwan, sa kaparaanang sumusunod: The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed from the language of the law on
succession and were used, respectively, to describe the class of heirs instituted and the abstract object of the
inheritance. They offer no absolute indication that the decedent would have willed her estate other than the way she
A.Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz,
did if she had known that she was not bound by law to make allowance for legitimes. Her disposition of the free
Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at
portion of her estate (libre disposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and
walang lamangan (en partes iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati
the children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the respondents
() ng aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong asawang
more than what she thought the law enjoined her to give to them. Compare this with the relatively small devise of
Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal
land which the decedent had left for her blood relatives, including the petitioners Consuelo Austria-Benta and Lauro
at itinutukoy sa No. 1 ng parafo IV ng testamentong ito, ang kalahati () ng mga lagay na lupa
Mozo and the children of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al.
at palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama na si
from the inheritance, then the petitioners and the other nephews and nieces would succeed to the bulk of the
Calixto Austria, at ang kalahati () ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na
testate by intestacy a result which would subvert the clear wishes of the decedent.
aking namana sa yumao kong kapatid na si Fausto Austria.

Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code:
The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia was deceived
"The words of a will are to receive an interpretation which will give to every expression some effect, rather than one
into believing that she was legally bound to bequeath one-half of her entire estate to the respondents Perfecto Cruz,
which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred
et al. as the latter's legitime. The petitioners further contend that had the deceased known the adoption to be
which will prevent intestacy." 1
spurious, she would not have instituted the respondents at all the basis of the institution being solely her belief
that they were compulsory heirs. Proof therefore of the falsity of the adoption would cause a nullity of the institution
of heirs and the opening of the estate wide to intestacy. Did the lower court then abuse its discretion or act in Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of
violation of the rights of the parties in barring the petitioners nephews and niece from registering their claim even to the testator to dispose of practically his whole estate, 2 as was done in this case. Moreover, so compelling is the
properties adjudicated by the decedent in her will? principle that intestacy should be avoided and the wishes of the testator allowed to prevail, that we could even vary
the language of the will for the purpose of giving it effect. 3 A probate court has found, by final judgment, that the
late Basilia Austria Vda. de Cruz was possessed of testamentary capacity and her last will executed free from
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must
falsification, fraud, trickery or undue influence. In this situation, it becomes our duty to give full expression to her
concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be
will.4
false; and third, it must appear from the face of the will that the testator would not have made such institution if he
had known the falsity of the cause.
At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a separate action
brought for that purpose, and cannot be the subject of a collateral attack. 5
The petitioners would have us imply, from the use of the terms, " sapilitang tagapagmana" (compulsory heirs) and
"sapilitang mana" (legitime), that the impelling reason or cause for the institution of the respondents was the
testatrix's belief that under the law she could not do otherwise. If this were indeed what prompted the testatrix in To the petitioners' charge that the lower court had no power to reverse its order of December 22, 1959, suffice it to
instituting the respondents, she did not make it known in her will. Surely if she was aware that succession to the state that, as borne by the records, the subsequent orders complained of served merely to clarify the first an act
legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to which the court could legally do. Every court has the inherent power to amend and control its processes and orders
name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very so as to make them conformable to law and justices. 6 That the court a quo has limited the extent of the petitioners'
well indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own intervention is also within its powers as articulated by the Rules of Court. 7
proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One fact
prevails, however, and it is that the decedent's will does not state in a specific or unequivocal manner the cause for
ACCORDINGLY, the present petition is denied, at petitioners cost
such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications.

And even if we should accept the petitioners' theory that the decedent instituted the respondents Perfecto Cruz, et G.R. No. L-23445 June 23, 1966
al. solely because she believed that the law commanded her to do so, on the false assumption that her adoption of
these respondents was valid, still such institution must stand. REMEDIOS NUGUID, petitioner and appellant, vs. FELIX NUGUID and PAZ SALONGA NUGUID, oppositors
and appellees.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the testator may
have written in his will for the institution of heirs. Such institution may be annulled only when one is satisfied, after SANCHEZ, J.:
an examination of the will, that the testator clearly would not have made the institution if he had known the cause
for it to be false. Now, would the late Basilia have caused the revocation of the institution of heirs if she had known
that she was mistaken in treating these heirs as her legally adopted children? Or would she have instituted them Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants, legitimate or
nonetheless? illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers
and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.

11
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly
executed by Rosario Nuguid on November 17, 1951, some 11 years before her demise. Petitioner prayed that said
will be admitted to probate and that letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the
deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter alia, is that by
the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors who are compulsory
heirs of the deceased in the direct ascending line were illegally preterited and that in consequence the institution
is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved
to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss. 1wph1.t
The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce create
intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The
court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will. The due
execution thereof, the testatrix's testamentary capacity, and the compliance with the requisites or solemnities by law
prescribed, are the questions solely to be presented, and to be acted upon, by the court. Said court at this stage of
the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the
legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should
be allowed probate. For them, the meat of the case is the intrinsic validity of the will. Normally, this comes only after
the court has declared that the will has been duly authenticated. 2 But petitioner and oppositors, in the court below
and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On
contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if
court rejects the will, probability exists that the case will come up once again before us on the same issue of
intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are
practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of
provisions of the will in question.3 After all, there exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete
nullity. This exacts from us a study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of
property, do hereby give, devise, and bequeath all of the property which I may have when I die to my beloved sister
Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this
seventh day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator, shall annul
the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code of Spain
of 1889, which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall void the institution of heir; but the
legacies and betterments4 shall be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point
Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun
nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente ni se le
asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno
cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa.
the
the Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa;
the que el heredero forzoso nada reciba en el testamento.
the
the It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us, to have on
hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484. 6
The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree upon
wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make void or of no
effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611,
614, 136 N..J Eq. 132.7
12
 ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to
do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate.
But she left forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga
Nuguid. And, the will completely omits both of them: They thus received nothing by the testament; tacitly, they
were deprived of their legitime; neither were they expressly disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa " anulara siempre la institucion de heredero , dando caracter absoluto a este
ordenamiento referring to the mandate of Article 814, now 854 of the Civil Code. 9 The one-sentence will here
institutes petitioner as the sole, universal heir nothing more. No specific legacies or bequests are therein provided
for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says
Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No
se aade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara la institucion de
heredero en cuanto prejudique a la legitima del deseheredado Debe, pues, entenderse que la anulacion es
completa o total, y que este articulo como especial en el caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o
todos los forzosos en linea recta, es la apertura de la sucesion intestada total o parcial. Sera total, cuando
el testador que comete la pretericion, hubiese dispuesto de todos los bienes por titulo universal de
herencia en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad
del precepto legal del art. 814, al determinar, como efecto de la pretericion, el de que "anulara la
institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the universal
institution of petitioner to the entire inheritance results in totally abrogating the will. Because, the nullification of
such institution of universal heir without any other testamentary disposition in the will amounts to a declaration
that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential
interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the statute. On this point,
Sanchez Roman cites the "Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion
expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no
consiente interpretacion alguna favorable a la persona instituida en el sentido antes expuesto aun cuando
parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho
sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal
base o supuesto, y consiguientemente, en un testamento donde falte la institucion, es obligado llamar a
los herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el testador no
hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto
que, en materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no
basta que sea conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una interpretacion
arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi
fuese, sera esto razon para modificar la ley, pero no autoriza a una interpretacion contraria a sus terminos
y a los principios que informan la testamentifaccion, pues no porque parezca mejor una cosa en el terreno
del Derecho constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y
anulando por este procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the devises and
legacies shall be valid insofar as they are not inofficious". Legacies and devises merit consideration only when they
are so expressly given as such in a will. Nothing in Article 854 suggests that the mere institution of a universal heir in
a will void because of preterition would give the heir so instituted a share in the inheritance. As to him, the will
is inexistent. There must be, in addition to such institution, a testamentary disposition granting him bequests or
legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of the two component
parts of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la pretericion";
but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate succession the
entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir.
That institution, by itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of
preterition". 15From this, petitioner draws the conclusion that Article 854 "does not apply to the case at bar". This
argument fails to appreciate the distinction between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they
are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly
disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in
the legitime for a cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la legitima
constituye la desheredacion. La privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman
emphasizes the distinction by stating that disinheritance "es siempre voluntaria"; preterition, upon the other hand, is
presumed to be "involuntaria". 19 Express as disinheritance should be, the same must be supported by a legal cause
specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names
altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs
suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those of disinheritance.
Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of heir". This annulment is in
toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In
ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of
heirs", put only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the case of
preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the
disinherited heirs have been illegally deprived. Manresa's expressive language, in commenting on the rights of the
preterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runs thus:
"Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that
the institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the extent
of said legitimes. 24
13
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor of the children by the second
marriage should be treated as legado and mejora and, accordingly, it must not be entirely annulled but
merely reduced. This theory, if adopted, will result in a complete abrogation of Articles 814 and 851 of the
Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and
betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding total
or partial nullity of the institution, would. be absolutely meaningless and will never have any application at
all. And the remaining provisions contained in said article concerning the reduction of inofficious legacies
or betterments would be a surplusage because they would be absorbed by Article 817. Thus, instead of
construing, we would be destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of
heirs from legacies and betterments, and a general from a special provision. With reference to article 814,
which is the only provision material to the disposition of this case, it must be observed that the institution
of heirs is therein dealt with as a thing separate and distinct from legacies or betterments. And they are
separate and distinct not only because they are distinctly and separately treated in said article but because
they are in themselves different. Institution of heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property bequeathed by a particular or special title. ... But again
an institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil Code in
turn merely nullifies "the institution of heir". Considering, however, that the will before us solely provides for the
institution of petitioner as universal heir, and nothing more, the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs
allowed. So ordered.
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner, vs.HON. INTERMEDIATE APPELLATE COURT (Third Special Cases
Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.
This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744
promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591
ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion
for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh
Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special
Proceedings No. 591 ACEB No special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals,
(Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition
for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters
testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died
leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina
and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written
in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by
private respondents. The will contained provisions on burial rites, payment of debts, and the appointment of a
certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the testator's property,
the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and money which I
earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO
ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu
City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which constitute my share shall be given to me
to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose,
all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with
Constantino as the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia
A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed
a motion to dismiss on the following grounds for the petitioner has no legal capacity to institute these proceedings;
(2) he is merely a universal heir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158).
Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the
Supreme Court a petition for certiorari and prohibition with preliminary injunction which was subsequently referred
to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner,
p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss
the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent
Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p.
146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents'
Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on
September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
14
 (A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary
injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of
the will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is
admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The
preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory
heirs in the direct line," and does not apply to private respondents who are not compulsory heirs
in the direct line; their omission shall not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere
institution of a universal heir in the will would give the heir so instituted a share in the
inheritance but there is a definite distinct intention of the testator in the case at bar, explicitly
expressed in his will. This is what matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp.
Proc. No. 591 ACEB for probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and
ineffectual.
The pivotal issue in this case is whether or not private respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devisees and legacies shall be valid insofar as
they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall he effectual,
without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they
are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow
is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator,
although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no
preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however,
the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator
has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603,
known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if
he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be
denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the
widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited.
Hence, this is a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance
including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion " Maniesa as cited in
Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result
in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as
the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator
results in totally abrogating the will because the nullification of such institution of universal heirs-without any other
testamentary disposition in the will-amounts to a declaration that nothing at all was written. Carefully worded and in
clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No
legacies nor devises having been provided in the will the whole property of the deceased has been left by universal
title to petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the
opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as
already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he
must have an interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a
claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one
who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of any gift
of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the outset,
he appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to
the succession either by the provision of a will or by operation of law. However, intestacy having resulted from the
preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the
testator. He has no legal standing to petition for the probate of the will left by the deceased and Special Proceedings
No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive
exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA
573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587
[1985]). It is axiomatic that the remedies of certiorari and prohibition are not available where the petitioner has the
remedy of appeal or some other plain, speedy and adequate remedy in the course of law (DD Comendador
Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda.
de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that
the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the
testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after the Court has declared that the will has been duly
authenticated. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy
of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v.
Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of
Appeals, 139 SCRA 206 [1985]).
15
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v.
Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of
absolute preteriton The probate court acting on the motion held that the will in question was a complete nullity and
dismissed the petition without costs. On appeal the Supreme Court upheld the decision of the probate court, induced
by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, probability exists that the case will
come up once again before us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question. After all there exists a justiciable controversy
crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was
grounded on petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the
evidence during the hearing held in connection with said motion. The Court upheld the probate court's order of
dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity
of the provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on its face the
will appeared to have preterited the petitioner the respondent judge should have denied its probate outright. Where
circumstances demand that intrinsic validity of testamentary provisions be passed upon even before the extrinsic
validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court of Appeals, supra;
Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the
Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the
proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited
(Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for the reason that "the grounds
for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course of the trial
on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on
February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face
the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs
coupled with the obvious fact that one of the private respondents had been preterited would have been an exercise
in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied
its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the
extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to
the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion,
amounting to lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of
Appeals, supra) and even assuming the existence of the remedy of appeal, the Court harkens to the rule that in the
broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would not afford
speedy and adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent
Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
G.R. No. L-47799 June 13, 1941
Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners, vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
MORAN, J.:
Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children named Eleuterio,
Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage with Ignacia Akutin, five children
named Gracia, Godofredo, Violeta, Estela Maria, and Emma. Getulia, daughter in the first marriage, died on October
2, 1923, that is, a little less than eight years before the death of said Agripino Neri y Chavez, and was survived by
seven children named Remedios, Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In Agripino Neri's
testament, which was admitted to probate on March 21, 1932, he willed that his children by the first marriage shall
have no longer any participation in his estate, as they had already received their corresponding shares during his
lifetime. At the hearing for the declaration of heirs, the trial court found, contrary to what the testator had declared
in his will, that all his children by the first and second marriages intestate heirs of the deceased without prejudice to
one-half of the improvements introduced in the properties during the existence of the last conjugal partnership,
which should belong to Ignacia Akutin. The Court of Appeals affirmed the trial court's decision with the modification
that the will was "valid with respect to the two-thirds part which the testator could freely dispose of. "This judgment
of the Court of Appeals is now sought to be reviewed in this petition for certiorari.
The decisive question here raised is whether, upon the foregoing facts, the omission of the children of the first
marriage annuls the institution of the children of the first marriage as sole heirs of the testator, or whether the will
may be held valid, at least with respect to one-third of the estate which the testator may dispose of as legacy and to
the other one-third which he may bequeath as betterment, to said children of the second marriage.
The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read in part as follows:
Disinheritance made without a statement of the cause, or for a cause the truth of which, if contradicted, is
not proven, ... shall annul the institution of the heir in so far as it prejudices the person disinherited; but
the legacies, betterments, and other testamentary dispositions, in so far as they do no encroach upon the
legitime, shall be valid.
The appellate court thus seemed to have rested its judgment upon the impression that the testator had intended to
disinherit, though ineffectively, the children of the first marriage. There is nothing in the will that supports this
conclusion. True, the testator expressly denied them any share in his estate; but the denial was predicated, not
upon the desire to disinherit, but upon the belief, mistaken though it was, that the children by the first marriage had
already received more than their corresponding shares in his lifetime in the form of advancement. Such belief
16
conclusively negatives all inference as to any intention to disinherit, unless his statement to that effect is prove to be
deliberately fictitious, a fact not found by the Court of Appeals. The situation contemplated in the above provision is
one in which the purpose to disinherit is clear, but upon a cause not stated or not proved, a situation which does not
obtain in the instant case.
The Court of Appeals quotes Manresa thus:
En el terreno de los principios, la solucion mas justa del problema que hemos hecho notar al comentar el
articulo, seria distinguir el caso en que el heredero omitido viviese al otorgarse el testamento, siendo
conocida su existencia por el testador, de aquel en que, o naciese despues, o se ignorase su existencia,
aplicando en el primer caso la doctrina del articulo 851, y en el segundo la del 814. (6 Manresa, 354-355.)
But it must be observed that this opinion is founded on mere principles (en el terreno de los principios) and not on
the express provisions of the law. Manresa himself admits that according to law, "no existe hoy cuestion alguna en
esta materia: la pretericion produce siempre los mismos efectos, ya se refiera a personas vivas al hacer el
testamento o nacidas despues. Este ultimo grupo solo puede hacer relacion a los descendientes legitimos, siempre
que ademas tengan derecho a legitima." (6 Manresa, 381.)
Appellants, on the other hand, maintain that the case is one of voluntary preterition of four of the children by the
first marriage, and of involuntary preterition of the children by the deceased Getulia, also of the first marriage, and is
thus governed by the provisions of article 814 of the Civil Code, which read in part as follows:
The preterition of one or all of the forced heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall void the institution of heir; but the
legacies and betterments shall be valid, in so far as they are not inofficious.
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.
(Cf. 6 Manresa, 346.) In the instant case, while the children of the first marriage were mentioned in the will, they
were not accorded any share in the heriditary property, without expressly being disinherited. It is, therefore, a clear
case of preterition as contended by appellants. The omission of the forced heirs or anyone of them, whether
voluntary or involuntary, is a preterition if the purpose to disinherit is not expressly made or is not at least manifest.
Except as to "legacies and betterments" which "shall be valid in so far as they are not inofficious" (art. 814 of the
Civil Code), preterition avoids the institution of heirs and gives rise to intestate succession. (Art. 814, Civil Code;
Decisions of the Supreme Court of Spain of June 17, 1908 and February 27, 1909.) In the instant case, no such
legacies or betterments have been made by the testator. "Mejoras" or betterments must be expressly provided,
according to articles 825 and 828 of the Civil Code, and where no express provision therefor is made in the will, the
law would presume that the testator had no intention to that effect. (Cf. 6 Manresa, 479.) In the will here in
question, no express betterment is made in favor of the children by the second marriage; neither is there any legacy
expressly made in their behalf consisting of the third available for free disposal. The whole inheritance is accorded
the heirs by the second marriage upon the mistaken belief that the heirs by the first marriage have already received
their shares. Were it not for this mistake, the testator's intention, as may be clearly inferred from his will, would
have been to divide his property equally among all his children.
Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without prejudice to the widow's
legal usufruct, with costs against respondents.
G.R. No. 137287 February 15, 2000
REBECCA VIADO NON, JOSE A. NON and DELIA VIADO, petitioners,
vs. THE HONORABLE COURT OF APPEALS, ALICIA N. VIADO, CHERRI VIADO and FE FIDES VIADO,
respondents.
VITUG, J.:
Petitioners, in their petition for review on certiorari under Rule 45 of the Rules of Court, seek a reversal of the 29th
May 1996 decision of the Court of Appeals, basically affirming that rendered on 30 April 1991 by the Regional Trial
Court ("RTC") of Queron City, Branch 23, adjudicating the property subject matter of the litigation to respondents.
The case and the factual settings found by the Court of Appeals do not appear to deviate significantly from that
made by the trial court.
During their lifetime, the spouses Julian C. Viado and Virginia P. Viado owned several pieces of property, among
them a house and lot located at 147 Isarog Street, La Loma, Quezon City, covered by Transfer Certificate of Title
No. 42682. Virginia P. Viado died on 20 October 1982. Julian C. Viado died three years later on 15 November 1985.
Surviving them were their children Nilo Viado, Leah Viado Jacobs, and herein petitioners Rebecca Viado, married
to Jose Non, and Delia Viado. Nilo Viado and Leah Viado Jacobs both died on 22 April 1987. Nilo Viado left behind as
his own sole heirs herein respondents his wife Alicia Viado and their two children Cherri Viado and Fe Fides Viado.
Petitioners and respondents shared, since 1977, a common residence at the Isarog property. Soon, however, tension
would appear to have escalated between petitioner Rebecca Viado and respondent Alicia Viado after the former had
asked that the property be equally divided between the two families to make room for the growing children.
Respondents, forthwith, claimed absolute ownership over the entire property and demanded that petitioners vacate
the portion occupied by the latter. On 01 February 1988, petitioners, asserting co-ownership over the property in
question, filed a case for partition before the Quezon City RTC (Branch 93). 1wphi1.nt
Respondents predicated their claim of absolute ownership over the subject property on two documents a deed of
donation executed by the late Julian Viado covering his one-half conjugal share of the Isarog property in favor of
Nilo Viado and a deed of extrajudicial settlement in which Julian Viado, Leah Viado Jacobs (through a power of
attorney in favor of Nilo Viado) and petitioner Rebecca Viado waived in favor of Nilo Viado their rights and interests
over their share of the property inherited from Virginia Viado. Both instruments were executed on 26 August 1983
and registered on 07 January 1988 by virtue of which Transfer Certificate of Title No. 42682 was cancelled and new
Transfer Certificate of Title No. 373646 was issued to the heirs of Nilo Viado.
Petitioners, in their action for partition, attacked the validity of the foregoing instruments, contending that the late
Nilo Viado employed forgery and undue influence to coerce Julian Viado to execute the deed of donation. Petitioner
Rebecca Viado, in her particular case, averred that her brother Nilo Viado employed fraud to procure her signature
to the deed of extrajudicial settlement. She added that the exclusion of her retardate sister, Delia Viado, in the
extrajudicial settlement, resulted in the latter's preterition that should warrant its annulment. Finally, petitioners
asseverated that the assailed instruments, although executed on 23 August 1983, were registered only five years
later, on 07 January 1988, when the three parties thereto, namely, Julian Viado, Nilo Viado and Leah Viado Jacobs
had already died.
Assessing the evidence before it, the trial court found for respondents and adjudged Alicia Viado and her children as
being the true owners of the disputed property.
17
On appeal, the Court of Appeals affirmed the decision of the trial court with modification by ordering the remand of SO ORDERED.
the records of the case to the court a quo for further proceedings to determine the value of the property and the
amount respondents should pay to petitioner Delia Viado for having been preterited in the deed of extrajudicial
settlement.

Petitioners are now before the Supreme Court to seek the reversal of the decision of the Court of Appeals.

The appellate court ruled correctly.

When Virginia P. Viado died intestate in 1982, her part of the conjugal property, the Isarog property in question
included, was transmitted to her heirs her husband Julian and their children Nilo Viado, Rebecca Viado, Leah
Viado and Delia Viado. The inheritance, which vested from the moment of death of the decedent, 1 remained under a
co-ownership regime2 among the heirs until partition.3 Every act intended to put an end to indivision among co-heirs
and legatees or devisees would be a partition although it would purport to be a sale, an exchange, a compromise, a
donation or an extrajudicial settlement.4

In debunking the continued existence of a co-ownership among the parties hereto, respondents rely on the deed of
donation and deed of extrajudicial settlement which consolidated the title solely to Nilo Viado. Petitioners assail the
due execution of the documents on the grounds heretofore expressed.

Unfortunately for petitioners, the issues they have raised boil down to the appreciation of the evidence, a matter
that has been resolved by both the trial court and the appellate court. The Court of Appeals, in sustaining the
court a quo, has found the evidence submitted by petitioners to be utterly wanting, consisting of, by and large, self-
serving testimonies. While asserting that Nilo Viado employed fraud, forgery and undue influence in procuring the
signatures of the parties to the deeds of donation and of extrajudicial settlement, petitioners are vague, however, on
how and in what manner those supposed vices occurred. Neither have petitioners shown proof why Julian Viado
should be held incapable of exercising sufficient judgment in ceding his rights and interest over the property to Nilo
Viado. The asseveration of petitioner Rebecca Viado that she has signed the deed of extrajudicial settlement on the
mistaken belief that the instrument merely pertained to the administration of the property is too tenuous to accept.
It is also quite difficult to believe that Rebecca Viado, a teacher by profession, could have misunderstood the tenor
of the assailed document.

The fact alone that the two deeds were registered five years after the date of their execution did not adversely
affect their validity nor would such circumstance alone be indicative of fraud. The registration of the documents was
a ministerial act5 and merely created a constructive notice of its contents against all third persons. 6 Among the
parties, the instruments remained completely valid and binding.

The exclusion of petitioner Delia Viado, alleged to be a retardate, from the deed of extrajudicial settlement verily has
had the effect of preterition. This kind of preterition, however, in the absence of proof of fraud and bad faith, does
not justify a collateral attack on Transfer Certificate of Title No. 373646. The relief, as so correctly pointed out by the
Court of Appeals, instead rests on Article 1104 of the Civil Code to the effect that where the preterition is not
attended by bad faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of
the share pertaining to her. Again, the appellate court has thus acted properly in ordering the remand of the case for
further proceedings to make the proper valuation of the isarog property and ascertainment of the amount due
petitioner Delia Viado.1wphi1.nt

WHEREFORE, the instant petition is DENIED, and the decision, dated 29 May 1996, in CA-G.R. No. 37272 of the
Court of Appeals is AFFIRMED. No special pronouncement on costs.
18