Wills & Succession/ Atty Uribe (4) Acknowledged natural children, and natural children by legal
fiction;
SUCCESSION
(5) Other illegitimate children referred to in Article 287.
Legend:
T – Senator Tolentino comments Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by
B – Professor Balane comments those in Nos. 1 and 2; neither do they exclude one another.
I. GENERAL PROVISIONS In all cases of illegitimate children, their filiation must be duly proved.
A. Definition and Concepts The father or mother of illegitimate children of the three classes
mentioned, shall inherit from them in the manner and to the extent
Art. 774. Succession is a mode of acquisition by virtue of which the established by this Code. (807a)
property, rights and obligations to the extent of the value of the
inheritance, of a person are transmitted through his death to another The Collateral Relatives
or others either by his will or by operation of law. (n)
Art. 1003. If there are no descendants, ascendants, illegitimate
Art. 712. Ownership is acquired by occupation and by intellectual children, or a surviving spouse, the collateral relatives shall succeed
creation. to the entire estate of the deceased in accordance with the following
articles. (946a)
Ownership and other real rights over property are acquired and
transmitted by law, by donation, by estate and intestate succession, Art. 1004. Should the only survivors be brothers and sisters of the full
and in consequence of certain contracts, by tradition. blood, they shall inherit in equal shares. (947)
They may also be acquired by means of prescription. Art. 1005. Should brothers and sisters survive together with nephews
and nieces, who are the children of the descendant's brothers and
Art. 1311. Contracts take effect only between the parties, their sisters of the full blood, the former shall inherit per capita, and the
assigns and heirs, except in case where the rights and obligations latter per stirpes. In relation to Article 975 which states Art. 975.
arising from the contract are not transmissible by their nature, or by When children of one or more brothers or sisters of the
stipulation or by provision of law. The heir is not liable beyond the deceased survive, they shall inherit from the latter by
value of the property he received from the decedent. representation, if they survive with their uncles or aunts. But if
they alone survive, they shall inherit in equal portions.
If a contract should contain some stipulation in favor of a third
person, he may demand its fulfillment provided he communicated his • Division per capita entails a division of the estate
acceptance to the obligor before its revocation. A mere incidental into as many equal parts as there are persons to
benefit or interest of a person is not sufficient. The contracting parties succeed. If there are three children, for instance,
must have clearly and deliberately conferred a favor upon a third each will receive, per capita, one third of the
person. estate. Division per capita is the general rule.
Fundamental Changes in the NCC in line with the purpose of • Division per stirpes is made when a sole
Socialization descendant or a group of descendants represent
a person in intestate succession. The sole
1. The surviving spouse is given a better status in terms of representative or group of representatives are
succession to the property of the decease husband, her right to the counted as one head. Thus, should a father be
property was improved from a mere usufruct to full ownership. survived by a son and four children of another
son who predeceased him, then, the estate is
2. The illegitimate children are now given successional rights unlike divided per stirpes. The first half is given to the
the old civil code which does not. Further, the illegitimate child’s surviving son and the other half shall be divided
mother or father not related by blood has a chance of inheriting, thus, among the four grandchildren.
furthering the purpose of socialization preventing a the property from
staying within the same family. Art. 1006. Should brother and sisters of the full blood survive
together with brothers and sisters of the half blood, the former shall
3. The Legitime of the compulsory heirs is increased from 1/3 to ½ be entitled to a share double that of the latter. (949)
4. The free portion of the estate of the deceased is likewise Art. 1007. In case brothers and sisters of the half blood, some on the
increased. father's and some on the mother's side, are the only survivors, all
shall inherit in equal shares without distinction as to the origin of the
B. Subjects of Succession property. (950)
1. Who are the subjects? Art. 1008. Children of brothers and sisters of the half blood shall
succeed per capita or per stirpes, in accordance with the rules laid
The Decedent down for the brothers and sisters of the full blood. (915)
Art. 775. In this Title, "decedent" is the general term applied to the Art. 1009. Should there be neither brothers nor sisters nor children of
person whose property is transmitted through succession, whether or brothers or sisters, the other collateral relatives shall succeed to the
not he left a will. If he left a will, he is also called the testator. estate.
The Heir, devisee, Legatee The latter shall succeed without distinction of lines or preference
among them by reason of relationship by the whole blood. (954a)
Art. 782. An heir is a person called to the succession either by the
provision of a will or by operation of law. Art. 1010. The right to inherit ab intestato shall not extend beyond the
fifth degree of relationship in the collateral line.(955a)
Devisees and legatees are persons to whom gifts of real and
personal property are respectively given by virtue of a will. • when there are no brothers whether the full of half
blood, the other collateral relatives succeed which
Art. 887. The following are compulsory heirs: whom, however, are limited within the 5th degree of
relationship. Because beyond this degree, it is safe to
(1) Legitimate children and descendants, with respect to their say that, there is hardly any affection to merit
legitimate parents and ascendants; succession. Hence, for succession purposes these
persons are no longer considered relatives.
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants; 1
(3) The widow or widower;
- jann -
Wills & Succession/ Atty Uribe A collateral line is that constituted by the series of degrees among
persons who are not ascendants and descendants, but who come
• The following rules shall apply: 1. the nearest relative from a common ancestor. (916a)
exclude the farther. 2. collateral of the same degree
inherit equal parts, there being no right of Art. 965. The direct line is either descending or ascending.
representation, 3. They succeed without distinction or
lines or preference among them on account of the The former unites the head of the family with those who descend
whole blood relationship from him.
The State The latter binds a person with those from whom he descends. (917)
Art. 1011. In default of persons entitled to succeed in accordance Art. 966. In the line, as many degrees are counted as there are
with the provisions of the preceding Sections, the State shall inherit generations or persons, excluding the progenitor.
the whole estate. (956a)
In the direct line, ascent is made to the common ancestor. Thus, the
• When a person dies intestate, leaving no compulsory child is one degree removed from the parent, two from the
heir, nor any other relatives to succeed him by law, grandfather, and three from the great-grandparent.
the natural result would be the complete
abandonment of the property. In the collateral line, ascent is made to the common ancestor and
then descent is made to the person with whom the computation is to
• The estate becomes subject to appropriation by be made. Thus, a person is two degrees removed from his brother,
anyone. This condition would result in conflicts three from his uncle, who is the brother of his father, four from his
detrimental to the public and economic order. first cousin, and so forth. (918a)
• In view of this, the law awards the property to the Art. 967. Full blood relationship is that existing between persons who
State, in representation of the people. Ratio: a) have the same father and the same mother.
Dictated by public policy and, b) private property is
enjoyed only under the protection of the State, and Half blood relationship is that existing between persons who have the
when no longer used, it should revert back to the same father, but not the same mother, or the same mother, but not
State. the same father. (920a)
• The reversion of the res nullius property can only be Art. 968. If there are several relatives of the same degree, and one or
done through an Escheat proceedings instituted by some of them are unwilling or incapacitated to succeed, his portion
the Solicitor General to the proper court ( the city or shall accrue to the others of the same degree, save the right of
municipality where the land is situated ). The State, representation when it should take place. (922)
therefore does not ipso facto become the owner of
the estate left without heir. Its right to claim must be • In such cases as above, the shares would have
based on a court’s ruling allowing it to have the pertained to those who repudiated or are
estate, after compliance with the procedure laid down incapacitated do not pass to relatives of the next
by the Rules of Court. (Rule 91) degree, but are retained by other relatives of the
same degree through the right of accretion, with the
Art. 1012. In order that the State may take possession of the property exception of the cases where the right of
mentioned in the preceding article, the pertinent provisions of the representation obtains. The right to represent a living
Rules of Court must be observed. (958a) person obtains only in cases of disinheritance and
incapacity.
Art. 1013. After the payment of debts and charges, the personal
property shall be assigned to the municipality or city where the Art. 969. If the inheritance should be repudiated by the nearest
deceased last resided in the Philippines, and the real estate to the relative, should there be one only, or by all the nearest relatives
municipalities or cities, respectively, in which the same is situated. called by law to succeed, should there be several, those of the
following degree shall inherit in their own right and cannot represent
If the deceased never resided in the Philippines, the whole estate the person or persons repudiating the inheritance.
shall be assigned to the respective municipalities or cities where the
same is located. * The article only pertains to repudiation. What then would
be the effect of incapacity of the only nearest relative? The right of
Such estate shall be for the benefit of public schools, and public representation may or may not obtain. Should the incapacitated heir
charitable institutions and centers, in such municipalities or cities. be the child of the decease, and he in turn has children, the latter
The court shall distribute the estate as the respective needs of each may represent the incapacitated heir.
beneficiary may warrant.
3. Capacity to Succeed
The court, at the instance of an interested party, or on its own
motion, may order the establishment of a permanent trust, so that The general rule is any person may succeed by law or by
only the income from the property shall be used. (956a) will unless excluded by law.
Art. 1014. If a person legally entitled to the estate of the deceased Requisites of capacity to succeed: a) that there be general
appears and files a claim thereto with the court within five years from civil capacity of the person, whether natural or artificial, according to
the date the property was delivered to the State, such person shall law; and b) that here be no incapacity to succeed under express
be entitled to the possession of the same, or if sold the municipality provision of law.
or city shall be accountable to him for such part of the proceeds as
may not have been lawfully spent. a. Determination
2. Relationships (Intestate or Legal Heirs) Art. 1034. In order to judge the capacity of the heir, devisee or
legatee, his qualification at the time of the death of the decedent
Art. 963. Proximity of relationship is determined by the number of shall be the criterion.
generations. Each generation forms a degree.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be
Art. 964. A series of degrees forms a line, which may be either direct necessary to wait until final judgment is rendered, and in the
or collateral. case falling under No. 4, the expiration of the month allowed for
the report.
A direct line is that constituted by the series of degrees among
ascendants and descendants. 2
- jann -
Wills & Succession/ Atty Uribe nature of the property and regardless of the country
wherein said property may be found."
If the institution, devise or legacy should be conditional, the time
of the compliance with the condition shall also be considered. Art. 1039."Capacity to succeed is governed by the law of the nation
of the decedent."
Art. 1039. Capacity to succeed is governed by the law of the
nation of the decedent the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the decedent.
Art. 16. Real property as well as personal property is subject to Although the parties admit that the Pennsylvania law does not
the law of the country where it is stipulated. provide for legitimes and that all the estate may be given away by the
testatrix to a complete stranger, the petitioner argues that such law
However, intestate and testamentary successions, both with should not apply because it would be contrary to the sound and
respect to the order of succession and to the amount of established public policy and would run counter to the specific
successional rights and to the intrinsic validity of testamentary provisions of Philippine Law.
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the It is a settled rule that as regards the intrinsic validity of the
nature of the property and regardless of the country wherein provisions of the will, as provided for by Article 16 (2) and 1039 of the
said property may be found. (10a) Civil Code, the national law of the decedent must apply. This was
squarely applied in the case of Bellis v. Bellis (20 SCRA 358)
Cayetano vs. Leonides 129 SCRA 522 wherein we ruled:"It is therefore evident that whatever public policy
or good customs may be involved in our system of legitimes,
On January 31, 1977, Adoracion C. Campos died, leaving her father, Congress has not intended to extend the same to the succession of
petitioner Hermogenes Campos and her sisters, private respondent foreign nationals. For it has specifically chosen to leave, inter alia,
Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the the amount of successional rights, to the decedent's national law.
surviving heirs. As Hermogenes Campos was the only compulsory Specific provisions must prevail over general ones.
heir, he executed an Affidavit of Adjudication under Rule 74, Section
I of the Rules of Court whereby he adjudicated unto himself the b. Who may succeed?
ownership of the entire estate of the deceased Adoracion Campos.
Art. 1024. Persons not incapacitated by law may succeed by will or
Eleven months after, on November 25, 1977, Nenita C. Paguia filed ab intestato.
a petition for the reprobate of a will of the deceased, Adoracion
Campos, which was allegedly executed in the United States and for The provisions relating to incapacity by will are equally applicable to
her appointment as administratrix of the estate of the deceased intestate succession. (744, 914)
testatrix.
• the second paragraph above merely enunciates a
In her petition, Nenita alleged that the testatrix was an American general rule because Article 1027 and 1028 clearly
citizen at the time of her death and was a permanent resident of are exceptions which do not apply to intestate
4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the succession but only that of testamentary dispositions.
testatrix died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate, Manila; that during • Kinds of Incapacity: a) absolute or per se and b)
her lifetime, the testatrix made her last will and testament on July 10, relative or per accidens
1975, according to the laws of Pennsylvania, U.S.A., nominating
Wilfredo Barzaga of New Jersey as executor; that after the testatrix' Art. 1025. In order to be capacitated to inherit, the heir, devisee or
death, her last will and testament was presented, probated, allowed, legatee must be living at the moment the succession opens, except
and registered with the Registry of Wills at the County of in case of representation, when it is proper.
Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator
who was appointed after Dr. Barzaga had declined and waived his A child already conceived at the time of the death of the decedent is
appointment as executor in favor of the former, is also a resident of capable of succeeding provided it be born later under the conditions
Philadelphia, U.S.A., and that therefore, there is an urgent need for prescribed in article 41. (n)
the appointment of an administratrix to administer and eventually
distribute the properties of the estate located in the Philippines. * Those not existing at the time of death is incapacitated to
succeed except on conditional wills where succession only opens
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died upon the happening of the condition.
and left a will, which, incidentally has been questioned by the
respondent, his children and forced heirs as, on its face patently null Art. 1026. A testamentary disposition may be made to the State,
and void, and a fabrication, appointing Polly Cayetano as the provinces, municipal corporations, private corporations,
executrix of his last will and testament. Cayetano, therefore, filed a organizations, or associations for religious, scientific, cultural,
motion to substitute herself as petitioner in the instant case which educational, or charitable purposes.
was granted by the court on September 13, 1982.
All other corporations or entities may succeed under a will, unless
ISSUE: Whether or not a compulsory heir may be validly excluded by there is a provision to the contrary in their charter or the laws of their
a will executed by a foreign testator? creation, and always subject to the same. (746a)
HELD: YES Art. 1029. Should the testator dispose of the whole or part of his
property for prayers and pious works for the benefit of his soul, in
RATIO: Although on its face, the will appeared to have preterited the general terms and without specifying its application, the executor,
petitioner and thus, the respondent judge should have denied its with the court's approval shall deliver one-half thereof or its proceeds
reprobate outright, the private respondents have sufficiently to the church or denomination to which the testator may belong, to
established that Adoracion was, at the time of her death, an be used for such prayers and pious works, and the other half to the
American citizen and a permanent resident of Philadelphia, State, for the purposes mentioned in Article 1013. (747a)
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of
the Civil Code which respectively provide: Art. 1030. Testamentary provisions in favor of the poor in general,
without designation of particular persons or of any community, shall
Art. 16 par. (2)."However, intestate and testamentary
successions, both with respect to the order of succession 3
and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose
succession is under consideration, whatever may be the
- jann -
Wills & Succession/ Atty Uribe From the foregoing testamentary provisions, it may be deduced
that the testator intended to devise the ricelands to his nearest
be deemed limited to the poor living in the domicile of the testator at male relative who would become a priest, who was forbidden to
the time of his death, unless it should clearly appear that his intention sell the ricelands, who would lose the devise if he discontinued his
was otherwise. studies for the priesthood, or having been ordained a priest, he was
excommunicated, and who would be obligated to say annually twenty
The designation of the persons who are to be considered as poor masses with prayers for the repose of the souls of the testator and
and the distribution of the property shall be made by the person his parents.
appointed by the testator for the purpose; in default of such person,
by the executor, and should there be no executor, by the justice of On the other hand, it is clear that the parish priest of Victoria would
the peace, the mayor, and the municipal treasurer, who shall decide administer the ricelands only in two situations: one, during the
by a majority of votes all questions that may arise. In all these cases, interval of time that no nearest male relative of the testator was
the approval of the Court of First Instance shall be necessary. studying for the priesthood and two, in case the testator's nephew
became a priest and he was excommunicated.
The preceding paragraph shall apply when the testator has
disposed of his property in favor of the poor of a definite locality. What is not clear is the duration of "el intervalo de tiempo que no
haya legatario acondicionado", or how long after the testator's death
Parish Priest of Victoria vs. Rigor would it be determined that he had a nephew who would pursue an
ecclesiastical vocation. It is that patent ambiguity that has brought
This case is about the efficaciousness or enforceability of a devise of about the controversy between the parish priest of Victoria and the
ricelands located at Guimba, Nueva Ecija, with a total area of around testator's legal heirs.
forty-four hectares. That devise was made in the will of the late
Father Pascual Rigor, a native of Victoria, Tarlac, in favor of his Interwoven with that equivocal provision is the time when the nearest
nearest male relative who would study for the priesthood. male relative who would study for the priesthood should be
determined. Did the testator contemplate only his nearest male
The record discloses that Father Rigor, the parish priest of Pulilan, relative at the time of his death? Or did he have in mind any of his
Bulacan, died on August 9, 1935, leaving a will executed on October nearest male relatives at anytime after his death?
29, 1933 which was probated by the Court of First Instance of Tarlac
in its order of December 5, 1935. Named as devisees in the will were We hold that the said bequest refers to the testator's nearest male
the testator's nearest relatives, namely, his three sisters: Florencia relative living at the time of his death and not to any indefinite time
Rigor-Escobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao. thereafter. "In order to be capacitated to inherit, the heir, devisee or
The testator gave a devise to his cousin, Fortunato Gamalinda. legatee must be living at the moment the succession opens, except
in case of representation, when it is proper" (Art. 1025, Civil Code).
About thirteen years after the approval of the project of partition, or
on February 19, 1954, the parish priest of Victoria filed in the pending The said testamentary provisions should be sensibly or reasonably
testate proceeding a petition praying for the appointment of a new construed. To construe them as referring to the testator's nearest
administrator (succeeding the deceased administratrix, Florencia male relative at anytime after his death would render the provisions
Rigor), who should deliver to the church the said ricelands, and difficult to apply and create uncertainty as to the disposition of his
further praying that the possessors thereof be ordered to render an estate. That could not have been his intention.
accounting of the fruits. The probate court granted the petition. A
new administrator was appointed. On January 31, 1957 the parish In 1935, when the testator died, his nearest legal heirs were his three
priest filed another petition for the delivery of the ricelands to the sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and
church as trustee. Mrs. Quiambao. Obviously, when the testator specified his nearest
male relative, he must have had in mind his nephew or a son of his
The intestate heirs of Father Rigor countered with a petition dated sister, who would be his third-degree relative, or possibly a
March 25, 1957 praying that the bequest be declared inoperative and grandnephew. But since he could not prognosticate the exact date
that they be adjudged as the persons entitled to the said ricelands of his death or state with certitude what category of nearest male
since, as admitted by the parish priest of Victoria, "no nearest male relative would be living at the time of his death, he could not specify
relative of" the testator "has ever studied for the priesthood" that his nearest male relative would be his nephew or grandnephews
(pp. 25 and 35, Record on Appeal). That petition was opposed by the (the sons of his nephew or niece) and so he had to use the term
parish priest of Victoria. "nearest male relative".
Judge De Aquino granted the second motion for reconsideration in Parenthetically, it should be stated at this juncture that Edgardo
his order of December 10, 1957 on the ground that the testator had a ceased to be a seminarian in 1961. For that reason, the legal heirs
grandnephew named Edgardo G. Cunanan (the grandson of his first apprised the Court of Appeals that the probate court's order
cousin) who was a seminarian in the San Jose Seminary of the adjudicating the ricelands to the parish priest of Victoria had no more
Jesuit Fathers in Quezon City. The administrator was directed to leg to stand on (p. 84, Appellant's brief).
deliver the ricelands to the parish priest of Victoria as trustee.
Had the testator intended that the "cualquier pariente mio varon mas
The legal heirs appealed to the Court of Appeals. It reversed that cercano que estudie la carrera eclesiastica" would include
order. It held that Father Rigor had created a testamentary trust for indefinitely anyone of his nearest male relatives born after his death,
his nearest male relative who would take the holy orders but that he could have so specified in his will. He must have known that such
such trust could exist only for twenty years because to enforce it a broad provision would suspend for an unlimited period of time the
beyond that period would violate "the rule against perpetuities". It efficaciousness of his bequest.
ruled that since no legatee claimed the ricelands within twenty years
after the testator's death, the same should pass to his legal heirs, Following that interpretation of the will, the inquiry would be whether
citing articles 888 and 912(2) of the old Civil Code and article 870 of at the time Father Rigor died in 1935 he had a nephew who was
the new Civil Code. studying for the priesthood or who had manifested his desire to
follow the ecclesiastical career. That query is categorically answered
The will of the testator is the first and principal law in the matter in paragraph 4 of appellant priest's petitions of February 19, 1954
of testaments. When his intention is clearly and precisely and January 31, 1957. He unequivocally alleged therein that "no
expressed, any interpretation must be in accord with the plain and nearest male relative of the late (Father) Pascual Rigor has ever
literal meaning of his words, except when it may certainly appear that studied for the priesthood" (pp. 25 and 35, Record on Appeal).
his intention was different from that literally expressed (In re Estate of
Calderon, 26 Phil. 333 Inasmuch as the testator was not survived by any nephew who
became a priest, the unavoidable conclusion is that the bequest in
"The intent of the testator is the cardinal rule in the construction question was ineffectual or inoperative. Therefore, the administration
of wills." It is "the life and soul of a will". It is "the first greatest rule, of the ricelands by the parish priest of Victoria, as envisaged in the
the sovereign guide, the polestar, in giving effect to a will" will, was likewise inoperative.
- jann - 4
Wills & Succession/ Atty Uribe (3) Any person who has accused the testator of a crime for
which the law prescribes imprisonment for six years or more, if
The Court of Appeals correctly ruled that this case is covered by the accusation has been found groundless;
article 888 of the old Civil Code, now article 956, which provides that
if "the bequest for any reason should be inoperative, it shall be (4) Any heir of full age who, having knowledge of the violent
merged into the estate, except in cases of substitution and those in death of the testator, should fail to report it to an officer of the
which the right of accretion exists" ("el legado . . . por qualquier law within a month, unless the authorities have already taken
causa, no tenga efecto, se refundir en la masa de la herencia, fuera action; this prohibition shall not apply to cases wherein,
de los casos de sustitucion y derecho de acrecer"). according to law, there is no obligation to make an accusation;
This case is also covered by article 912(2) of the old Civil Code, now (5) Any person convicted of adultery or concubinage with the
article 960(2), which provides that legal succession takes place when spouse of the testator;
the will "does not dispose of all that belongs to the testator." There
being no substitution nor accretion as to the said ricelands, the same (6) Any person who by fraud, violence, intimidation, or undue
should be distributed among the testator's legal heirs. The effect is influence should cause the testator to make a will or to change
as if the testator had made no disposition as to the said ricelands. one already made;
The Civil Code recognizes that a person may die partly testate and (7) Any person who by the same means prevents another from
partly intestate, or that there may be mixed succession. The old rule making a will, or from revoking one already made, or who
as to the indivisibility of the testator's will is no longer valid. Thus, if a supplants, conceals, or alters the latter's will;
conditional legacy does not take effect, there will be intestate
succession as to the property covered by the said legacy (Macrohon (8) Any person who falsifies or forges a supposed will of the
Ong Ham vs. Saavedra, 51 Phil. 267). decedent. (756, 673, 674a)
c. Who are incapable of succeeding? Art. 1033. The cause of unworthiness shall be without effect if
the testator had knowledge thereof at the time he made the will,
Art. 1027. The following are incapable of succeeding: or if, having known of them subsequently, he should condone
them in writing. (757a)
(1) The priest who heard the confession of the testator during
his last illness, or the minister of the gospel who extended d. Effect of alienations by the excluded heir
spiritual aid to him during the same period;
Art. 1036. Alienations of hereditary property, and acts of
(2) The relatives of such priest or minister of the gospel within administration performed by the excluded heir, before the
the fourth degree, the church, order, chapter, community, judicial order of exclusion, are valid as to the third persons who
organization, or institution to which such priest or minister may acted in good faith; but the co-heirs shall have a right to recover
belong; damages from the disqualified heir.
(3) A guardian with respect to testamentary dispositions given e. Rights of the excluded Heir
by a ward in his favor before the final accounts of the
guardianship have been approved, even if the testator should Art. 1035. If the person excluded from the inheritance by reason
die after the approval thereof; nevertheless, any provision made of incapacity should be a child or descendant of the decedent
by the ward in favor of the guardian when the latter is his and should have children or descendants, the latter shall
ascendant, descendant, brother, sister, or spouse, shall be acquire his right to the legitime.
valid;
The person so excluded shall not enjoy the usufruct and
(4) Any attesting witness to the execution of a will, the spouse, administration of the property thus inherited by his children
parents, or children, or any one claiming under such witness,
spouse, parents, or children; in relation to Art. 823. If a person Art. 1037. The unworthy heir who is excluded from the
attests the execution of a will, to whom or to whose succession has a right to demand indemnity or any expenses
spouse, or parent, or child, a devise or legacy is given by incurred in the preservation of the hereditary property, and to
such will, such devise or legacy shall, so far only as enforce such credits as he may have against the estate.
concerns such person, or spouse, or parent, or child of
such person, or any one claiming under such person or Art. 1014. If a person legally entitled to the estate of the
spouse, or parent, or child, be void, unless there are three deceased appears and files a claim thereto with the court within
other competent witnesses to such will. However, such five years from the date the property was delivered to the State,
person so attesting shall be admitted as a witness as if such person shall be entitled to the possession of the same, or
such devise or legacy had not been made or given. (n) if sold the municipality or city shall be accountable to him for
such part of the proceeds as may not have been lawfully spent.
(5) Any physician, surgeon, nurse, health officer or druggist who
took care of the testator during his last illness; f. Liabilities of the excluded heir
(6) Individuals, associations and corporations not permitted by Art. 1038. Any person incapable of succession, who,
law to inherit. (745, 752, 753, 754a) disregarding the prohibition stated in the preceding articles,
entered into the possession of the hereditary property, shall be
Art. 1028. The prohibitions mentioned in article 739, concerning obliged to return it together it its accessions.
donations inter vivos shall apply to testamentary provisions.
He shall be liable for all the fruits and rents he may have
Art. 1031. A testamentary provision in favor of a disqualified received, or could have received through the exercise of due
person, even though made under the guise of an onerous diligence.
contract, or made through an intermediary, shall be void. (755)
g. Prescription of Action
Art. 1032. The following are incapable of succeeding by reason
of unworthiness: Art. 1040. The action for a declaration of incapacity and for the
recovery of the inheritance, devise or legacy shall be brought
(1) Parents who have abandoned their children or induced within five years from the time the disqualified person took
their daughters to lead a corrupt or immoral life, or attempted possession thereof. It may be brought by any one who may
against their virtue; have an interest in the succession.
(2) Any person who has been convicted of an attempt C. Object of Succession
against the life of the testator, his or her spouse, descendants,
or ascendants; 5
- jann -
Wills & Succession/ Atty Uribe Art. 781. The inheritance of a person includes not only the
property and the transmissible rights and obligations existing at
Art. 776. The inheritance includes all the property, rights and the time of his death, but also those which have accrued thereto
obligations of a person which are not extinguished by his death. since the opening of the succession.
It is evident from this article that the inheritance does not include Since ownership is vested in the heir from the moment of the death
everything that belongs to the deceased at the time of his death. It is of the predecessor, necessarily all accessions subsequent to that
limited to the property, rights, and obligations not extinguish by his moment must belong to such heir.
death. Including those transmissible rights and property accruing
thereto from that time pertain to the heir. The criticism on this article is that the accession to such property is
not transmitted by death; it is acquired already by virtue of the right of
The following are the rights and obligations extinguished by death: ownership which is vested from the moment of the predecessor’s
death in the successor. It is judicially erroneous to say that
1. those arising from marriage inheritance includes such accession. Even without this article, an heir
would be entitled to the accession and fruits which accrued since the
2. action for legal separation belonging to the innocent death of the decedent by virtue of the right of accession
spouse (ownweship).
3. action to annul marriage Art. 1311. Contracts take effect only between the parties, their
assigns and heirs, except in case where the rights and
4. obligation to give legal support except those expressly obligations arising from the contract are not transmissible by
provided for by law their nature, or by stipulation or by provision of law. The heir is
not liable beyond the value of the property he received from the
5. right to receive support decedent.
6. right of patria potestas If a contract should contain some stipulation in favor of a third
person, he may demand its fulfillment provided he
7. right of the guardian communicated his acceptance to the obligor before its
revocation. A mere incidental benefit or interest of a person is
8. right of usufruct not sufficient. The contracting parties must have clearly and
deliberately conferred a favor upon a third person.
9. right of donor to revoke donation due to ingratitude of
donee As a general rule, rights and obligations under a contract are
transmitted to the heirs of the parties. The heirs cannot be
10. rights arising from agency not the effects already executed considered third parties, because there is privity of interest between
them and their predecessor. A lease contract is transmissible to the
11. criminal responsibility heirs of the lessee. The heirs of a party in whose favor a trust exists,
may enforce the trust against the trustee. The heirs of the parties to a
12. rights from public law such as suffrage and public contract may make a valid novation of said contract.
employment
Art. 1429. When a testate or intestate heir voluntarily pays a
The following rules are laid down debt of the decedent exceeding the value of the property which
he received by will or by the law of intestacy from the estate of
1. rights which are purely personal are by their nature and the deceased, the payment is valid and cannot be rescinded by
purpose intransmissible, ex. Those relating to civil the payer.
personality, family rights, and discharge of public office
Art. 1178. Subject to the laws, all rights acquired in virtue of an
2. rights which are patrimonial or relating to property are, as obligation are transmissible, if there has been no stipulation to
ageneral rule, not extinguished by death except those the contrary.
expressly provided by law or by will of the testator such as
usufruct and personal servitudes. As a general rule. Civil rights are transmissible except: 1) expressly
provided by law that they are not. 2) Stipulation of the parties. 3)
3. rights of obligation are by nature transmissible and may be Personal rights of the debtor. An instrument evidencing a credit may
part of inheritance, both the right of the creditor and be transferred or assigned by the creditor to another, and the
obligation of the debtor except the following: transferee would be considered in lawful possession of the same as
well as the credit, unless contrary is shown.
a. those which are personal, such as personal
qualifications of the debtor have been taken into Transmissibility is the capability of the rights to be transferred from
account one person to another.
b. those that are intransmissible by express Art. 1347. All things which are not outside the commerce of
agreement or will of testator men, including future things, may be the object of a contract. All
rights which are not intransmissible may also be the object of
c. those that are intransmissible by express contracts.
provision of law like life pensions given under
contract No contract may be entered into upon future inheritance except
in cases expressly authorized by law.
The heirs of the deceased are no longer liable for the debts he may
leave at the time of his death. Such debts are chargeable against the All services which are not contrary to law, morals, good
property or assets left by the deceased. In other words, the heirs are customs, public order or public policy may likewise be the
no longer liable personally for the debts of the deceased ; such debts object of a contract.
must be collected only from the property left upon his death, and if
this should not be sufficient to cover all of them, the heirs cannot be It is essential that the object must be in existence at the time of
made to pay the uncollectible balance. perfection of the contract, or that it has the possibility or potentiality
of coming into existence at some future time. By way of exception,
Inheritance consists of the mass of property, rights, and obligations the law generally does not allow contracts on future inheritance. In
adjudicated to the heirs or transmitted to them after deducting order to be future inheritance, the succession must not have been
therefrom all the debts left by the deceased. opened at the time of the contract. A contract to fall within the
prohibition of this article, the following requisites are necessary: 1.
This should not be understood to mean, however, that obligations that the succession is yet to be opened. 2. the object forms part of
are no longer a part of inheritance. Only the money debts are
chargeable against the estate left by the deceased; these are 6
obligations which do not pass to the heirs, but constitute a charge
against the hereditary property.
- jann -
Wills & Succession/ Atty Uribe ownership of property or a period wherein a property has no clear
owner or a period of res nullius.
the inheritance. 3. the promissor has an expectant right over the
object which is purely hereditary in nature. Note: That death under this article is not limited to natural or physical
death, presumed death by virtue of prolonged legal absence is
An agreement to partition an estate of a living person by those who included.
inherit from him is void. A contract renouncing the right to inherit from
one who is still alive is void. Art. 2263. Rights to the inheritance of a person who died, with or
without a will, before the effectivity of this Code, shall be
After the death of the person, however, the properties and rights left governed by the Civil Code of 1889, by other previous laws, and
by him by way of inheritance can be the subject matter of a contract by the Rules of Court. The inheritance of those who, with or
among or by his heirs, even before a partition thereof has been without a will, die after the beginning of the effectivity of this
made, because the rights of the heirs are transmitted to them from Code, shall be adjudicated and distributed in accordance with
the death of the predecessor. this new body of laws and by the Rules of Court; but the
testamentary provisions shall be carried out insofar as they may
When the object of the contract is not a part of the inheritance, the be permitted by this Code. Therefore, legitimes, betterments,
prohibition does not apply, even if delivery of such object is legacies and bequests shall be respected; however, their
dependent upon the death of one of the contracting parties. Thus, life amount shall be reduced if in no other manner can every
insurance contracts, and stipulations providing for reversion of compulsory heir be given his full share according to this Code.
property donated in marriage settlements in the event of the death of (Rule 12a)
the donee, are valid. Likewise, if the right of the party over the thing
is not by virtue of succession, but as creditor, the contract does not The decisive fact which gives origin to the right of heirs, devisees
fall within the prohibition of this article. It has been held that in a and legatees is the death of the decedent. This is the basis of the
contract of purchase by co-owners, it is valid to stipulate that in the present article. Thus, the provisions of the new code relaxing the
event of death of any of them, those who survive will acquire the rigidity of the rules of the old code regarding proof or recognition of
share of the predeceased. natural children, were held inapplicable to one claiming recognition
and a share in the estate of the alleged natural father who died
(RPC) Art. 108. Obligation to make restoration, reparation for before the new code went into effect.
damages, or indemnification for consequential damages and
actions to demand the same; Upon whom it devolves. — The Art. 2253. The Civil Code of 1889 and other previous laws shall
obligation to make restoration or reparation for damages and govern rights originating, under said laws, from acts done or
indemnification for consequential damages devolves upon the events which took place under their regime, even though this
heirs of the person liable. Code may regulate them in a different manner, or may not
recognize them. But if a right should be declared for the first
The action to demand restoration, reparation, and time in this Code, it shall be effective at once, even though the
indemnification likewise descends to the heirs of the person act or event which gives rise thereto may have been done or
injured. may have occurred under prior legislation, provided said new
right does not prejudice or impair any vested or acquired right,
The heirs of the person liable has no obligation if restoration is not of the same origin. (Rule 1)
possible and the deceased left no property.
The second sentence of this article gives a retroactive effect to newly
D. Opening of Succesion created rights, provided they do not prejudice or impair any vested or
acquired right. Thus, compensation for damages under article 21 of
Art. 777. The rights to the succession are transmitted from the the new civil code, being a right declared for the first time, shall be
moment of the death of the decedent. (657a) effective at once, eventhough the acts giving rise thereto were done
before the effectivity of the new code. But the new successional
This article is criticized by some commentators. It is contended that rights granted by the new Civil code in favor of illegitimate children
the right to succeed to the properties of a person is not transmitted to cannot be given retroactive effect and be made to apply to the estate
anyone from the moment of the death of such person. What happens of a deceased who died before the effectivity of the new Civil Code,
is that the death of a person consolidates and renders immutable, in for the same would have the effect of impairing the vested rights of
a certain sense, rights which up to that moment were nothing but another who is deemed to have become the owner of the deceased’s
mere expectancy. These rights arise from the express will of the property upon the latter’s death during the regime of the old Civil
testator or from the provisions of the law, but they do not Code.
acquire solidity and effectiveness except from the moment of
death; before this event, the law may change, the will of the testator Art. 533. The possession of hereditary property is deemed
may vary, and even circumstances may be modified to such an transmitted to the heir without interruption and from the
extent that he who is expected to receive property may be deprived moment of the death of the decedent, in case the inheritance is
of it; but once death supervenes, the will of the testator becomes accepted.
immutable, the law as to the succession can no longer be changed,
disinheritance cannot be effected, and the rights to the succession One who validly renounces an inheritance is deemed never to
acquire a character of marked permanence. What the article really have possessed the same. (440)
means is that succession is opened by the death of the person from
whom the inheritance comes. The article relates to tacking of possession due to privity to relations.
By way of Example, A had been in possession of a piece of land,
The provision must therefore, be understood as meaning that the which he thought was his, for eight years, when he died. He left a
rights to the succession of a person are transmitted from the moment son, B, who continued to occupy and cultivate the land as
of his death, and by virtue of prior manifestations of his will or of administrator, while the settlement of the properties left by A was
causes predetermined by law. Two must be considered, therefore, pending. The proceedings in court for the settlement of the estate
the origin of the right, and that which makes the right effective. lasted three years; in these proceedings, B renounces his inheritance
from A. The next nearest relative of A, was C, a brother, who
It is clear that the moment of death is the determining point when the accepted the inheritance. Legally, B has never been in possession
heirs acquire a definite right to inheritance whether pure or
conditional. It is immaterial whether a short or long period of time 7
elapse between the death of the predecessor and the entry in the
possession of the properties of the inheritance, because the rights
are always deemed to retroact to the moment of death. The
possession of hereditary property is deemed transmitted to the heir
without interruption and from the moment of death of the decedent in
case the inheritance is accepted. The law avoids any gap to
- jann -
Wills & Succession/ Atty Uribe (6) When the donee has committed an act of
ingratitude as specified by the provisions of this Code
although he was materially or physically holding the property, while on donations in general. (1333a)
C, who had never set foot upon the land, is deemed to have been in
possession from the very moment that A died. So that, if later, a third Art. 390. After an absence of seven years, it being unknown
person appears to claim the property, C can assert ownership by whether or not the absentee still lives, he shall be presumed
prescription, because, legally, the possession has not been dead for all purposes, except for those of succession.
interrupted for eleven years, and ten years possession in good faith
is sufficient for prescription of ownership of real property. The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
Art. 1347. All things which are not outside the commerce of disappeared after the age of seventy-five years, an absence of
men, including future things, may be the object of a contract. All five years shall be sufficient in order that his succession may be
rights which are not intransmissible may also be the object of opened. (n)
contracts.
No contract may be entered into upon future inheritance except Art. 391. The following shall be presumed dead for all purposes,
in cases expressly authorized by law. including the division of the estate among the heirs:
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be the (1) A person on board a vessel lost during a sea
object of a contract. voyage, or an aeroplane which is missing, who has not
Sale of future inheritance is void except in cases of Donation Propter been heard of for four years since the loss of the
Nuptias (art. 84, NCC) and Partition Inter Vivos (art. 1080). vessel or aeroplane;
Ratio: 1. What an heir have is merely an inchoate right which does
not come to existence after death of predecessor. (2) A person in the armed forces who has taken part in
2. The amount or extent of inheritance cannot be exactly determined war, and has been missing for four years;
until death and after settlement thereof.
(3) A person who has been in danger of death under
Art. 1461. Things having a potential existence may be the object other circumstances and his existence has not been
of the contract of sale. known for four years. (n)
The efficacy of the sale of a mere hope or expectancy is deemed Art. 84. If the future spouses agree upon a regime other than the
subject to the condition that the thing will come into existence. absolute community of property, they cannot donate to each
other in their marriage settlements more than one-fifth of their
The sale of a vain hope or expectancy is void. present property. Any excess shall be considered void.
Art. 130. The future spouses may give each other in their Donations of future property shall be governed by the
marriage settlements as much as one-fifth of their present provisions on testamentary succession and the formalities of
property, and with respect to their future property, only in the wills. (130a)
event of death, to the extent laid down by the provisions of this
Code referring to testamentary succession. (1331a) These donations, unlike donations of present property which take
effect upon the celebration of the marriage, take effect upon the
Art. 131. The donor by reason of marriage shall release the death of the donor spouse. It cannot be made in the marriage
property donated from mortgages and all other encumbrances settlement but in a will or testament. Its limits are governed by the
upon the same, with the exception of easements, unless in the rules of testamentary succession provided by the Civil Code. Since a
marriage settlements or in the contracts the contrary has been will can be revoked by the testator at any time before his death the
stipulated. (1332a) donation propter nuptias of future property may be so revoked.
Persons other than the affianced parties cannot give donations
Art. 132. A donation by reason of marriage is not revocable, propter nuptial of future property.
save in the following cases:
Art. 86. A donation by reason of marriage may be revoked by
(1) If it is conditional and the condition is not complied the donor in the following cases:
with;
(1) If the marriage is not celebrated or judicially
(2) If the marriage is not celebrated; declared void ab initio except donations made in the
marriage settlements, which shall be governed by
(3) When the marriage takes place without the consent Article 81;
of the parents or guardian, as required by law;
(2) When the marriage takes place without the consent
(4) When the marriage is annulled, and the donee of the parents or guardian, as required by law;
acted in bad faith; thus, the implication of this ground is
that the donor in bad faith cannot revoke. (3) When the marriage is annulled, and the donee
acted in bad faith;
(5) Upon legal separation, the donee being the guilty
spouse; thus, the implication of this article is that the guilty (4) Upon legal separation, the donee being the guilty
donor spouse cannot revoke his donation. spouse;
- jann - (5) If it is with a resolutory condition and the condition
is complied with;
8
Wills & Succession/ Atty Uribe The law seeks to insure continuity in the ownership of the property,
without hiatus or gap, even for a moment, from the time of the death
(6) When the donee has committed an act of of the decedent.
ingratitude as specified by the provisions of the Civil
Code on donations in general. (132a) The old civil code prohibited acceptance or repudiation with a term.
Is it now allowed under the NCC? No conditional acceptance and
Art. 765. The donation may also be revoked at the instance of repudiation is still prohibited. To permit this kind of acceptance is and
the donor, by reason of ingratitude in the following cases: repudiation will be placing in uncertainty the transmission of rights by
succession. The power to impose conditions on the transmission is
(1) If the donee should commit some offense against inherent only in the testator himself, as a logical consequence of his
the person, the honor or the property of the donor, or freedom to dispose of his property. The person favored cannot
of his wife or children under his parental authority; subject the transmission to conditions because he has no right over
the property until he accepts the inheritance.
(2) If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude, even The very Nature of transmission of property by mortis causa argues
though he should prove it, unless the crime or the act against the validity of acceptance or repudiation with a term or
has been committed against the donee himself, his condition. The law seeks to insure continuity in the ownership of the
wife or children under his authority; property, without any hiatus or gap from the time of the death of the
decedent. Thus, to allow this would be contrary to the principle of
(3) If he unduly refuses him support when the donee is succession that inheritance is transmitted upon death.
legally or morally bound to give support to the donor.
(648a) Art. 1043. No person may accept or repudiate an inheritance
unless he is certain of the death of the person from whom he is
REQUISITES FOR THE TRANSMISSION OF SUCCESSIONAL to inherit, and of his right to the inheritance. (991)
RIGHTS
Requisites of acceptance: 1. certain of the death of the decedent, 2.
1. Express will of the testator or provision of law must survive the decedent, 3. must have capacity to succeed, and 4.
2. Death of the person whose property is subject of certain of his right to the inheritance.
succession Ratio: the will of man is changeable. Even just before the moment of
3. acceptance of the inheritance Art. 1041-1057 his death he may change his mind. A person who accepts from a
living person an inheritance accepts or repudiates nothing at all. If a
Express or tacit acceptance by the heir, devisee or legatee is person is uncertain of his right to inherit then his acceptance or
necessary to the perfection of the juridical relation in succession, and repudiation is ineffective.
indispensable to the transmission of successional rights. To make a
person succeed by the mere fact of death of the predecessor is to Art. 1044. Any person having the free disposal of his property
deny him the right to accept or repudiate the inheritance. However, a may accept or repudiate an inheritance.
previous declaration of heirship is not necessary in order that an heir
may assert his right to the property of the deceased. The acceptance Any inheritance left to minors or incapacitated persons may be
of the inheritance may, therefore, be said to be the confirmation of accepted by their parents or guardians. Parents or guardians
the institution of the heir, the perfection of the right to succeed. may repudiate the inheritance left to their wards only by judicial
authorization.
Art. 1041. The acceptance or repudiation of the inheritance is an
act which is purely voluntary and free. (988) The right to accept an inheritance left to the poor shall belong to
the persons designated by the testator to determine the
T: Acceptance is the act by which the person is called to succeed by beneficiaries and distribute the property, or in their default, to
universal title either by the testator or by law manifests his will of those mentioned in Article 1030. (992a)
making his own the universality of the rights and obligations which
are transmitted to him. Acceptance presupposes not only rights but sometimes also
obligations. Repudiation, on the otherhand, means alienation. Hence,
Repudiation is the manifestation by such heir of his desire not to persons having the capacity to succeed but not having the capacity
succeed to the said universality. to dispose of their property may not, therefore, accept or repudiate.
Their legal representatives may do so for them.
T: Is partial acceptance allowed? Under the old civil code a partial
acceptance or repudiation is prohibited, this prohibition was omitted Exception to paragraph 2; where the act would be purely beneficial to
in the NCC. Hence, it is submitted that in the light of the present law, the minor or incapacitated person, the intervention of the court is
inheritance can be accepted or repudiated partially. The argument unnecessary. But where the institution, devise or legacy is subject to
that the personality of the decedent cannot be continued in fraction a charge or condition to be performed by the minor or incapacitated
can no longer obtain in this jurisdiction. The heir in our law is not the beneficiary, we believe that the approval of the court should be
continuation of the personality of the deceased. He stands on the obtained. The minor should not be saddled with obligations without
same footing as a mere legatee in the Civil Code. If the latter may the approval of the guardianship court.
accept or repudiate partially, there is no legal reason why the heir
should not be allowed to do so. The greater right always includes the Repudiation amounts to alienation of property; hence, there must
less; if total acceptance or repudiation can be made, why not partial always be judicial authorization.
acceptance or repudiation? The argument that creditors of the estate
would be prejudiced by partial acceptance has no force; because, Art. 1045. The lawful representatives of corporations,
under our present laws, the creditors of the estate must first be paid associations, institutions and entities qualified to acquire
before it can be known whether ther is any inheritance left to be property may accept any inheritance left to the latter, but in
accepted or repudiated.
9
Art. 1042. The effects of the acceptance or repudiation shall
always retroact to the moment of the death of the decedent.
(989)
- jann -
Wills & Succession/ Atty Uribe T: The law considers the act of repudiation more solemn than the act
of acceptance; hence, the requirement of a public or authentic writing
order to repudiate it, the approval of the court shall be or one presented to the judge.The acceptance of an inheritance
necessary. (993a) confirms the transmission of the right, while repudiation makes this
transmission ineffective, producing thereby more violent and
Art. 1046. Public official establishments can neither accept nor disturbing consequences which the law cannot permit by mere
repudiate an inheritance without the approval of the implications or presumptions.
government. (994)
Public instrument refers to one notarized and duly acknowledged by
Refers to organizations which have their own social and public a notary. Authentic here refers to one whose genuinenessn is
purpose, such as for culture separate from the mere manifestation of admitted or clearly proved.
governmental functions of the State.
Art. 1052. If the heir repudiates the inheritance to the prejudice
Approval required by this article must be given by the head of the of his own creditors, the latter may petition the court to
department to which the public establishment belong or is authorize them to accept it in the name of the heir.
subordinated.
The acceptance shall benefit the creditors only to an extent
Art. 1047. A married woman of age may repudiate an inheritance sufficient to cover the amount of their credits. The excess,
without the consent of her husband. (995a) should there be any, shall in no case pertain to the renouncer,
but shall be adjudicated to the persons to whom, in accordance
Art. 1048. Deaf-mutes who can read and write may accept or with the rules established in this Code, it may belong. (1001)
repudiate the inheritance personally or through an agent.
Should they not be able to read and write, the inheritance shall The law seeks to protect the creditor. By the debtor-heir’s repudiation
be accepted by their guardians. These guardians may repudiate two are affected thereat. The co-heir who receives more and the
the same with judicial approval. (996a) creditor who is prejudiced thereby. The law favors the latter. The
acceptance by the creditor does not revoke the repudiation but only
Art. 1049. Acceptance may be express or tacit. rescinds the same to the extent sufficient to protect the interest of
the creditors.
An express acceptance must be made in a public or private
document. Requisites to entitle creditor to accept repudiated inheritance:
A tacit acceptance is one resulting from acts by which the 1. There must be a valid repudiation in accord with law as to
intention to accept is necessarily implied, or which one would from
have no right to do except in the capacity of an heir.
2. There must be existing credits
Acts of mere preservation or provisional administration do not 3. Judicial authorization must be obtained by creditors to
imply an acceptance of the inheritance if, through such acts, the
title or capacity of an heir has not been assumed. (999a) accept
4. The repudiation prejudices the ceditors.
Art. 1050. An inheritance is deemed accepted:
Exceptions:
(1) If the heirs sells, donates, or assigns his right to a
stranger, or to his co-heirs, or to any of them; 1. Creditors who became such after repudiation
2. inheritance is useless to the heir because the debt of the
(2) If the heir renounces the same, even though
gratuitously, for the benefit of one or more of his co- estate exceeds the inheritance left
heirs; 3. the heir-debtor is solvent and has sufficient properties to
(3) If he renounces it for a price in favor of all his co- cover his debt.
heirs indiscriminately; but if this renunciation should
be gratuitous, and the co-heirs in whose favor it is Art. 1053. If the heir should die without having accepted or
made are those upon whom the portion renounced repudiated the inheritance his right shall be transmitted to his
should devolve by virtue of accretion, the inheritance heirs. (1006)
shall not be deemed as accepted. (1000)
This is on the assumption that the heir of the heir who died accepts
Other acts of tacit acceptance: his inheritance from the latter. Then he may accept the inheritance
from the original decedent.
1. heir demands partition
2. alienates some of the inheritance Art. 1054. Should there be several heirs called to the
3. performs such acts which show the clear intent ot accept. inheritance, some of them may accept and the others may
4. Art. 1057, failure to signify to court one’s acceptance or repudiate it. (1007a)
repudiation within 30 days from distribution Art. 1055. If a person, who is called to the same inheritance as
an heir by will and ab intestato, repudiates the inheritance in his
Art. 1051. The repudiation of an inheritance shall be made in a capacity as a testamentary heir, he is understood to have
public or authentic instrument, or by petition presented to the repudiated it in both capacities.
court having jurisdiction over the testamentary or intestate
proceedings. (1008) Should he repudiate it as an intestate heir, without knowledge of
his being a testamentary heir, he may still accept it in the latter
- jann - capacity. (1009)
10
Wills & Succession/ Atty Uribe the death of the ancestor as completely as if the ancestor had
executed and delivered to them a deed for the same before his
T: The repudiation of the express will of the testator includes that of death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that
the presumed will, but the repudiation of the latter still leaves the moment, therefore, the rights of inheritance of Maria Uson over the
express will open to respect. lands in question became vested.
Ratio: An heir by will who repudiates the same, manifests his dislike The claim of the defendants that Maria Uson had relinquished her
to become an heir in any concept. By his act reveals the fact that he right over the lands in question because she expressly renounced to
does not deserve to become his successor even by intestacy. inherit any future property that her husband may acquire and leave
upon his death in the deed of separation they had entered into on
OTOH, when an heir repudiates as legal heir may later accept by will February 21, 1931, cannot be entertained for the simple reason that
on the reason that a person may not desire to succeed by intestacy future inheritance cannot be the subject of a contract nor can it be
but is willing to succeed by testamentary capacity in order to follow renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p.
the wishes of the dead. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531).
Art. 1056. The acceptance or repudiation of an inheritance, once But defendants contend that, while it is true that the four minor
made, is irrevocable, and cannot be impugned, except when it defendants are illegitimate children of the late Faustino Nebreda and
was made through any of the causes that vitiate consent, or under the old Civil Code are not entitled to any successional rights,
when an unknown will appears. (997) however, under the new Civil Code which became in force in June,
1950, they are given the status and rights of natural children and are
Other causes or revocation: entitled to the successional rights which the law accords to the latter
(Article 2264 and article 287, new Civil Code), and because these
1. one who accepts or repudiates who is not entitled to the successional rights were declared for the first time in the new code,
inheritance has no legal effect. they shall be given retroactive effect even though the event which
gave rise to them may have occurred under the prior legislation
2. when institution depends upon the fulfillment of a (Article 2253, new Civil Code).
suspensive condition which is not realized
There is no merit in this claim. Article 2253 above referred to
3. birth of a posthumous child not born or is born dead provides indeed that rights which are declared for the first time shall
have retroactive effect even though the event which gave rise to
Art. 1057. Within thirty days after the court has issued an order them may have occurred under the former legislation, but this is so
for the distribution of the estate in accordance with the Rules of only when the new rights do not prejudice any vested or
Court, the heirs, devisees and legatees shall signify to the court acquired right of the same origin. Thus, said article provides that
having jurisdiction whether they accept or repudiate the "if a right should be declared for the first time in this Code, it shall be
inheritance. effective at once, even though the act or event which gives rise
thereto may have been done or may have occurred under the prior
If they do not do so within that time, they are deemed to have legislation, provided said new right does not prejudice or impair any
accepted the inheritance. (n) vested or acquired right, of the same origin." As already stated in the
early part of this decision, the right of ownership of Maria Uson over
CASES: the lands in question became vested in 1945 upon the death of her
late husband and this is so because of the imperative provision of the
5. Uson vs. Del Rosario law which commands that the rights to succession are transmitted
from the moment of death (Article 657, old Civil Code). The new right
Maria Uson was the lawful wife of Faustino Nebreda who upon his recognized by the new Civil Code in favor of the illegitimate children
death in 1945 left the lands involved in this litigation. Faustino of the deceased cannot, therefore, be asserted to the impairment of
Nebreda left no other heir except his widow Maria Uson. However, the vested right of Maria Uson over the lands in dispute.
plaintiff claims that when Faustino Nebreda died in 1945, his As regards the claim that Maria Uson, while her deceased husband
common- law wife Maria del Rosario took possession illegally of said was lying in state, in a gesture of pity or compassion, agreed to
lands thus depriving her of their possession and enjoyment. assign the lands in question to the minor children for the reason that
they were acquired while the deceased was living with their mother
Defendants in their answer set up as special defense that on and Maria Uson wanted to assuage somewhat the wrong she has
February 21, 1931, Maria Uson and her husband, the late Faustino done to them, this much can be said; apart from the fact that this
Nebreda, executed a public document whereby they agreed to claim is disputed, we are of the opinion that said assignment, if any,
separate as husband and wife and, in consideration of their partakes of the nature of a donation of real property, inasmuch as it
separation, Maria Uson was given a parcel of land by way of alimony involves no material consideration, and in order that it may be valid it
and in return she renounced her right to inherit any other property shall be made in a public document and must be accepted either in
that may be left by her husband upon his death (Exhibit 1). After trial, the same document or in a separate one (Article 633, old Civil Code).
at which both parties presented their respective evidence, the court Inasmuch as this essential formality has not been followed, it results
rendered decision ordering the defendants to restore to the plaintiff that the alleged assignment or donation has no valid effect.
the ownership and possession of the lands in dispute without special Wherefore, the decision appealed from is affirmed, without costs.
pronouncement as to costs. Defendants interposed the present
appeal. 6. De Borja vs. De Borja
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful It is uncontested that Francisco de Borja, upon the death of his wife
wife of Faustino Nebreda, former owner of the five parcels of lands Josefa Tangco on 6 October 1940, filed a petition for the probate of
litigated in the present case. There is likewise no dispute that Maria her will which was docketed as Special Proceeding No. R-7866 of
del Rosario, one of the defendants-appellants, was merely a the Court of First Instance of Rizal, Branch I. The will was probated
common-law wife of the late Faustino Nebreda with whom she had on 2 April 1941. In 1946, Francisco de Borja was appointed executor
four illegitimate children, her now co-defendants. It likewise appears and administrator: in 1952, their son, Jose de Borja, was appointed
that Faustino Nebreda died in 1945 much prior to the effectivity of the co-administrator. When Francisco died, on 14 April 1954, Jose
new Civil Code. With this background, it is evident that when became the sole administrator of the testate estate of his mother,
Faustino Nebreda died in 1945 the five parcels of land he was seized Jose Tangco While a widower Francisco de Borja allegedly took unto
of at the time passed from the moment of his death to his only heir, himself a second wife, Tasiana Ongsingco. Upon Francisco's death,
his widow Maria Uson (Article 657, old Civil Code). As this Court Tasiana instituted testate proceedings in the Court of First Instance
aptly said, "The property belongs to the heirs at the moment of of Nueva Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to Francisco was
- jann - questioned in said proceeding.
11
Wills & Succession/ Atty Uribe capacity) disposing of her or his hereditary share immediately after
such death, even if the actual extent of such share is not determined
The relationship between the children of the first marriage and until the subsequent liquidation of the estate. 4 Of course, the effect
Tasiana Ongsingco has been plagued with several court suits and of such alienation is to be deemed limited to what is ultimately
counter-suits; including the three cases at bar, some eighteen (18) adjudicated to the vendor heir. However, the aleatory character of
cases remain pending determination in the courts. The testate estate the contract does not affect the validity of the transaction; neither
of Josefa Tangco alone has been unsettled for more than a quarter does the coetaneous agreement that the numerous litigations
of a century. In order to put an end to all these litigations, a between the parties (the approving order of the Rizal Court
compromise agreement was entered into on 12 October 1963, 2 by enumerates fourteen of them, Rec. App. pp. 79-82) are to be
and between "[T]he heir and son of Francisco de Borja by his first considered settled and should be dismissed, although such
marriage, namely, Jose de Borja personally and as administrator of stipulation, as noted by the Rizal Court, gives the contract the
the Testate Estate of Josefa Tangco," and "[T]he heir and surviving character of a compromise that the law favors, for obvious reasons, if
spouse of Francisco de Borja by his second marriage, Tasiana only because it serves to avoid a multiplicity of suits.
Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis
Panaguiton, Jr." It is likewise worthy of note in this connection that as the surviving
spouse of Francisco de Borja, Tasiana Ongsingco was his
On 16 May 1966, Jose de Borja submitted for Court approval the compulsory heir under article 995 et seq. of the present Civil Code.
agreement of 12 October 1963 to the Court of First Instance of Rizal, Wherefore, barring unworthiness or valid disinheritance, her
in Special Proceeding No. R-7866; and again, on 8 August 1966, to successional interest existed independent of Francisco de Borja's
the Court of First Instance of Nueva Ecija, in Special Proceeding No. last will and testament, and would exist even if such will were not
832. Tasiana Ongsingco Vda. de de Borja opposed in both probated at all. Thus, the prerequisite of a previous probate of the
instances. The Rizal court approved the compromise agreement, but will, as established in the Guevara and analogous cases, can not
the Nueva Ecija court declared it void and unenforceable. Special apply to the case of Tasiana Ongsingco Vda. de de Borja.
administratrix Tasiana Ongsingco Vda. de de Borja appealed the
Rizal Court's order of approval (now Supreme Court G.R. case No. This brings us to the plea that the Court of First In stance of Rizal
L-28040), while administrator Jose de Borja appealed the order of had no jurisdiction to approve the compromise with Jose de Borja
disapproval (G.R. case No. L-28568) by the Court of First Instance of (Annex A) because Tasiana Ongsingco was not an heir in the estate
Nueva Ecija. of Josefa Tangco pending settlement in the Rizal Court, but she was
an heir of Francisco de Borja, whose estate was the object of Special
The genuineness and due execution of the compromise agreement Proceeding No. 832 of the Court of First Instance of Nueva Ecija.
of 12 October 1963 is not disputed, but its validity is, nevertheless, This circumstance is irrelevant, since what was sold by Tasiana
attacked by Tasiana Ongsingco on the ground that: (1) the heirs Ongsingco was only her eventual share in the estate of her late
cannot enter into such kind of agreement without first probating the husband, not the estate itself; and as already shown, that eventual
will of Francisco de Borja; (2) that the same involves a compromise share she owned from the time of Francisco's death and the Court of
on the validity of the marriage between Francisco de Borja and Nueva Ecija could not bar her selling it. As owner of her undivided
Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to hereditary share, Tasiana could dispose of it in favor of whomsoever
have force and effect. she chose Such alienation is expressly recognized and provided for
by article 1088 of the present Civil Code:
In assailing the validity of the agreement of 12 October 1963,
Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Art. 1088. Should any of the heirs sell his hereditary rights to a
Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the stranger before the partition, any or all of the co-heirs may be
Court's majority held the view that the presentation of a will for subrogated to the rights of the purchaser by reimbursing him for the
probate is mandatory and that the settlement and distribution of an price of the sale, provided they do so within the period of one month
estate on the basis of intestacy when the decedent left a will, is from the time they were notified in writing of the sale of the vendor."
against the law and public policy. It is likewise pointed out by
appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Tasiana Ongsingco further argues that her contract with Jose de
Revised Rules explicitly conditions the validity of an extrajudicial Borja (Annex "A") is void because it amounts to a compromise as to
settlement of a decedent's estate by agreement between heirs, upon her status and marriage with the late Francisco de Borja. The point is
the facts that "(if) the decedent left no will and no debts, and the without merit, for the very opening paragraph of the agreement with
heirs are all of age, or the minors are represented by their judicial Jose de Borja (Annex "A") describes her as "the heir and surviving
and legal representatives . . ." The will of Francisco de Borja having spouse of Francisco de Borja by his second marriage, Tasiana
been submitted to the Nueva Ecija Court and still pending probate Ongsingco Vda. de de Borja", which is in itself definite admission of
when the 1963 agreement was made, those circumstances, it is her civil status. There is nothing in the text of the agreement that
argued, bar the validity of the agreement. would show that this recognition of Ongsingco's status as the
surviving spouse of Francisco de Borja was only made in
Upon the other hand, in claiming the validity of the compromise consideration of the cession of her hereditary rights.
agreement, Jose de Borja stresses that at the time it was entered
into, on 12 October 1963, the governing provision was Section 1, It is difficult to believe, however, that the amicable settlement
Rule 74 of the original Rules of Court of 1940, which allowed the referred to in the order and motion above-mentioned was the
extrajudicial settlement of the estate of a deceased person compromise agreement of 13 October 1963, which already had been
regardless of whether he left a will or not. He also relies on the formally signed and executed by the parties and duly notarized. What
dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. the record discloses is that some time after its formalization,
479, wherein was expressed the view that if the parties have already Ongsingco had unilaterally attempted to back out from the
divided the estate in accordance with a decedent's will, the probate compromise agreement, pleading various reasons restated in the
of the will is a useless ceremony; and if they have divided the estate opposition to the Court's approval of Annex "A" (Record on Appeal,
in a different manner, the probate of the will is worse than useless. L-20840, page 23): that the same was invalid because of the lapse of
the allegedly intended resolutory period of 60 days and because the
This provision evidences beyond doubt that the ruling in the Guevara contract was not preceded by the probate of Francisco de Borja's
case is not applicable to the cases at bar. There was here no attempt will, as required by this Court's Guevarra vs. Guevara ruling; that
to settle or distribute the estate of Francisco de Borja among the Annex "A" involved a compromise affecting Ongsingco's status as
heirs thereto before the probate of his will. The clear object of the wife and widow of Francisco de Borja, etc., all of which objections
contract was merely the conveyance by Tasiana Ongsingco of any have been already discussed.
and all her individual share and interest, actual or eventual, in the
estate of Francisco de Borja and Josefa Tangco. There is no It was natural that in view of the widow's attitude, Jose de Borja
stipulation as to any other claimant, creditor or legatee And as a should attempt to reach a new settlement or novatory agreement
hereditary share in a decedent's estate is transmitted or vested before seeking judicial sanction and enforcement of Annex "A", since
immediately from the moment of the death of such causante or the latter step might ultimately entail a longer delay in attaining final
predecessor in interest (Civil Code of the Philippines, Art. 777) 3
there is no legal bar to a successor (with requisite contracting 12
- jann -
Wills & Succession/ Atty Uribe declaration of their being heirs in the testate or intestate proceedings.
5 When Fortunata Barcena, therefore, died her claim or right to the
remedy. That the attempt to reach another settlement failed is parcels of land in litigation in Civil Case No. 856, was not
apparent from the letter of Ongsingco's counsel to Jose de Borja extinguished by her death but was transmitted to her heirs upon her
quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. death. Her heirs have thus acquired interest in the properties in
No. L-28040; and it is more than probable that the order of 21 litigation and became parties in interest in the case. There is,
September 1964 and the motion of 17 June 1964 referred to the therefore, no reason for the respondent Court to allow their
failure of the parties' quest for a more satisfactory compromise. But substitution as parties in interest for the deceased plaintiff.
the inability to reach a novatory accord can not invalidate the original
compromise (Annex "A") and justifies the act of Jose de Borja in 8. Bough vs. Modesto
finally seeking a court order for its approval and enforcement from
the Court of First Instance of Rizal, which, as heretofore described, 9. Borromeo-Herrera vs. Borromeo
decreed that the agreement be ultimately performed within 120 days
from the finality of the order, now under appeal. We conclude that in Vito Borromeo, a widower and permanent resident of Cebu City, died
so doing, the Rizal court acted in accordance with law, and, on March 13, 1952, in Parañaque, Rizal at the age of 88 years,
therefore, its order should be upheld, while the contrary resolution of without forced heirs but leaving extensive properties in the province
the Court of First Instance of Nueva Ecija should be, and is, of Cebu.
reversed.
On April 19, 1952, Jose Junquera filed with the Court of First
7. Bonilla vs. Barcena Instance of Cebu a petition for the probate of a one page document
as the last will and testament left by the said deceased, devising all
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio his properties to Tomas, Fortunato and Amelia, all surnamed
Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla, instituted Borromeo, in equal and undivided shares, and designating Junquera
a civil action in the Court of First Instance of Abra, to quiet title over as executor thereof. The case was docketed as Special Proceedings
certain parcels of land located in Abra. On August 4, 1975, the No. 916-R. The document, drafted in Spanish, was allegedly signed
defendants filed another motion to dismiss the complaint on the and thumbmarked by the deceased in the presence of Cornelio
ground that Fortunata Barcena is dead and, therefore, has no legal Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who acted
capacity to sue. Said motion to dismiss was heard on August 14, as witnesses.
1975. In said hearing, counsel for the plaintiff confirmed the death of
Fortunata Barcena and asked for substitution by her minor children Oppositions to the probate of the will were filed. On May 28, 1960,
and her husband, the petitioners herein; but the court after the after due trial, the probate court held that the document presented as
hearing immediately dismissed the case on the ground that a dead the will of the deceased was a forgery.
person cannot be a real party in interest and has no legal personality
to sue. On appeal to this Court, the decision of the probate court disallowing
the probate of the will was affirmed in Testate Estate of Vito
On August 28, 1975, the court denied the motion for reconsideration Borromeo, Jose H. Junquera, et al. v. Crispin Borromeo, et al. (19
filed by counsel for the plaintiff for lack of merit. On September 1, SCRA 656).
1975, counsel for deceased plaintiff filed a written manifestation
praying that the minors Rosalio Bonilla and Salvacion Bonilla be The testate proceedings was converted into an intestate
allowed to substitute their deceased mother, but the court denied the proceedings. Several parties came before the court filing claims or
counsel's prayer for lack of merit. From the order, counsel for the petitions alleging themselves as heirs of the intestate estate of Vito
deceased plaintiff filed a second motion for reconsideration of the Borromeo. On April 10, 1969, the trial court, invoking Art. 972 of the
order dismissing the complaint claiming that the same is in violation Civil Code, issued an order declaring the following, to the exclusion
of Sections 16 and 17 of Rule 3 of the Rules of Court but the same of all others, as the intestate heirs of the deceased Vito Borromeo:
was denied.
1.Jose Cuenco Borromeo 2.Judge Crispin Borromeo 3.Vitaliana
The Court reverses the respondent Court and sets aside its order
dismissing the complaint in Civil Case No. 856 and its orders denying Borromeo 4.Patrocinio Borromeo Herrera 5.Salud Borromeo
the motion for reconsideration of said order of dismissal. While it is
true that a person who is dead cannot sue in court, yet he can be 6.Asuncion Borromeo 7. Marcial Borromeo 8.Amelinda
substituted by his heirs in pursuing the case up to its completion. The
records of this case show that the death of Fortunata Barcena took Borromeo de Talam, and 9.The heirs of Canuto Borromeo
place on July 9, 1975 while the complaint was filed on March 31,
1975. This means that when the complaint was filed on March 31, The court also ordered that the assets of the intestate estate of Vito
1975, Fortunata Barcena was still alive, and therefore, the court had Borromeo shall be divided into 4/9 and 5/9 groups and distributed in
acquired jurisdiction over her person. If thereafter she died, the Rules equal and equitable shares among the 9 abovenamed declared
of Court prescribes the procedure whereby a party who died during intestate heirs.
the pendency of the proceeding can be substituted. Under Section
16, Rule 3 of the Rules of Court "whenever a party to a pending case Fortunato Borromeo filed a motion for reconsideration. In the
dies . . . it shall be the duty of his attorney to inform the court memorandum he submitted to support his motion for reconsideration,
promptly of such death . . . and to give the name and residence of his Fortunato changed the basis for his claim to a portion of the estate.
executor, administrator, guardian or other legal representatives." He asserted and incorporated a Waiver of Hereditary Rights dated
This duty was complied with by the counsel for the deceased plaintiff July 31, 1967, supposedly signed by Pilar N. Borromeo, Maria B.
when he manifested before the respondent Court that Fortunata Putong. Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo,
Barcena died on July 9, 1975 and asked for the proper substitution of Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion
parties in the case. Borromeo, Federico V. Borromeo, Consuelo B. Morales, Remedios
Alfonso and Amelinda B. Talam. In the waiver, five of the nine heirs
The respondent Court, however, instead of allowing the substitution, relinquished to Fortunato their shares in the disputed estate. The
dismissed the complaint on the ground that a dead person has no motion was opposed on the ground that the trial court, acting as a
legal personality to sue. This is a grave error. Article 777 of the Civil probate court, had no jurisdiction to take cognizance of the claim;
Code provides "that the rights to the succession are transmitted from that respondent Fortunato Borromeo is estopped from asserting the
the moment of the death of the decedent." From the moment of the waiver agreement; that the waiver agreement is void as it was
death of the decedent, the heirs become the absolute owners of his executed before the declaration of heirs; that the same is void having
property, subject to the rights and obligations of the decedent, and been executed before the distribution of the estate and before the
they cannot be deprived of their rights thereto except by the methods acceptance of the inheritance; and that it is void ab initio and
provided for by law. 3 The moment of death is the determining inexistent for lack of subject matter.
factor when the heirs acquire a definite right to the inheritance
whether such right be pure or contingent. 4 The right of the heirs to On December 24, 1974, after due hearing, the trial court concluding
the property of the deceased vests in them even before judicial that the five declared heirs who signed the waiver agreement
assigning their hereditary rights to Fortunato Borromeo had lost the
- jann - same rights, declared the latter as entitled to 5/9 of the estate of Vito
Borromeo.
13
Wills & Succession/ Atty Uribe document, is an heir of the deceased Vito Borromeo, entitled to
share in the estate.
In the present petition, the petitioner seeks to annul and set aside the
trial court's order dated December 24, 1974, declaring respondent This shows that the "Waiver of Hereditary Rights" was never meant
Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo to be what the respondent now purports it to be. Had the intent been
and the July 7, 1975 order, denying the motion for reconsideration. otherwise, there would not be any reason for Fortunato, Tomas, and
Amelia Borromeo to mention the heirs in the offer to settle the case
It is further argued by the petitioner that the document entitled amicably, and offer to concede to them parts of the estate of the
"Waiver of Hereditary Rights" executed on July 31, 1967, aside from deceased; (2) On April 21 and 30, 1969, the majority of the declared
having been cancelled and revoked on June 29, 1968, by Tomas L. heirs executed an Agreement on how the estate they inherited shall
Borromeo, Fortunato Borromeo and Amelia Borromeo, is without be distributed. This Agreement of Partition was approved by the trial
force and effect because there can be no effective waiver of court on August 15, 1969; (3) On June 29, 1968, the petitioner,
hereditary rights before there has been a valid acceptance of the among others, signed a document entitled Deed of Assignment"
inheritance the heirs intend to transfer. Pursuant to Article 1043 of purporting to transfer and assign in favor of the respondent and
the Civil Code, to make acceptance or repudiation of inheritance Tomas and Amelia Borromeo all her (Patrocinio B. Herrera's) rights,
valid, the person must be certain of the death of the one from whom interests, and participation as an intestate heir in the estate of the
he is to inherit and of his right to the inheritance. Since the petitioner deceased Vito Borromeo.
and her co-heirs were not certain of their right to the inheritance until
they were declared heirs, their rights were, therefore, uncertain. This The stated consideration for said assignment was P100,000.00; (4)
view, according to the petitioner, is also supported by Article 1057 of On the same date, June 29, 1968, the respondent Tomas, and
the same Code which directs heirs, devisees, and legatees to signify Amelia Borromeo (assignees in the aforementioned deed of
their acceptance or repudiation within thirty days after the court has assignment) in turn executed a "Deed of Reconveyance" in favor of
issued an order for the distribution of the estate. the heirs-assignors named in the same deed of assignment. The
stated consideration was P50,000.00; (5) A Cancellation of Deed of
Respondent Fortunato Borromeo on the other hand, contends that Assignment and Deed of Reconveyance was signed by Tomas
under Article 1043 of the Civil Code there is no need for a person to Borromeo and Amelia Borromeo on October 15, 1968, while
be first declared as heir before he can accept or repudiate an Fortunato Borromeo signed this document on March 24, 1969. In
inheritance. What is required is that he must first be certain of the view of the foregoing, the questioned order of the trial court dated
death of the person from whom he is to inherit and that he must be December 24, 1974, is hereby SET ASIDE.
certain of his right to the inheritance. He points out that at the time of
the signing of the waiver document on July 31, 1967, the signatories E. Kinds of Succesion
to the waiver document were certain that Vito Borromeo was already
dead as well as of their rights to the inheritance as shown in the Art. 778. Succession may be:
waiver document itself.
(1) Testamentary;
The prevailing jurisprudence on waiver of hereditary rights is that
"the properties included in an existing inheritance cannot be (2) Legal or intestate; or
considered as belonging to third persons with respect to the heirs,
who by fiction of law continue the personality of the former. Nor do (3) Mixed. (n)
such properties have the character of future property, because the
heirs acquire a right to succession from the moment of the death of Art. 779. Testamentary succession is that which results from the
the deceased, by principle established in article 657 and applied by designation of an heir, made in a will executed in the form
article 661 of the Civil Code. according to which the heirs succeed prescribed by law. (n)
the deceased by the mere fact of death. More or less, time may
elapse from the moment of the death of the deceased until the heirs B: Legal or Intestate succession is inexplicably not defined.
enter into possession of the hereditary property, but the acceptance Curiously, the draft code contained a definition of this kind of
in any event retroacts to the moment of the death, in accordance with succession but for some unknown reasons it was not included. It
article 989 of the Civil Code. The right is vested, although stated that an “Intestate succession takes place by operation of law
conditioned upon the adjudication of the corresponding hereditary in the absence of a valid will.”
portion." (Osorio v. Osorio and Ynchausti Steamship Co., 41 Phil.,
531). The heirs, therefore, could waive their hereditary rights in 1967 Art. 960. Legal or intestate succession takes place:
even if the order to partition the estate was issued only in 1969. (1) If a person dies without a will, or with a void will, or
one which has subsequently lost its validity;
In this case, however, the purported "Waiver of Hereditary Rights"
cannot be considered to be effective. For a waiver to exist, three (2) When the will does not institute an heir to, or
elements are essential: (1) the existence of a right; (2) the knowledge dispose of all the property belonging to the testator. In
of the existence thereof; and (3) an intention to relinquish such right. such case, legal succession shall take place only with
(People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120). The respect to the property of which the testator has not
intention to waive a right or advantage must be shown clearly and disposed;
convincingly, and when the only proof of intention rests in what a
party does, his act should be so manifestly consistent with, and (3) If the suspensive condition attached to the
indicative of an intent to, voluntarily relinquish the particular right or institution of heir does not happen or is not fulfilled, or
advantage that no other reasonable explanation of his conduct is if the heir dies before the testator, or repudiates the
possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil., 151, inheritance, there being no substitution, and no right
159). of accretion takes place;
The circumstances of this case show that the signatories to the (4) When the heir instituted is incapable of
waiver document did not have the clear and convincing intention to succeeding, except in cases provided in this Code.
relinquish their rights. Thus: (1) On October 27, 1967, Fortunato, (912a)
Tomas, and Amelia Borromeo filed a pleading entitled "Compliance"
wherein they submitted a proposal for the amicable settlement of the 14
case. In that Compliance, they proposed to concede to all the eight
(8) intestate heirs of Vito Borromeo all properties, personal and real,
including all cash and sums of money in the hands of the Special
Administrator, as of October 31, 1967, not contested or claimed by
them in any action then pending in the Court of First Instance of
Cebu. In turn, the heirs would waive and concede to them all the 14
contested lots. In this document, the respondent recognizes and
concedes that the petitioner, like the other signatories to the waiver
- jann -
Wills & Succession/ Atty Uribe himself, and of all relatives who, at the time of the acceptance of
the donation, are by law entitled to be supported by the donor.
T: A void will has no legal existence. Without such reservation, the donation shall be reduced in
petition of any person affected. (634a)
A void will and a will that later lost its validity are essentially the
same. The only difference between the two lies in the fact that the A donation of all the present property of the donor, without the
first refers to a will that has never been valid, but is null and void ab reservation of a sufficient amount for his subsistence, is not void, but
origine, ipso facto, while the second refers to a valid will which later only susceptible of reduction. It is voidable with respect to the
lost its validity. amount necessary for the support of the donor or his dependent
relatives.
Under Art. 841 a will is valid though there is no institution of heir. In
such cases the testamentary dispositions made in accordance with Art. 84. If the future spouses agree upon a regime other than the
law shall be carried out, and the remainder of the property shall pass absolute community of property, they cannot donate to each
to legal heirs. Absence of institution includes those institution which other in their marriage settlements more than one-fifth of their
are void. present property. Any excess shall be considered void.
Other causes of intestacy: Donations of future property shall be governed by the
provisions on testamentary succession and the formalities of
1. happening of a resolutory condition which sets aside the wills. (130a)
institution of the heir
These donations, unlike donations of present property which take
2. expiration of the resolutory term or period of institution of effect upon the celebration of the marriage, take effect upon the
an heir, legatee or devisee instituted up to a day certain death of the donor spouse. It cannot be made in the marriage
settlement but in a will or testament. Its limits are governed by the
3. noncompliance or the impossibility of complying with the rules of testamentary succession. Since a will can be revoked by the
will of the testator. testator at any time before his death the donation propter nuptias of
future property may be so revoked. Persons other than the affianced
4. Preterition which results to annulment of the institution of parties cannot give donations propter nuptias of future property.
an heir
There is no more contractual succession by virtue of the the repeal of
B: There are three instances contained in this paragraph, although, Article 130 of the Old Civil Code which was amended under Article
legally, the result is the same in each instance, i.e., there is no will. 84 of the Family Code. In mandating the applicability of the rules on
Succession to donation of future property between spouses, the law,
In par. 2 “validity” should read as “efficacy” therefore, eliminated this kind of succession. Hence, by implication
such type of succession under Article 84 is considered an ordinary
Intestacy may be total or partial depending on the extent of the testamentary succession.
disposition that turns out to be inoperative
TESTAMENTARY SUCCESSION
Art. 780. Mixed succession is that effected partly by will and
partly by operation of law. (n) II. WILLS
Art. 130. The future spouses may give each other in their A. Definition
marriage settlements as much as one-fifth of their present
property, and with respect to their future property, only in the Art. 783. A will is an act whereby a person is permitted, with the
event of death, to the extent laid down by the provisions of this formalities prescribed by law, to control to a certain degree the
Code referring to testamentary succession. disposition of this estate, to take effect after his death. (667a)
Art. 1347. All things which are not outside the commerce of Better definition:
men, including future things, may be the object of a contract. All A will is a personal, solemn, revocable, and free act by which a
rights which are not intransmissible may also be the object of capacitated person disposes of his property and rights and declares
contracts. or complies with the duties to take effect after his death.
No contract may be entered into upon future inheritance except T: A will is a specie of conveyance whereby a person is permitted,
in cases expressly authorized by law. with the formalities prescribed by law to control to a certain degree
disposition of his property to take effect after his death. However,
All services which are not contrary to law, morals, good when there is no disposition of property, it is submitted that, although
customs, public order or public policy may likewise be the the instrument may be considered as a will, it does not have to be
object of a contract. probated. All other relevant legal matters stated in the will may take
effect even without probating such as the acknowledgement of a
Art. 752. The provisions of Article 750 notwithstanding, no natural child.
person may give or receive, by way of donation, more than he
may give or receive by will. The donation shall be inofficious in A will is not necessarily an act of liberality or generosity. The
all that it may exceed this limitation. (636) inheritance may be so burdened with legacies that all benefit to the
heir is nullified.
The limitation imposed by this article applies to persons who have
compulsory heirs. The amount that can be donated depends upon B. Characteristics
the character of the compulsory heirs and the amount of property at
the time of the death of the donor. The donation itself is not a nullity, 1. purely personal act;
but only subject to reduction in so far as it exceeds what the donor 2. free act w/o fraud, violence, etc.
could have given by will to the donee. This amount is determinable 3. disposition of property
only at the time of the death of donor. 4. essentially revocable
Art. 750. The donations may comprehend all the present 15
property of the donor, or part thereof, provided he reserves, in
full ownership or in usufruct, sufficient means for the support of
- jann -
Wills & Succession/ Atty Uribe the testator, manifested by some outward and visible act or sign,
symbolic thereof.
5. formally executed
6. testator must have testamentary capacity Revocation vs. Nullity
7. Unilateral act and;
8. Mortis causa 1. act of testator 1. proceeds from law
Balane: 2. presupposes a valid act 2. inherent from the will
9. individual (Art. 818) 3. inter vivos 3. invoked After death
10. executed with animus testandi (Art. 783)
11. Statutory (Art. 783) 4. testator cannot renounce 4. can be disregarded by heirs
Art. 783. A will is an act whereby a person is permitted, with the B: This characteristic is consistent with the principle laid down in Art.
formalities prescribed by law, to control to a certain degree the 777, successional rights vest only upon death.
disposition of this estate, to take effect after his death. (667a)
Art. 796. All persons who are not expressly prohibited by law
B: The word “Act” is too broad and should have been limited to a may make a will. (662)
more specific term such as instrument or document in view of Art.
804 that every will must be in writing. T: The law presumes capacity to make a will, thus, one must be
The requirement of form prescribed respectively for attested and expressly be prohibited by law to be disqualified.
holographic wills.
The testator’s power of disposition is limited by the rules on Only natural persons may make a will. Juridical persons are not
legitimes. granted T.C.
Will making is purely statutory being defined as “permitted”. Even spendthrifths or prodigal under guardianship, can make a will.
A peson under civil interdiction can make a will, he is only
Art. 839. The will shall be disallowed in any of the following disqualified fro dispositions of property inter vivos, but not by act
cases: mortis causa.
(1) If the formalities required by law have not been Art. 797. Persons of either sex under eighteen years of age
complied with; cannot make a will. (n)
(2) If the testator was insane, or otherwise mentally The manner of computation of age, sustains the view that the
incapable of making a will, at the time of its execution; required age is reached at the commencement of the day preceeding
the anniversary of the birthday; that is, it is sufficient that the last day
(3) If it was executed through force or under duress, or of the eighteenth year shall have commenced. The law does not
the influence of fear, or threats; recognize fractions of a day and this construction is more in accord
with the liberal policy of the law to presume capacity to make will.
(4) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary or of some Art. 798. In order to make a will it is essential that the testator be
other person; of sound mind at the time of its execution. (n)
(5) If the signature of the testator was procured by T: Sound Mind is meant that the testator is able to execute his will
fraud; with an understanding of the nature of the act, such as the
recollection of the property he means to dispose of, of the persons
(6) If the testator acted by mistake or did not intend who are or who moght reasonably be the objects of his bounty and
that the instrument he signed should be his will at the the manner in which it is to be distributed among them. It is sufficient
time of affixing his signature thereto. (n) if he understands what he is about, even if he has less mental
capacity than would be required to make a contract.
B: This is an exclusive enumeration for the causes of disallowance of
a will. These are matters involved in the formal validity. A probate B: the legal importance and implication of mental capacity is that the
decree once final , forecloses any subsequent challenge on any of law is interested in the legal consequences of the testator’s mental
the matter enumerated in this article. capacity or incapacity not in the medical aspects of mental disease.
If any of these grounds is proved the will is void. A will is either valid Concievably, the testator could be mentally aberrant medically but
or void. If none of the defects are present the will is valid; if any testamentarily capable or, vice versa, mentally competent medically
defect is present the will is void. The issue on formal validity is what
the probate proceedings will determine. There is no such thing as a but testamentariy incompetent.
voidable will.
Art. 777. The rights to the succession are transmitted from the
Art. 828. A will may be revoked by the testator at any time moment of the death of the decedent. (657a)
before his death. Any waiver or restriction of this right is void.
(737a) B: the vesting of the successional right occurs immediately upon the
decedent’s death, without a moments interruption.
T: During the life of the testator the will is said to be ambulatory and
may be altered, revoked, or superseded at any time. Its is of no Art. 818. Two or more persons cannot make a will jointly, or in
possible effect as a will while the maker lives. the same instrument, either for their reciprocal benefit or for the
benefit of a third person. (669)
A will may be revoked at pleasure. Revocation is an act of the mind,
terminating the potential capacity of the will to operate at the death of T: A joint will is one where the same instrument is made the will of
two or more persons and is jointly signed by them. Such will may be
- jann - probate upon the death of one and subsequently probated again
upon the death of the other testator. Usually made to dispose joint
properties.
16
Wills & Succession/ Atty Uribe and the ff. may be delegated:
Mutual will, OTOH, may be defined as the separate wills of two 1. designation of persons, institutions, or establishments
persons, which are reciprocal in their provisions. A will that is both within the class or cause;
joint and mutual is one executed jointly by teo or more persons and
which shows on its face that the devises are made one in 2. the manner of distribution.
consideration of the other.
Art. 787. The testator may not make a testamentary disposition
Ratio for prohibition: in such manner that another person has to determine whether
or not it is to be operative. (n)
1. purely personal and unilateral characteristic of wills are
defeated C. Interpretation of Wills
2. contrary to the revocable character of wills, if one revokes Art. 788. If a testamentary disposition admits of different
the will no document is left for the other to revoke specially interpretations, in case of doubt, that interpretation by which
in cases were the revocation is done by destroying or the disposition is to be operative shall be preferred. (n)
tearing the will.
T: The presumption is that the testator intended a lawful rather than
3. may expose a testator to undue influence an unlawful thing, and courts will not seek an interpretation that will
4. may tempt one to kill the other testator nullify his will or any part thereof.That construction must be followed
5. against public policy which will sustatn and uphold the will in all its parts, if it can be done
6. Dimunition of Testamentary secrecy consistently with the established rules of law. If the will is susceptible
of two interpretations , the doubt must be resolved in favor of the
What is actually prohibited, therefore, is the execution of a will in a construction which will give effect to the will, rather than the one
SINGLE DOCUMENT and by ONE ACT. which will defeat it.
B: if there are separate documents, each serving one independent Art. 789. When there is an imperfect description, or when no
will, even if they are written on the same sheet or even back to back, person or property exactly answers the description, mistakes
they are not joint wills. and omissions must be corrected, if the error appears from the
context of the will or from extrinsic evidence, excluding the oral
Art. 784. The making of a will is a strictly personal act; it cannot declarations of the testator as to his intention; and when an
be left in whole or in part of the discretion of a third person, or uncertainty arises upon the face of the will, as to the application
accomplished through the instrumentality of an agent or of any of its provisions, the testator's intention is to be
attorney. (670a) ascertained from the words of the will, taking into consideration
the circumstances under which it was made, excluding such
T: The testator cannot substitute the mind or will of another for his oral declarations. (n)
own. But the mere mechanical act of drafting the will may be done by
a third person, inasmuch as such act does not constitute a T: The first part of this article pertains to patent or extrinsic ambiguity
delegation of the will or disposition. which appears upon the face of the instrument such as when the
testator gives a devise or legacy to “SOME of the six children of his
Art. 785. The duration or efficacy of the designation of heirs, cousin Juan”
devisees or legatees, or the determination of the portions which
they are to take, when referred to by name, cannot be left to the The second part pertains to latent or intrinsic ambiguity which cannot
discretion of a third person. (670a) be seen from a mere perusal or reading of the will but appears only
upon consideration of extrinsic circumstances, such as giving legacy
T: The matters mentioned in this article are testamentary in nature; to “my cousin Pedro”, when I fact he has two cousins named Pedro.
they constitute expressions of the will or disposition of the testator. Thus. It occurs when:
Hence, pursuant to Art. 784, it cannot be delegated.
1. two or more persons or things answer the name or
B: The ff. constitute the essence of will making or the exercise of the description;
disposing power, and thus, non-delegable:
2. misdescription of the beneficiary or the gift
1. the designation of heirs, devisees, legatees;
2. the duration or efficacy of such designation including such Extrinsic evidence is admissible to show the situation of the testator
and all the relevant facts and circumstances surrounding him at the
things as conditions, terms, substitutions time of making the will, for the purpose of explaining or resolving
3. the determination of the portions they are to recieve patent ambiguity.
Art. 786. The testator may entrust to a third person the B: method of resolving ambiguity, whether latent or patent is any
distribution of specific property or sums of money that he may evidence admissible and relevant excluding the oral declarations of
leave in general to specified classes or causes, and also the testator as to his intention.
designation of the persons, institutions or establishments to
which such property or sums are to be given or applied. (671a) Ratio for the exclusion: B: can a dead man refute a tale?
T: the third person here does not make any disposition, but simply T: the testator whose lips have been sealed by death can no longer
carries out details in the execution of the testamentary disposition deny or affirm the truth of what witnesses may say he declared,
made by the testator himself in the will. would create confusion and give rise to false claims.
B: for this article to take effect the testator must determine the ff: 17
1. the property or amount of money given and;
2. the class or cause to be benefited
- jann -
Wills & Succession/ Atty Uribe Art. 794. Every devise or legacy shall cover all the interest
which the testator could device or bequeath in the property
Art. 790. The words of a will are to be taken in their ordinary and disposed of, unless it clearly appears from the will that he
grammatical sense, unless a clear intention to use them in intended to convey a less interest. (n)
another sense can be gathered, and that other can be
ascertained. T: When the Testator does not state the extent of the interest that he
gives to the legatee or devisee in the property transmitted, it is
Technical words in a will are to be taken in their technical understood that his whole interest passes, no more no less. But the
sense, unless the context clearly indicates a contrary intention, testator, under the present article, may manifest his intention to
or unless it satisfactorily appears that he was unacquainted convey a less interest; and under article 929, he may expressly
with such technical sense. (675a) convey a larger interest. In such cases, the intention of the testator
will be followed.
Intent of the testator is the supreme law in succession. All rules of
construction are designed to ascertain and give effect to the intention Art. 930. The legacy or devise of a thing belonging to another
unless the latter is contrary to law, morals, and public policy. person is void, if the testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, though not
The words and provisions in the will must be plainly construed in belonging to the testator when he made the will, afterwards
order to avoid violations of his intentions and real purpose. becomes his, by whatever title, the disposition shall take effect.
(862a)
Wills drated by skilled persons or lawyers are to be construed with
strictness giving account to the word’s technical meaning, while The presumption under this article is that had the testator known the
words stated by persons not learned in the law are interpreted fact that another owns the property, he would not have made the
liberally and in their ordinary acceptation. Holographic wills usually legacy. The ignorance of the testator is presumed by law.
made by pesons not learned in the law should be construed liberally
in their ordinary acceptation foregoing the technical meaning in Its must be noted that if the subsequent change of ownership
pursuance of the policy of the law of preference on testacy than transferred the thing to the very person to whom it was being given
intestacy. as a devise or legacy, and by lucrative title, or to another third
person, the legacy is void.
Art. 791. The words of a will are to receive an interpretation
which will give to every expression some effect, rather than one Solla vs. Ascuenta
which will render any of the expressions inoperative; and of two
modes of interpreting a will, that is to be preferred which will Dña. Maria Solla died in June, 1883, in the municipality of Cabugao,
prevent intestacy. (n) Ilocos Sur, leaving a will executed and recorded in accordance with
the laws then in force, but which had not been probated in
Its to be presumed that every word or clause was intended by the accordance with the Code of Civil Procedure.
testator to have some meaning; and no word or clause should be There were named in said will, as legatees Sergio Solla, Cayetano
rejected if it is at all possible to give it reasonable effect. Where two Solla, Josefa Solla, Jacinto Serna, Rosenda Lagmay,
constructions are possible, the one disregarding a word or clause of Silvestra Sajor and Matias Sevedea, and Leandro Serrano, as
the will, and the other giving effect to the will as a whole, th latter universal heir, with their shares given them by the will above-
interpretation must be followed. mentioned.
Art. 792. The invalidity of one of several dispositions contained Said legatees or their descendants or heirs did not judicially claim
in a will does not result in the invalidity of the other their legacies during the life-time of Leandro Serrano, of which he had
dispositions, unless it is to be presumed that the testator would taken possession, neither was any testamentary proceeding instituted
not have made such other dispositions if the first invalid for the settlement of the estate left by Maria Solla and that Leandro
disposition had not been made. (n) Serrano did not deliver the legacies in question, which he possessed
in his name until his death, having declared the property for taxation
B: The article makes applicable to wills the severability or separability as his own and collected the income therefrom for himself.
principle in statutory construction frequently provided in a separability
clause. As may also be seen Leandro Serrano named his son Simeon
Serrano, as executor of his will and that he directed him to put all of
Art. 793. Property acquired after the making of a will shall only his property in order and to separate that which came from his
pass thereby, as if the testator had possessed it at the time of deceased grandmother Maria Solla, which he gives to his said son
making the will, should it expressly appear by the will that such Simeon Serrano and orders that same be disposed of exclusively in
was his intention. (n) conformity with the wishes of his said grandmother, not forgetting the
souls of all of his grandmother's relatives and of his own for whose
T: This article is inconsistent with the principle of inheritance laid repose nine masses were to be said annually during nine days, with
down under the code. The inheritance includes all the property, a solemn mass on the first and last days.
rights, and obligations not extinguished by death. To follow this In order to determine the testator's intention, the court should place
article would mean that only the property at the time of making the itself as near as possible in his position, and hence, where the
will shall be transmitted to the heir unless there is an express language of the will is ambiguous or doubtful, should take into
declaration under the will to include properties acquired before death consideration the situation of the testator and the facts and
of testator but after making the will. This contravenes Art. 777 of the circumstances surrounding him at the time the will was executed. (40
code. Cyc., 1392.) Where the testator's intention is manifest from the
context of the will and surrounding circumstances, but is obscured by
Hence, it must be construed as referring only to devises and legacies inapt and inaccurate modes of expression, the language will be
and not to inheritance. After all this article is under the chapter of subordinated to the intention, and in order to give effect to such
testamentary dispositions. The problem now arises with its intention, as far as possible, the court may depart from the strict
irreconcilable conflict with Art. 930. wording and read a word or phrase in a sense different from that
which is ordinarily attributed to it, and for such purpose may mould or
- jann - change the language of the will, such as restricting its application or
supplying omitted words or phrases. (40 Cyc., 1399.)
18
Wills & Succession/ Atty Uribe applied; if there is no stipulation on the matter, and the parties of the
same nationality, their national law shall be applied; if this is not the
In the present case, it clearly appearing that it was Maria Solla's case, the law of the place of perfection of the obligation shall govern
intention, in ordering her universal heir Leandro Serrano in her will at its fulfillment; but if these places are not specified and they cannot be
the hour of his death, to insist upon the compliance of her orders by deduced from the nature and circumstances of the obligation, then
his heirs, that the latter should comply with her pious orders and that the law of the domicile of the passive subjects shall apply.
she did not mean her orders concerning her legacies, the compliance
of which she had entrusted to Leandro Serrano, we are authorized to Art. 810. A person may execute a holographic will which must
restrict the application of the words "all that I have here ordered" be entirely written, dated, and signed by the hand of the testator
used by the said Maria Solla and the words "all her orders" used by himself. It is subject to no other form, and may be made in or
Leandro Serrano in their respective wills limiting them to the pious out of the Philippines, and need not be witnessed. (678, 688a)
orders and substituting the phrase "in regard to the annual masses"
after the words used by both testators, respectively. Art. 815. When a Filipino is in a foreign country, he is authorized
The trial court, therefore, committed an error in interpreting the order to make a will in any of the forms established by the law of the
of Leandro Serrano mentioned in his will as applicable to the country in which he may be. Such will may be probated in the
provisions of Maria Solla's will relative to the legacies and not to the Philippines. (n)
pious bequests exclusively.
The article follows the general rule that the law governing the formal
D. Law Governing Form vailidity of wills is the law of the place where it is executed. Yet a
Filipino may make will in a foreigh country in conformity with our laws
Art. 795. The validity of a will as to its form depends upon the and not of the place of execution. Article 816 and 817 shall govern.
observance of the law in force at the time it is made. (n)
Art. 816. The will of an alien who is abroad produces effect in
The general rule is that given in the present article, that the validity of the Philippines if made with the formalities prescribed by the
the execution of a will is controlled by the statute in force at the time law of the place in which he resides, or according to the
of execution; and a statute enacted subsequent to the execution and formalities observed in his country, or in conformity with those
prior to the death of the testator, changing the rules respecting the which this Code prescribes. (n)
form of the instrument, the capacity of the testator, and the like, has
no retrospective effect. Art. 817. A will made in the Philippines by a citizen or subject of
another country, which is executed in accordance with the law
However, the intrinsic validity of the will, although executed in the of the country of which he is a citizen or subject, and which
Philippines, is governed by the laws of the state or country of which might be proved and allowed by the law of his own country,
the testator was a citizen or subject at the time of his death. The shall have the same effect as if executed according to the laws
place of execution has no effect whatever upon the validity of the of the Philippines. (n)
provisions of the will.
If an alien executes a will in the Philippines, not in conformity with our
The law may be changed after the will has been made. The law, but in conformity with the law of his own state or country, the will
provisions may be valid at the time it was made but may be contrary can be probated in the Philippines.
to the law at the time of the death of the testator. In such case, the
law at the time of the death of the testator will apply. It is the law at Art. 818. Two or more persons cannot make a will jointly, or in
the time when the succession opens which must determine the the same instrument, either for their reciprocal benefit or for the
intrinsic validity of the provisions of the will, because it is at this time benefit of a third person. (669)
that the rights are transmitted to the heirs, devisees, or legatees.
A joint will is one where the same instrument is made the will of two
Art. 17. The forms and solemnities of contracts, wills, and other or more persons and is jointly signed by them. Such will may be
public instruments shall be governed by the laws of the country probate upon the death of one and subsequently probated again
in which they are executed. upon the death of the other testator. Usually made to dispose joint
properties.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign Mutual will, OTOH, may be defined as the separate wills of two
country, the solemnities established by Philippine laws shall be persons, which are reciprocal in their provisions. A will that is both
observed in their execution. joint and mutual is one executed jointly by teo or more persons and
which shows on its face that the devises are made one in
Prohibitive laws concerning persons, their acts or property, and consideration of the other.
those which have, for their object, public order, public policy
and good customs shall not be rendered ineffective by laws or Ratio for prohibition:
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a) a. purely personal and unilateral characteristic of wills are
defeated
Art. 18. In matters which are governed by the Code of
Commerce and special laws, their deficiency shall be supplied b. contrary to the revocable character of wills, if one revokes
by the provisions of this Code. (16a) the will no document is left for the other to revoke specially
in cases were the revocation is done by destroying or
Matters connected with the performance of contracts are regulated tearing the will.
by the law prevailing at the place of performance. Remedies, such as
the bringing of suit, admissibility of evidence, and the statute of c. may expose a testator to undue influence
limitations, depend upon the law of the place where the action is d. may tempt one to kill the other testator
brought. e. against public policy
In terms of the validity and effect of obligations, the following rules What is actually prohibited, therefore, is the execution of a will in a
shall be followed. First, the law designated by the parties shall be SINGLE DOCUMENT and by ONE ACT.
- jann - 19
Wills & Succession/ Atty Uribe 'while each of the testator is yet living, he or she will continue to
enjoy the fruits of the two lands aforementioned', the said two parcels
Art. 819. Wills, prohibited by the preceding article, executed by of land being covered by Tax No. 4676 and Tax No. 6677, both
Filipinos in a foreign country shall not be valid in the situated in sitio Bucao, barrio Lugo, municipality of Borbon, province
Philippines, even though authorized by the laws of the country of Cebu. Bernabe de la Cerna died on August 30, 1939, and the
where they may have been executed. (733a) aforesaid will was submitted to probate by said Gervasia and
Manuela before the Court of First Instance of Cebu which, after due
Fleumer vs. Hix publication as required by law and there being no opposition, heard
the evidence,
It is the theory of the petitioner that the alleged will was executed in
Elkins, West Virginia, on November 3, 1925, by Hix who had his The appealed decision correctly held that the final decree of probate,
residence in that jurisdiction, and that the laws of West Virginia entered in 1939 by the Court of First Instance of Cebu (when the
govern. To this end, there was submitted a copy of section 3868 of testator, Bernabe de la Cerna, died), has conclusive effect as to his
Acts 1882, c. 84 as found in West Virginia Code, Annotated, by last will and testament, despite the fact that even then the Civil Code
Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the already decreed the invalidity of joint wills, whether in favor of the
Director of the National Library. But this was far from a compliance joint testators, reciprocally, or in favor of a third party (Art. 669, old
with the law. The laws of a foreign jurisdiction do not prove Civil Code). The error thus committed by the probate court was an
themselves in our courts. The courts of the Philippine Islands are not error of law, that should have been corrected by appeal, but which
authorized to take judicial notice of the laws of the various States of did not affect the jurisdiction of the probate court, nor the conclusive
the American Union. Such laws must be proved as facts. (In re effect of its final decision, however erroneous. A final judgment
Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of rendered on a petition for the probate of a will is binding upon the
the law were not met. There was no showing that the book from whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of
which an extract was taken was printed or published under the Johnson, 39 Phil. 156); and public policy and sound practice demand
authority of the State of West Virginia, as provided in section 300 of that at the risk of occasional errors, judgment of courts should
the Code of Civil Procedure. Nor was the extract from the law become final at some definite date fixed by law. Interest rei publicae
attested by the certificate of the officer having charge of the original, ut finis sit litium (Dy Cay vs. Crossfield, 38 Phil. 521, and other cases
under the seal of the State of West Virginia, as provided in section cited in 2 Moran, Comments on the Rules of Court 1963 Ed., p. 322).
301 of the Code of Civil Procedure. No evidence was introduced to
show that the extract from the laws of West Virginia was in force at Petitioners, as heirs and successors of the late Bernabe de la Cerna,
the time the alleged will was executed. are concluded by the 1939 decree admitting his will to probate. The
contention that being void the will cannot be validated, overlooks that
While the appeal was pending submission in this court, the attorney the ultimate decision on whether an act is valid or void rests with the
for the appellant presented an unverified petition asking the court to courts, and here they have spoken with finality when the will was
accept as part of the evidence the documents attached to the probated in 1939. On this count, the dismissal of their action for
petition. One of these documents discloses that a paper writing partition was correct.
purporting to be the last will and testament of Edward Randolph Hix,
deceased, was presented for probate on June 8, 1929, to the clerk of But the Court of Appeals should have taken into account also, to
Randolph County, State of West Virginia, in vacation, and was duly avoid future misunderstanding, that the probate decree in 1939 could
proven by the oaths of Dana Wamsley and Joseph L. Madden, the only affect the share of the deceased husband, Bernabe de la Cerna.
subscribing witnesses thereto, and ordered to be recorded and filed. It could not include the disposition of the share of the wife, Gervasia
It was shown by another document that, in vacation, on June 8, Rebaca, who was then still alive, and over whose interest in the
1929, the clerk of court of Randolph County, West Virginia, conjugal properties the probate court acquired no jurisdiction,
appointed Claude W. Maxwell as administrator, cum testamento precisely because her estate could not then be in issue. Be it
annexo, of the estate of Edward Randolph Hix, deceased. In this remembered that prior to the Civil Code, a will could not be probated
connection, it is to be noted that the application for the probate of the during the testator's lifetime.
will in the Philippines was filed on February 20, 1929, while the
proceedings in West Virginia appear to have been initiated on June It follows that the validity of the joint will, in so far as the estate of the
8, 1929. These facts are strongly indicative of an intention to make wife was concerned, must be, on her death, reexamined and
the Philippines the principal administration and West Virginia the adjudicated de novo (from the beginning), since a joint will is
ancillary administration. However this may be, no attempt has been considered a separate will of each testator. Thus regarded, the
made to comply with the provisions of sections 637, 638, and 639 of holding of the Court of First Instance of Cebu that the joint will is one
the Code of Civil Procedure, for no hearing on the question of the prohibited by law was correct as to the participation of the deceased
allowance of a will said to have been proved and allowed in West Gervasia Rebaca in the properties in question, for the reasons
Virginia has been requested. There is no showing that the deceased extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil.
left any property at any place other than the Philippine Islands and 144, that explained the previous holding in Macrohon vs. Saavedra,
no contention that he left any in West Virginia. 51 Phil., 267. Therefore, the undivided interest of Gervasia Rebaca
should pass upon her death to her heirs intestate, and not
Reference has been made by the parties to a divorce purported to exclusively to the testamentary heir, unless some other valid will in
have been awarded Edward Randolph Hix from Annie Cousins Hix her favor is shown to exist, or unless she be the only heir intestate of
on October 8, 1925, in the State of West Virginia. The present said Gervasia. It is unnecessary to emphasize that the fact that joint
proceedings do not call for any specific pronouncements on the wills should be in common usage could not make them valid when
validity or invalidity of this alleged divorce.For all of the foregoing, the our Civil Codes consistently invalidated them, because laws are only
judgment appealed from will be affirmed, with the costs of this repealed by other subsequent laws, and no usage to the contrary
instance against the appellant.Villamor, Ostrand, Johns, Romualdez may prevail against their observance.
and Villa-Real, JJ., concur.
E. Law Governing Content
Dela Cerna vs. Potot
1. As to time
"It appears that on May 9, 1939, the spouses, Bernabe de la Cerna
and Gervasia Rebaca, executed a joint last will and testament in the Art. 2263. Rights to the inheritance of a person who died, with or
local dialect whereby they willed that 'our two parcels of land without a will, before the effectivity of this Code, shall be
acquired during our marriage together with all improvements thereon governed by the Civil Code of 1889, by other previous laws, and
shall be given to Manuela Rebaca, our niece, whom we have by the Rules of Court. The inheritance of those who, with or
nurtured since childhood, because God did not give us any child in without a will, die after the beginning of the effectivity of this
our union, Manuela Rebaca being married to Nicolas Potot', and that Code, shall be adjudicated and distributed in accordance with
- jann - 20
Wills & Succession/ Atty Uribe $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his
three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, and
this new body of laws and by the Rules of Court; but the Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing
testamentary provisions shall be carried out insofar as they may two items have been satisfied, the remainder shall go to his seven
be permitted by this Code. Therefore, legitimes, betterments, surviving children by his first and second wives, namely: Edward A.
legacies and bequests shall be respected; however, their Bellis, Henry A. Bellis, Alexander Bellis, and Anna Bellis Allsman,
amount shall be reduced if in no other manner can every Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal
compulsory heir be given his full share according to this Code. shares.
(Rule 12a)
Subsequently, or on July 8, 1958, Amos G. Bellis died, a resident of
The decisive fact which gives origin to the right of heirs, devisees San Antonio, Texas, U.S.A. His will was admitted to probate in the
and legatees is the death of the decedent. This is the basis of the Court of First Instance of Manila on September 15, 1958.
present article. Thus, the provisions of the new code relaxing the
rigidity of the rules of the old code regarding proof or recognition of The People's Bank and Trust Company, as executor of the will, paid
natural children, were held inapplicable to one claiming recognition all the bequests therein including the amount of $240,000.00 in the
and a share in the estate of the alleged natural father who died form of shares of stock to Mary E. Mallen and to the three (3)
before the new code went into effect. illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis, various amounts totalling P40,000.00 each in
2. As to successional rights satisfaction of their respective legacies, or a total of P120,000.00,
which it released from time to time according as the lower court
Art. 16. Real property as well as personal property is subject to approved and allowed the various motions or petitions filed by the
the law of the country where it is stipulated. latter three requesting partial advances on account of their respective
legacies.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis
successional rights and to the intrinsic validity of testamentary filed their respective oppositions to the project of partition on the
provisions, shall be regulated by the national law of the person ground that they were deprived of their legitimes as illegitimate
whose succession is under consideration, whatever may be the children and, therefore, compulsory heirs of the deceased.
nature of the property and regardless of the country wherein
said property may be found. (10a) Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable
the national law of the decedent, in intestate or testamentary
The distribution of the estate is governed by the law of the nation of successions, with regard to four items: (a) the order of succession;
the deceased; the present article applies in such case. It may involve
various questions such as: (b) the amount of successional rights; (c) the intrinsic validity of the
provisions of the will; and (d) the capacity to succeed. They provide
1. order of succession in intestacy that —
2. intrinsic validity of a will "Art 16. Real property as well as personal property is
subject to the law of the country where it is situated.
3. extent of property an heir is entitled
"However", intestate and testamentary successions,
4. capacity to succeed of heirs both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity
5. questions of preterition, disinheritance, and collation. of testamentary provisions, shall be regulated by the
national law of the person whose succession is under
In above cases, the national law of the decedent applies and the consideration, whatever may be the nature of the
ratio of which is stated by Dean Capistrano in this wise: property and regardless of the country wherein said
property may be found."
With regard to succession there is only one will, express in
testatmentary and presumed in intestate succession. The oneness "Art. 1039. Capacity to succeed is governed by
and universality of the inheritance cannot be divided or broken up
merely because of the different countries where the properties of the the law of the nation of the decedent."
estate are situated.
Appellants would however counter that Article 17, paragraph three,
The intrinsic validity of the provisions of the will of a foreigner who of the Civil Code, stating that —
dies in the Philippines is to be determined by the laws of his own
state or country, and not by those of the Philippines. The second "Prohibitive laws concerning persons, their acts or
paragraph of this article can only invoked when the deceased eas property, and those which have for their object public
vested with a descendible interest in property within the jurisdiction of order, public policy and good customs shall not be
the Philippines. rendered ineffective by laws, or judgments promulgated, or
by determinations or conventions agreed upon in a foreign
When a foreign law is invoked it must be proved. (fluemer vs. Hix) country."
In re the estate of Amos G. Bellis prevails as the exception to Art. 16, par. 2 of the Civil Code
aforequoted. This is not correct. Precisely, Congress deleted the
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas phrase, "notwithstanding the provisions of this and the next
and of the United States." By his first wife, Mary E. Mallen, whom he preceding article" when they incorporated Art. 11 of the old Civil
divorced, he had five legitimate children: Edward A. Bellis, George Code as Art. 17 of the new Civil Code, while reproducing without
Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander substantial change the second paragraph of Art. 10 of the old Civil
Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, Code as Art. 16 in the new. It must have been their purpose to make
who survived him, he had three legitimate children: Edwin G. Bellis, the second paragraph of Art. 16 a specific provision in itself which
Walter S. Bellis and Dorothy Bellis; and finally, he had three must be applied in testate and intestate successions. As further
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam indication of this legislative intent, Congress added a new provision,
Palma Bellis. under Art. 1039, which decrees that capacity to succeed is to be
governed by the national law of the decedent.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes, obligations, and It is therefore evident that whatever public policy or good customs
expenses of administration are paid for, his distributable estate may be involved in our system of legitimes, Congress has not
should be divided, in trust, in the following order and manner: (a) intended to extend the same to the succession of foreign nationals.
For it has specifically chosen to leave, inter alia, the amount of
- jann -
21
Wills & Succession/ Atty Uribe intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose
successional rights, to the decedent's national Law. Specific succession is under consideration, whatever may be the
provisions must prevail over general ones. nature of the property and regardless of the country
wherein said property may be found."
Appellants would also point out that the decedent executed two wills
— one to govern his Texas estate and the other his Philippine estate Art. 1039."Capacity to succeed is governed by the law of the nation
— arguing from this that he intended Philippine law to govern his of the decedent."
Philippine estate. Assuming that such was the decedent's intention in
executing a separate Philippine will, it would not alter the law, for as the law which governs Adoracion Campo's will is the law of
this Court ruled in Miciano vs. Brimo, 50 Phil. 867, 870, a provision in Pennsylvania, U.S.A., which is the national law of the decedent.
a foreigner's will to the effect that his properties shall be distributed in Although the parties admit that the Pennsylvania law does not
accordance with Philippine law and not with his national law, is illegal provide for legitimes and that all the estate may be given away by the
and void, for his national law cannot be ignored in regard to those testatrix to a complete stranger, the petitioner argues that such law
matters that Article 10 — now Article 16 — of the Civil Code states should not apply because it would be contrary to the sound and
said national law should govern. established public policy and would run counter to the specific
provisions of Philippine Law.
The parties admit that the decedent, Amos G. Bellis, was a citizen of
the State of Texas, U.S.A., and that under the laws of Texas, there It is a settled rule that as regards the intrinsic validity of the
are no forced heirs or legitimes. Accordingly, since the intrinsic provisions of the will, as provided for by Article 16 (2) and 1039 of the
validity of the provision of the will and the amount of successional Civil Code, the national law of the decedent must apply. This was
rights are to be determined under Texas law, the Philippine law on squarely applied in the case of Bellis v. Bellis (20 SCRA 358)
legitimes cannot be applied to the testacy of Amos G. Bellis. wherein we ruled:"It is therefore evident that whatever public policy
or good customs may be involved in our system of legitimes,
Cayetano vs. Leonides 129 SCRA 522 Congress has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter alia,
On January 31, 1977, Adoracion C. Campos died, leaving her father, the amount of successional rights, to the decedent's national law.
petitioner Hermogenes Campos and her sisters, private respondent Specific provisions must prevail over general ones.
Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the only compulsory III. TESTAMENTARY CAPACITY
heir, he executed an Affidavit of Adjudication under Rule 74, Section
I of the Rules of Court whereby he adjudicated unto himself the A. Who may make a will?
ownership of the entire estate of the deceased Adoracion Campos.
Art. 796. All persons who are not expressly prohibited by law
Eleven months after, on November 25, 1977, Nenita C. Paguia filed may make a will. (662)
a petition for the reprobate of a will of the deceased, Adoracion
Campos, which was allegedly executed in the United States and for Art. 797. Persons of either sex under eighteen years of age
her appointment as administratrix of the estate of the deceased cannot make a will. (n)
testatrix.
Art. 798. In order to make a will it is essential that the testator be
In her petition, Nenita alleged that the testatrix was an American of sound mind at the time of its execution. (n)
citizen at the time of her death and was a permanent resident of
4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the Art. 799. To be of sound mind, it is not necessary that the
testatrix died in Manila on January 31, 1977 while temporarily testator be in full possession of all his reasoning faculties, or
residing with her sister at 2167 Leveriza, Malate, Manila; that during that his mind be wholly unbroken, unimpaired, or unshattered
her lifetime, the testatrix made her last will and testament on July 10, by disease, injury or other cause.
1975, according to the laws of Pennsylvania, U.S.A., nominating
Wilfredo Barzaga of New Jersey as executor; that after the testatrix' It shall be sufficient if the testator was able at the time of
death, her last will and testament was presented, probated, allowed, making the will to know the nature of the estate to be disposed
and registered with the Registry of Wills at the County of of, the proper objects of his bounty, and the character of the
Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator testamentary act. (n)
who was appointed after Dr. Barzaga had declined and waived his
appointment as executor in favor of the former, is also a resident of B: requisite of sanity to execute a will is based on the testator’s ability
Philadelphia, U.S.A., and that therefore, there is an urgent need for to know three things:
the appointment of an administratrix to administer and eventually
distribute the properties of the estate located in the Philippines. 1. Nature of the estate to be disposed- the testator should
have a fairly accurate knowledge of what he owns.
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died Accurate should be understood in the relative sense. The
and left a will, which, incidentally has been questioned by the more one owns the less accurate is one’s knowledge of his
respondent, his children and forced heirs as, on its face patently null estate expected to be. Henry Sy might have a far less
and void, and a fabrication, appointing Polly Cayetano as the accurate picture of his economic empire than a poverty
executrix of his last will and testament. Cayetano, therefore, filed a stricken laborer.
motion to substitute herself as petitioner in the instant case which
was granted by the court on September 13, 1982. 2. Proper objects of his bounty- under ordinary
circumstances, the testator should know his relatives in the
ISSUE: Whether or not a compulsory heir may be validly excluded by proximate degrees. As the degree of relationship goes
a will executed by a foreign testator? further, it is less likely that he knows them.
HELD: YES 3. Character of the testamentary act- it is not required, in
order for this requisite to be present, that the testator know
RATIO: Although on its face, the will appeared to have preterited the the legal nature of a will with the erudition of a civilest. All
petitioner and thus, the respondent judge should have denied its that he need know is that the document he is executing is
reprobate outright, the private respondents have sufficiently one that disposes of his property upon death.
established that Adoracion was, at the time of her death, an
American citizen and a permanent resident of Philadelphia, T: Neither sickness, old age, deafness, senile debility, blindness, nor
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of poor memory is by itself sufficient to establish a presumption of lack
the Civil Code which respectively provide:
22
Art. 16 par. (2)."However, intestate and testamentary
successions, both with respect to the order of succession
and to the amount of successional rights and to the
- jann -
Wills & Succession/ Atty Uribe 3. guaranties the absolute secrecy of the testamentary disposition
because it is not witnessed.
of testamentary capacity, actual insanity need not exist in order that
a person may be said to lack testamentary capacity. It is enough that The disadvantages are:
the mental condition be such that there is want of understanding of
the nature and consequences of the disposition by will. 1. does not gauranty testamentary capacity of testator;
Art. 800. The law presumes that every person is of sound mind, 2. no protection against vices of consent which may not be known in
in the absence of proof to the contrary. case of death;
The burden of proof that the testator was not of sound mind at 3. due to faulty expression, it may not express the true will of the
the time of making his dispositions is on the person who testator;
opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be insane, 4. for the same reason, it can be easily concealed.
the person who maintains the validity of the will must prove that
the testator made it during a lucid interval. (n) May a blind testator make a valid holographic will? There is no
question as to notarial wills it being allowed under the law provided
Art. 801. Supervening incapacity does not invalidate an effective the will was read twice to the testator. As to holographic wills, it is
will, nor is the will of an incapable validated by the supervening submitted that it may be allowed. The testator, having written the
of capacity. (n) holographic will by his own hand, knows what it contains. He may
have learned to write before he became blind, or inspite of his
The capacity of the person who leaves a will is to be determined as blindness. This view has been sustained in Louisiana, where it has
of the time of execution of such will. Any prior or subsequent been held that blindness does not of itself prevent the making of a
incapacity will not affect the validity of the will. It will, however, in valid holographic.
cases of prior incapacity within 30 days from the making of the will
merely shift the burden of proof of capacity on the person A HW may be in any form, but the intent to dispose mortis causa
maintaining the validity of the will. (Art. 800) must clearly appear in the context.
Art. 802. A married woman may make a will without the consent What would be the effect of words written by another and inserted
of her husband, and without the authority of the court. (n) among the words written by the testator?
Art. 803. A married woman may dispose by will of all her 1. if insertion was made after execution bu w/o consent, such is
separate property as well as her share of the conjugal deemed not written;
partnership or absolute community property. (n)
2. if the insertion was after execution with the consent of testator, the
B. Supervening Incapacity will remains valid but the insertion void;
Art. 801. Supervening incapacity does not invalidate an effective 3. if insertion was after execution and validated by testator by his
will, nor is the will of an incapable validated by the supervening signature, the entire will is void because it is not wholly written by the
of capacity. (n) testator himself;
The capacity of the person who leaves a will is to be determined as 4. if insertion is contemporaneous to the execution the effect same
of the time of execution of such will. Any prior or subsequent as no. 3.
incapacity will not affect the validity of the will. It will, however, in
cases of prior incapacity within 30 days from the making of the will As to date, the day, month, and year on which the will was made
merely shift the burden of proof of capacity on the person should be indicated therein. The day and the month, however, may
maintaining the validity of the will. (Art. 800) be indicated by implication, so long as the designation leaves no
room for doubt as to exact date.
IV. SOLEMNITIES OF WILLS
A. Kinds of Wills The validity of the holographic will is defeated by the fact that part of
Art. 804. Every will must be in writing and executed in a the date is printed. Such as that written on a daily planner though the
language or dialect known to the testator. (n) contents are entirely written by the hand but the testator relied on the
date indicated on the planner, the same is still extrinsically void.
Art. 810. A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of the testator Signatures of witnesses to a HW will not invalidate the will, but will be
himself. It is subject to no other form, and may be made in or disregarded as a mere surplusage.
out of the Philippines, and need not be witnessed. (678, 688a)
B. Notarial Wiils
T: the following are the advantages of a holographic will: 1. General Requirements
Art. 804. Every will must be in writing and executed in a
1. simple and easy to make for those a) who have no means to language or dialect known to the testator. (n)
employ a lawyer, b)who are timid and wants to reread their wills
before signing, c) those who have only very little property to dispose Our law does not recognize nuncupative wills, which is one that is
not written, but orally declared by the testator in his last illness, in
2. It induces foreigners in this jurisdiction to set down their last
wishes; 23
- jann -
Wills & Succession/ Atty Uribe administration and preliminary injunction." Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina,
contemplation of death, and before a sufficient number of competent that the will was not duly executed and attested, that it was procured
witnesses. by means of undue influence employed by Marina and Marilyn and
that the thumb marks of the testatrix were procured by fraud or trick.
The above requirement applies to both holographic and notarial. In
notarial wills it is immaterial who performs the mechanical act writing About ten months later, in a verified complaint dated October
the will, so long as the testator signs it or has somebody sign his 12,1978, filed in this Court, Nenita charged Judge Honrado with
name in his presence upon his direction. having probated the fraudulent will of Marcelina. The complainant
reiterated her contention that the testatrix was illiterate as shown by
As to the language or dialect, when a will is executed in a certain the fact that she affixed her thumb mark to the will and that she did
province or locality, in the dialect currently used in such province or not know English, the language in which the will was written. (In the
locality, there arises a presumption that the testator knew the dialect decree of probate Judge Honrado did not make any finding that the
so used, in the absence of contrary evidence. It is not required that will was written in a language known to the testatrix).
the will express that the language is known by the testator it is a fact
which may be proved by evidence aliunde. Nenita further alleged that Judge Honrado, in spite of his knowledge
that the testatrix had a son named Agapito (the testatrix's supposed
The attestation clause of an ordinary will does not have to be written sole compulsory and legal heir), who was preterited in the will, did
in a language or dialect known to the testator. It is not part of the not take into account the consequences of such a preterition.
testamentary disposition. The language used in the attestation We hold that disciplinary action should be taken against respondent
clause does not even have to be known to the witness; it should, judge for his improper disposition of the testate case which might
however, be translated to them. have resulted in a miscarriage of justice because the decedent's
legal heirs and not the instituted heiress in the void will should have
Suroza vs. Hon. Honrado inherited the decedent's estate.
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army A judge may be criminally liable for knowingly rendering an unjust
(Philippine Scouts), Fort McKinley, married Marcelina Salvador in judgment or interlocutory order or rendering a manifestly unjust
1923 (p. 150, Spec. Proc. No. 7816). They were childless. They judgment or interlocutory order by reason of inexcusable negligence
reared a boy named Agapito who used the surname Suroza and who or ignorance (Arts. 204 to 206, Revised Penal Code)
considered them as his parents as shown in his 1945 marriage In this case, respondent judge, on perusing the will and noting that it
contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654, p. was written in English and was thumb marked by an obviously
148, Rollo of Testate Case showing that Agapito was 5 years old illiterate testatrix, could have readily perceived that the will is void.
when Mauro married Marcelina in 1923).
In the opening paragraph of the will, it was stated that English was a
Mauro died in 1942. Marcelina, as a veteran's widow, became a language "understood and known" to the testatrix. But in its
pensioner of the Federal Government. That explains why on her concluding paragraph, it was stated that the will was read to the
death she had accumulated some cash in two banks. testatrix "and translated into Filipino language." (p. 16, Record of
testate case) That could only mean that the will was written in a
Agapito and Nenita begot a child named Lilia who became a medical language not known to the illiterate testatrix and, therefore, it is void
technologist and went abroad. Agapito also became a soldier. He because of the mandatory provision of Article 804 of the Civil Code
was disabled and his wife Nenita was appointed as his guardian in that every will must be executed in a language or dialect known to
1953 when he was declared an incompetent in Special Proceedings the testator. Thus, a will written in English, which was not known to
No. 1807 of the Court of First Instance of Rizal, Pasig Branch I (p. the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52
16, Rollo of CA-G.R. No. 08654-R) Phil. 660)
In that connection, it should be noted that a woman named Arsenia The hasty preparation of the will is shown in the attestation clause
de la Cruz wanted also to be his guardian in another proceeding. and notarial acknowledgment where Marcelina Salvador Suroza is
Arsenia tried to prove that Nenita was living separately from Agapito repeatedly referred to as the "testator" instead of "testatrix."
and that she (Nenita) admitted to Marcelina that she was unfaithful to
Agapito (pp. 61-63, Record of testate case) Had respondent judge been careful and observant, he could have
Judge Bienvenido A. Tan dismissed the second guardianship noted not only the anomaly as to the language of the will but also
proceeding and confirmed Nenita's appointment as guardian of that there was something wrong in instituting the supposed
Agapito (p. 16, Rollo of CA case). Agapito has been staying in a granddaughter as sole heiress and giving nothing at all to her
veteran's hospital in San Francisco or Palo Alto, California (p. 87, supposed father who was still alive. Furthermore, after the hearing
Record) conducted by respondent deputy clerk of court, respondent judge
could have noticed that the notary was not presented as a witness.
On a date not indicated in the record, the spouses Antonio Sy and
Hermogena Talan begot a child named Marilyn Sy, who, when a few In spite of the absence of an opposition, respondent judge should
days old, was entrusted to Arsenia de la Cruz (apparently a girl friend have personally conducted the hearing on the probate of the will so
of Agapito) and who was later delivered to Marcelina Salvador that he could have ascertained whether the will was validly executed.
Suroza who brought her up as a supposed daughter of Agapito and Under the circumstances, we find his negligence and dereliction of
as her granddaughter (pp. 23-26, Rollo of CA-G.R. No. SP-08654-R). duty to be inexcusable.
Marilyn used the surname Suroza. She stayed with Marcelina but
was not legally adopted by Agapito. She married Oscar Medrano and 2. Specific Requirements
is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor
of Marina Paje, a resident of 7668 J.B. Roxas Street. Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
Marcelina supposedly executed a notarial will in Manila on July testator's name written by some other person in his presence,
23, 1973, when she was 73 years old. That will, which is in and by his express direction, and attested and subscribed by
English, was thumb marked by her. She was illiterate. Her three or more credible witnesses in the presence of the testator
letters in English to the Veterans Administration were also and of one another.
thumb marked by her (pp. 38-39, CA Rollo). In that will, Marcelina
bequeathed all her estate to her supposed granddaughter The testator or the person requested by him to write his name
Marilyn. and the instrumental witnesses of the will, shall also sign, as
On April 24, Nenita filed in the testate case an omnibus petition "to 24
set aside proceedings, admit opposition with counter-petition of
- jann -
Wills & Succession/ Atty Uribe Liberal approach; where the witnesses and the testator all sign in the
presence of one another, it is not essential that the testator sign first,
aforesaid, each and every page thereof, except the last, on the if the signing and the attestation be parts of the same transaction; in
left margin, and all the pages shall be numbered correlatively in such case, where the acts are substantially contemporaneous, it
letters placed on the upper part of each page. cannot be said that there is any substantial priority.
The attestation shall state the number of pages used upon The latter view is upheld by most courts. In the absence of proof to
which the will is written, and the fact that the testator signed the the contrary, it will be presumed that the testator signed first.
will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of Purpose of requiring presence of each other:
the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the 1. to prevent another paper being substituted for the will
testator and of one another. fraudulently;
If the attestation clause is in a language not known to the 2. so that each may be a witness of the other and;
witnesses, it shall be interpreted to them. (n) 3. to render fabrication of testimony more difficult.
T: The object of the solemnities surrounding the execution of wills is When testator is blind; when witness subscribe his will in the same
to close the door against bad faith and fraud, to avoid sunstitution of room or within reasonable close proximity and within his hearing,
wills and testaments and to gauranty their truth and authenticity. they subscribe in his presence. Evidently, the rule is that they should
Therefore the laws on this subject should be interpreted in such a be within the cognizance of his remaining senses, such that he
way as to attain these primordial ends. Both one must not lose sight knows what is being done.
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. The testator and witnesses must sign on the left margin of every
page, the failure of all of them to sign the left margin is a fatal defect
Signed by Testator
The purpose of numbering of pages is to afford a means for
Signing is making a sign, token, or emblem; and what that shall be determinig whether any sheet or page of the will has been removed.
depends upon the individual. The material thing is that the testator Except only when will was written on a single page.
made the mark to authenticate the writing as his will and whatever he
puts on it for that purpose will suffice. An attestation clause is a memorandum of facts attending the
execution of the will and is that part of the instrument wherein the
Attested and subscribed by witnesses witnesses certify that the instrument has been executed before them,
and the manner of execution.
Attestation is the act of the senses, subscription is the act of the
hand; one is mental, the other is mechanical. To attest a will is to The attestation clause duly signed is the best evidence as to date of
know that it is published a such, and to certify the facts required to signing
constitute an actual legal publication; but to subscribe a paper as a
will is only to write on the paper the names of the witnesses, for the The law does not require the attestation to be contained in a single
sole purpose of identification. To attest as witness to a will is clause. Thus, where a will did not contain a separate independent
therefore to observe, perceive, discern, and take notice of what is attestation clause, but the concluding paragraph of the body of the
done in executing a will. The witness subscribe with his hand, and will was written in the tenor of an attestation, stating the facts
attest with his eyes and ears. required by law to be set forth in an attestation clause, and the
penultimate paragraph of the will stated the number of pages used, it
Purpose of attesting and subscribing: was held to be sufficient though in the first person and signed by the
testator provided it was signed by the witnesses.
1. identification of the instrument;
2. protection of testator fraud and deception and other vices Any failure to state a material fact in the attestation clause will render
the will null and void. Oral evidence will not cure any alleged defect
of consent; because the statute of frauds does not apply to wills. The statute
3. to ascertain the TC of the testator relates to contracts and agreement only this may be cured by the
oral ratification of the parties.
the witnesses need not even know the contents of the will because
what they attest to is the due execution and the signing of the Date- in an ordinary will date is not an essential part. Only HW
testator. requires a date. Neither a statement of the place of execution is
required and the absence of both facts does not invalidate the will.
It is presumed that a witness has the qualifications prescribed by law,
unless the contrary is established. His credibility depends upon the Art. 806. Every will must be acknowledged before a notary
appreciation of his testimony and arises from the belief and public by the testator and the witnesses. The notary public shall
appreciation of the court that he is telling the truth. His competency not be required to retain a copy of the will, or file another with
arise or is required to exist at the time of execution of the will. the Office of the Clerk of Court. (n)
As to order of signing, there are two views: T: This article applies only to ordinary or attested wills. It has no
application to a holographic will which does not have to be
Strict approach; The general rule has been, that everything required witnessed. Since acknowledgement before a notary public must be
to be done by the testator in the execution of a will shall precede in made by the testator and the witness, it is obvious that the law
point of time the subscription by the attesting witness, and if the contemplates only ordinary wills.
signatures of the latter precede the signing by the testator there is no
proper attestation, and the will is void, for until the testator has 25
signed, there is no will and nothing to attest.
- jann -
Wills & Succession/ Atty Uribe (Sgd.) "NUMERIANO EVANGELISTA (Sgd.)
(Sgd.) ROSENDO CORTES
The signing of the will by the testator and the witnesses, and the BIBIANA ILLEGIBLE"
acknowledgement of said will before a notary public need not be
done in a single act unlike the in the old code because his presence The will appears to have been signed by Atty. Florentino Javier who
is required due to the fact that he prepares the will. Under the wrote the name of Antero Mercado, followed below by "A ruego del
present code, it is enough that the testator and witnesses testador" and the name of Florentino Javier. Antero Mercado is
acknowledge to him its execution for such acknowledgement is alleged to have written a cross immediately after his name. The
indispensable for the validity of the will. An interval of time may Court of Appeals, reversing the judgment of the Court of First
elapse between the actual signing of the will and the Instance of Ilocos Norte, ruled that the attestation clause failed (1) to
acknowledgement before the notary public. It is important also that certify that the will was signed on all the left margins of the three
testamentary capacity must exist also at the time of pages and at the end of the will by Atty. Florentino Javier at the
acknowledgement, because this is an essential part of the execution express request of the testator in the presence of the testator and
of the will. each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's
The purpose of acknowledgement is to minimize fraud and undue request said testator has written a cross at the end of his name and
pressure and this purpose can be attained whether on the left margin of the three pages of which the will consists and at
acknowledgement takes place at the same time at same time as the the end thereof; (3) to certify that the three witnesses signed the will
signing or at some time thereafter. in all the pages thereon in the presence of the testator and of each
other.
The prohibition under this article on the retention of a copy by the
notary is grounded on the desire of the testator to safeguard the In our opinion, the attestation clause is fatally defective for failing to
secrecy of the contents of the will during the lifetime of the testator so state that Antero Mercado caused Atty. Florentino Javier to write the
he will not be the object of importunities or pressure to change his testator's name under his express direction, as required by section
will on the part of designing persons or relatives, or it may be that the 618 of the Code of Civil Procedure. The herein petitioner (who is
testator wants to keep the secret of the will during his lifetime. appealing by way of certiorari from the decision of the Court of
Appeals) argues, however, that there is no need for such recital
B: Special Requirements of attested wills are as follows because the cross written by the testator after his name is a sufficient
signature and the signature of Atty. Florentino Javier is a surplusage.
1. subscribed by the testator or his agent in his presence and Petitioner's theory is that the cross is as much a signature as a
by his express direction at the end thereof, in the presence thumbmark, the latter having been held sufficient by this Court in the
of the witnesses cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs.
Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs.
2. attested and subscribed by at least three credible Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
witnesses in the presence of the testator and of one
another; It is not here pretended that the cross appearing on the will is the
usual signature of Antero Mercado or even one of the ways by which
3. the testator or his agent must sign every page except the he signed his name. After mature reflection, we are not prepared to
last, on the left margin in the presence of the witnesses; liken the mere sign of a cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the trustworthiness of
4. the witnesses must sign every page except last, on the left a thumbmark.
margin in the presence of the testator and of one another;
What has been said makes it unnecessary for us to determine
5. all pages numbered correlatively in letters above page; whether there is a sufficient recital in the attestation clause as to the
6. attestation clause stating: signing of the will by the testator in the presence of the witnesses,
and by the latter in the presence of the testator and of each other.
a. number of pages; Wherefore, the appealed decision is hereby affirmed, with costs
b. testator or his agent under his direction signed against the petitioner. So ordered.
the will and every page thereof, in the presence Balona vs. Abellana
of the witnesses;
c. the witnesses witnessed and signed evry page Appeal from a decision of the Court of First Instance of Zamboanga
in the presence of testator and of one another; City admitting to probate the will of one Anacleta Abellana.
7. acknowledged before a notary public "It appears on record that the last Will and Testament
(Exhibit 'A'), which is sought to be probated, is written in
Garcia vs. la Cuesta the Spanish language and consists of two (2) typewritten
pages (pages 4 and 5 of the record) double space. The
This is an appeal from a decision of the Court of Appeals disallowing first page is signed by Juan Bello and under his name
the will of Antero Mercado dated January 3, 1943. The will is written appears typewritten 'Por la testadora Anacleta Abellana,
in the Ilocano dialect and contains the following attestation clause: residence Certificate A-1167629, Enero 20, 1951, Ciudad
de Zamboanga', and on the second page appears the
"We, the undersigned, by these presents do declare that signature of the three (3) instrumental witnesses Blas
the foregoing testament of Antero Mercado was signed by Sebastian, Faustino Macaso and Rafael Ignacio, at the
himself and also by us below his name and of this bottom of which appears the signature of T. de los Santos
attestation clause and that of the left margin of the three and below his signature is his official designation as the
pages thereof. Page three the continuation of this notary public who notarized the said testament. On the first
attestation clause; this will is written in Ilocano dialect page on the left margin of the said instrument also appear
which is spoken and understood by the testator, and it the signatures of the instrumental witnesses. On the
bears the corresponding number in letter which compose second page, which is the last page of the said last Will
of three pages and all of them were signed in the presence and Testament, also appears the signature of the three (3)
of the testator and witnesses, and the witnesses in the instrumental witnesses and on that second page on the left
presence of the testator and all and each and every one of margin appears the signature of Juan Bello under whose
us witnesses. name appears handwritten the following phrase, 'Por la
Testadora Anacleta Abellana'. The will is duly
"In testimony, whereof, we sign this testament, this the
third day of January, one thousand nine hundred forty 26
three, (1943) A.D.
- jann -
Wills & Succession/ Atty Uribe case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that
one of the subscribing witnesses was in the outer room when the
acknowledged before Notary Public, Attorney Timoteo de testator and the other describing witnesses signed the instrument in
los Santos." (Italics supplied.) the inner room, had it been proven, would not be sufficient in itself to
The present law, Article 805 of the Civil Code, in part provides as invalidate the execution of the will. But we are unanimously of
follows: opinion that had this subscribing witness been proven to have been
in the outer room at the time when the testator and the other
"Every will, other than a holographic will, must be subscribing witnesses attached their signatures to the instrument in
subscribed at the end thereof by the testator himself or by the inner room, it would have been invalid as a will, the attaching of
the testator's name written by some other person in his those signatures under circumstances not being done "in the
presence, and by his express direction, and attested and presence" of the witness in the outer room. This because the line of
subscribed by three or more credible witnesses in the vision from this witness to the testator and the other subscribing
presence of the testator and of one another." (Italics witnesses would necessarily have been impeded by the curtain
supplied.) separating the inner from the outer one "at the moment of inscription
Note that the old law as well as the new require that the testator of each signature."
himself sign the will, or if he cannot do so, the testator's name must
be written by some other person in his presence and by his express In the case just cited, on which the trial court relied, we held that:
direction. Applying this provision this Court said in the case of Ex
Parte Pedro Arcenas, et al., 4 Phil., 700: "The true test of presence of the testator and the
witnesses in the execution of a will is not whether they
"It will be noticed from the above-quoted section 618 of the actually saw each other sign, but whether they might have
Code of Civil Procedure that where the testator does not been seen each other sign, had they chosen to do so,
know how, or is unable, to sign, it will not be sufficient that considering their mental and physical condition and
one of the attesting witnesses signs the will at the position with relation to each other at the moment of
testator's request, the notary certifying thereto as provided inscription of each signature."
in article 695 of the Civil Code, which, in this respect, was
modified by section 618 above referred to, but it is But it is especially to be noted that the position of the parties with
necessary that the testator's name be written by the relation to each other at the moment of the subscription of each
person signing in his stead in the place where he would signature, must be such that they may see each other sign if they
have signed if he knew how or was able so to do, and this choose to do so. This, of course, does not mean that the testator and
in the testator's presence and by his express direction; so the subscribing witnesses may be held to have executed the
that a will signed in a manner different than that prescribed instrument in the presence of each other if it appears that they would
by law shall not be valid and will not be allowed to be not have been able to see each other sign at that moment, without
probated. changing their relative positions or existing conditions. The evidence
The same ruling was laid down in the case of Cuison vs. in the case relied upon by the trial judge discloses that "at the
Concepcion, 5 Phil., 552. In the case of Barut vs. Cabacungan, 21 moment when the witness Javellana signed the document he was
Phil., 461, we held that the important thing is that it clearly appears actually and physically present and in such position with relation to
that the name of the testatrix was signed at her express direction; it Jaboneta that he could see everything that took place by merely
is unimportant whether the person who writes the name of the casting his eyes in the proper direction and without any physical
testatrix signs his own or not. Cases of the same import are as obstruction to prevent his doing so." And the decision merely laid
follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs. Domingo, down the doctrine that the question whether the testator and the
27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489). subscribing witnesses to an alleged will sign the instrument in the
presence of each other does not depend upon proof of the fact that
In the case at bar the name of the testatrix, Anacleta Abellana, does their eyes were actually cast upon the paper at the moment of its
not appear written under the will by said Abellana herself, or by Dr. subscription by each of them, but that at that moment existing
Juan Abello. There is, therefore, a failure to comply with the express conditions and their position with relation to each other were such
requirement in the law that the testator must himself sign the will, or that by merely casting the eyes in the proper direction they could
that his name be affixed thereto by Some other person in his have seen each other sign. To extend the doctrine further would
presence and by his express direction. It appearing that the above open the door to the possibility of all manner of fraud, substitution,
provision of the law has not been complied with, we are constrained and the like, and would defeat the purpose for which this particular
to declare that the said will of the deceased Anacleta Abellana may condition is prescribed in the code as one of the requisites in the
not be admitted to probate. execution of a will.
Nera vs. Rimando The decree entered by the court below admitting the instrument
propounded therein to probate as the last will and testament of Pedro
The only question raised by the evidence in this case as to the due Rimando, deceased, is affirmed with costs of this instance against
execution of the instrument propounded as a will in the court below, the appellant.
is whether one of the subscribing witnesses was present in the small
room where it was executed at the time when the testator and the Garcia vs. la Cuesta
other subscribing witnesses attached their signatures; or whether at
that time he was outside, some eight or ten feet away, in a large This is an appeal from a decision of the Court of Appeals disallowing
room connecting with the smaller room by a doorway, across which the will of Antero Mercado dated January 3, 1943. The will is written
was hung a curtain which made it impossible for one in the outside in the Ilocano dialect and contains the following attestation clause:
room to see the testator and the other subscribing witnesses in the
act of attaching their signatures to the instrument. "We, the undersigned, by these presents do declare that
the foregoing testament of Antero Mercado was signed by
A majority of the members of the court is of opinion that this himself and also by us below his name and of this
subscribing witness was in the small room with the testator and the attestation clause and that of the left margin of the three
other subscribing witnesses at the time when they attached their pages thereof. Page three the continuation of this
signatures to the instrument, and this finding, of course, disposes of attestation clause; this will is written in Ilocano dialect
the appeal and necessitates the affirmance of the decree admitting which is spoken and understood by the testator, and it
the document to probate as the last will and testament of the bears the corresponding number in letter which compose
deceased. of three pages and all of them were signed in the presence
of the testator and witnesses, and the witnesses in the
The trial judge does not appear to have considered the determination
of this question of fact of vital importance in the determination of this 27
case, as he was of opinion that under the doctrine laid down in the
- jann -
Wills & Succession/ Atty Uribe The trial court, thru then Presiding Judge Ramon C. Pamatian issued
the questioned order denying the probate of the will of Dorotea Perez
presence of the testator and all and each and every one of for want of a formality in its execution. In the same order, the
us witnesses. petitioner was also required to submit the names of the intestate
heirs with their corresponding addresses so that they could be
"In testimony, whereof, we sign this testament, this the properly notified and could intervene in the summary settlement of
third day of January, one thousand nine hundred forty the estate.
three, (1943) A.D.
The respondent Judge interprets the above-quoted provision of law
(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) to require that, for a notarial will to be valid, it is not enough that only
(Sgd.) ROSENDO CORTES the testatrix signs at the "end" but all the three subscribing witnesses
BIBIANA ILLEGIBLE" must also sign at the same place or at the end, in the presence of the
testatrix and of one another because the attesting witnesses to a will
The will appears to have been signed by Atty. Florentino Javier who attest not merely the will itself but also the signature of the testator. It
wrote the name of Antero Mercado, followed below by "A ruego del is not sufficient compliance to sign the page, where the end of the
testador" and the name of Florentino Javier. Antero Mercado is will is found, at the left hand margin of that page.
alleged to have written a cross immediately after his name. The
Court of Appeals, reversing the judgment of the Court of First On the other hand, the petitioner maintains that Article 805 of the
Instance of Ilocos Norte, ruled that the attestation clause failed (1) to Civil Code does not make it a condition precedent or a matter of
certify that the will was signed on all the left margins of the three absolute necessity for the extrinsic validity of the will that the
pages and at the end of the will by Atty. Florentino Javier at the signatures of the subscribing witnesses should be specifically located
express request of the testator in the presence of the testator and at the end of the will after the signature of the testatrix. He contends
each and every one of the witnesses; (2) to certify that after the that it would be absurd that the legislature intended to place so
signing of the name of the testator by Atty. Javier at the former's heavy an import on the space or particular location where the
request said testator has written a cross at the end of his name and signatures are to be found as long as this space or particular location
on the left margin of the three pages of which the will consists and at wherein the signatures are found is consistent with good faith and
the end thereof; (3) to certify that the three witnesses signed the will the honest frailties of human nature.
in all the pages thereon in the presence of the testator and of each
other. For the validity of a formal notarial will, does Article 805 of the Civil
Code require that the testatrix and all the three instrumental and
In our opinion, the attestation clause is fatally defective for failing to attesting witnesses sign at the end of the will and in the presence of
state that Antero Mercado caused Atty. Florentino Javier to write the the testatrix and of one another?
testator's name under his express direction, as required by section
618 of the Code of Civil Procedure. The herein petitioner (who is Undoubtedly, under Article 805 of the Civil Code, the will must be
appealing by way of certiorari from the decision of the Court of subscribed or signed at its end by the testator himself or by the
Appeals) argues, however, that there is no need for such recital testator's name written by another person in his presence, and by his
because the cross written by the testator after his name is a sufficient express direction, and attested and subscribed by three or more
signature and the signature of Atty. Florentino Javier is a surplusage. credible witnesses in the presence of the testator and of one another.
Petitioner's theory is that the cross is as much a signature as a
thumbmark, the latter having been held sufficient by this Court in the It must be noted that the law uses the terms attested and subscribed.
cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Attestation consists in witnessing the testator's execution of the will
Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. in order to see and take note mentally that those things are done
Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429. which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand,
It is not here pretended that the cross appearing on the will is the subscription is the signing of the witnesses' names upon the same
usual signature of Antero Mercado or even one of the ways by which paper for the purpose of identification of such paper as the will which
he signed his name. After mature reflection, we are not prepared to was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
liken the mere sign of a cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the trustworthiness of Insofar as the requirement of subscription is concerned, it is our
a thumbmark. considered view that the will in this case was subscribed in a manner
which fully satisfies the purpose of identification.
What has been said makes it unnecessary for us to determine
whether there is a sufficient recital in the attestation clause as to the The law is to be liberally construed, "the underlying and fundamental
signing of the will by the testator in the presence of the witnesses, objective permeating the provisions on the law on wills in this project
and by the latter in the presence of the testator and of each other. consists in the liberalization of the manner of their execution with the
Wherefore, the appealed decision is hereby affirmed, with costs end in view of giving the testator more freedom in expressing his last
against the petitioner. So ordered. wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper
Taboado vs. Rosal pressure and influence upon the testator. This objective is in accord
with the modern tendency in respect to the formalities in the
In the petition for probate filed with the respondent court, the execution of a will" (Report of the Code Commission, p. 103).
petitioner attached the alleged last will and testament of the late
Dorotea Perez. Written in Cebuano-Visayan dialect, the will consists The objects of attestation and of subscription were fully met and
of two pages. The first page contains the entire testamentary satisfied in the present case when the instrumental witnesses signed
dispositions and is signed at the end or bottom of the page by the at the left margin of the sole page which contains all the
testatrix alone and at the left hand margin by the three (3) testamentary dispositions, especially so when the will was properly
instrumental witnesses. The second page which contains the identified by subscribing witness Vicente Timkang to be the same will
attestation clause and the acknowledgment is signed at the end of executed by the testatrix. There was no question of fraud or
the attestation clause by the three 13) attesting witnesses and at the substitution behind the questioned order.
left hand margin by the testatrix.
We have examined the will in question and noticed that the
Since no opposition was filed after the petitioner's compliance with attestation clause failed to state the number of pages used in writing
the requirement of publications, the trial court commissioned the the will. This would have been a fatal defect were it not for the fact
branch clerk of court to receive the petitioner's evidence. that, in this case, it is discernible from the entire will that it is really
Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will, who 28
testified on its genuineness and due execution.
- jann -
Wills & Succession/ Atty Uribe The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit
and actually composed of only two pages duly signed by the testatrix "A" consists of five pages, and while signed at the end and in every
and her instrumental witnesses. As earlier stated, the first page page, it does not contain the signature of one of the attesting
which contains the entirety of the testamentary dispositions is signed witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the
by the testatrix at the end or at the bottom while the instrumental duplicate copy attached to the amended and supplemental petition
witnesses signed at the left margin. The other page which is marked and marked as Exhibit "A-1" is signed by the testatrix and her three
as "Pagina dos" comprises the attestation clause and the attesting witnesses in each and every page.
acknowledgment. The acknowledgment itself states that "This Last
Will and Testament consists of two pages including this page." Witness Natividad who testified on his failure to sign page three (3)
of the original, admits that he may have lifted two pages instead of
The ratio decidendi of these cases seems to be that the attestation one when he signed the same, but affirmed that page three (3) was
clause must contain a statement of the number of sheets or passes signed in his presence.
composing the will and that if this is missing or is omitted, it will have
the effect of invalidating the will if the deficiency cannot be supplied, We have examined the record and are satisfied, as the trial court
not by evidence aliunde, but by a consideration or examination of the was, that the testatrix signed both original and duplicate copies
will itself. But here the situation is different. While the attestation (Exhibits "A" and "A-1", respectively) of the will spontaneously, on
clause does not state the number of sheets or pages upon which the the same in the presence of the three attesting witnesses, the notary
will is written, however, the last part of the body of the will contains a public who acknowledged the will; and Atty. Samson, who actually
statement that it is composed of eight pages, which circumstance in prepared the documents; that the will and its duplicate were
our opinion takes this case out of the rigid rule of construction and executed in Tagalog, a language known to and spoken by both the
places it within the realm of similar cases where a broad and more testator and the witnesses, and read to and by the testatrix and Atty.
liberal view has been adopted to prevent the will of the testator from Fermin Samson, together before they were actually signed; that the
being defeated by purely technical considerations." attestation clause is also in a language known to and spoken by the
testatrix and the witnesses. The opinion of expert for oppositors, Mr.
" . . . Impossibility of substitution of this page is assured not only (sic) Felipe Logan, that the signatures of the testatrix appearing in the
the fact that the testatrix and two other witnesses, did sign the duplicate original were not written by the same had which wrote the
defective page, but also by its bearing the coincident imprint of the signatures in the original will leaves us unconvinced, not merely
seal of the notary public before whom the testament was ratified by because it is directly contradicted by expert Martin Ramos for the
testatrix and all three witnesses. The law should not be so strictly and proponents, but principally because of the paucity of the standards
literally interpreted as to penalize the testatrix on account of the used by him to support the conclusion that the differences between
inadvertence of a single witness over whose conduct she had no the standard and questioned signatures are beyond the writer's
control, where the purpose of the law to guarantee the identity of the range of normal scriptural variation. The expert has, in fact, used as
testament and its component pages is sufficiently attained, no standards only three other signatures of the testatrix besides those
intentional or deliberate deviation existed, and the evidence on record affixed to the original of the testament (Exh. A); and we feel that with
attest to the full observance of the statutory requisites. Otherwise, as so few standards the expert's opinion and the signatures in the
stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz 1459, at 1479 duplicate could not be those of the testatrix becomes extremely
(decision on reconsideration) 'witnesses may sabotage the will by hazardous. This is particularly so since the comparison charts Nos. 3
muddling or bungling it or the attestation clause.'" and 4 fail to show convincingly that the are radical differences that
would justify the charge of forgery, taking into account the advanced
WHEREFORE, the present petition is hereby granted. The orders of age of the testatrix, the evident variability of her signatures, and the
the respondent Court which denied the probate of the will, the motion effect of writing fatigue, the duplicate being signed right the original.
for reconsideration of the denial of probate, and the motion for These, factors were not discussed by the expert.
appointment of a special administrator are set aside.
Nor do we find adequate evidence of fraud or undue influence. The
Icasiano vs. Icasiano fact that some heirs are more favored than others is proof of neither
(see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163;
This special proceeding was begun on October 2, 1958 by a petition Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the
for the allowance and admission to probate of the original, Exhibit "A" usual reason for making a testament; otherwise, the decedent might
as the alleged will of Josefa Villacorte, deceased, and for the as well die intestate. The testamentary dispositions that the heirs
appointment of petitioner Celso Icasiano as executor thereof. should not inquire into other property and that they should respect
the distribution made in the will, under penalty of forfeiture of their
The evidence presented for the petitioner is to the effect that Josefa shares in the free part do not suffice to prove fraud or undue
Villacorte died in the City of Manila on September 12, 1958; that on influence. They appear motivated by the desire to prevent prolonged
June 2, 1956, the late Josefa Villacorte executed a last will and litigation which, as shown by ordinary experience, often results in a
testament in duplicate at the house of her daughter Mrs. Felisa sizeable portion of the estate being diverted into the hands of non-
Icasiano at Pedro Guevara Street, Manila, published before and heirs and speculators. Whether these clauses are valid or not is a
attested by three instrumental witnesses, namely: attorneys Justo P. matter to be litigated on another occassion. It is also well to note that,
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off.
was acknowledged by the testatrix and by the said three instrumental Gaz. 168, fraud and undue influence are mutually repugnant and
witnesses on the same date before attorney Jose Oyengco Ong, exclude each other; their joining as grounds for opposing probate
Notary Public in and for the City of Manila; and that the will was shows absence of definite evidence against the validity of the will.
actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and On the question of law, we hold that the inadvertent failure of one
testament, together with former Governor Emilio Rustia of Bulacan, witness to affix his signature to one page of a testament, due to the
Judge Ramon Icasiano and a little girl. Of the said three instrumental simultaneous lifting of two pages in the course of signing, is not per
witnesses to the execution of the decedent's last will and testament, se sufficient to justify denial of probate. Impossibility of substitution of
attorneys Torres and Natividad were in the Philippines at the time of this page is assured not only the fact that the testatrix and two other
the hearing, and both testified as to the due execution and witnesses did sign the defective page, but also by its bearing the
authenticity of the said will. So did the Notary Public before whom the coincident imprint of the seal of the notary public before whom the
will was acknowledged by the testatrix and attesting witnesses, and testament was ratified by testatrix and all three witnesses. The law
also attorneys Fermin Samson, who actually prepared the document. should not be so strictly and literally interpreted as to penalize the
The latter also testified upon cross examination that he prepared one testatrix on account of the inadvertence of a single witness over
original and two copies of Josefa Villacorte last will and testament at whose conduct she had no control, where the purpose of the law to
his house in Baliuag, Bulacan, but he brought only one original and guarantee the identity of the testament and its component pages is
one signed copy to Manila, retaining one unsigned copy in Bulacan. sufficiently attained, no intentional or deliberate deviation existed,
and the evidence on record attests to the full observance of the
- jann -
29
Wills & Succession/ Atty Uribe notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot
statutory requisites. Otherwise, as stated in Vda. de Gil. vs. acknowledge before himself his having signed the will. To
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
"witnesses may sabotage the will by muddling or bungling it or the 258, 262; Castro v Castro, 100 Phil. 239, 247); to own as genuine, to
attestation clause". assent, to admit; and "before" means in front or preceding in space
or ahead of. (The New Webster Encyclopedic Dictionary of the
This would not be the first time that this Court departs from a strict English Language, p. 72; Funk & Wagnalls New Standard Dictionary
and literal application of the statutory requirements, where the of the English Language, p. 252; Webster's New International
purposes of the law are otherwise satisfied. Thus, despite the literal Dictionary 2d. p. 245.) Consequently, if the third witness were the
tenor of the law, this Court has held that a testament, with the only notary public himself, he would have to avow, assent, or admit his
page signed at its foot by testator and witnesses, but not in the left having signed the will in front of himself. This cannot be done
margin, could nevertheless be probated (Abangan vs. Abangan, 41 because he cannot split his personality into two so that one will
Phil. 476); and that despite the requirement for the correlative appear before the other to acknowledge his participation in the
lettering of the pages of a will, the failure to make the first page either making of the will. To permit such a situation to obtain would be
by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. sanctioning a sheer absurdity.
429). These precedents exemplify the Court's policy to require
satisfaction of the legal requirements in order to guard against fraud Furthermore, the function of a notary public is, among others, to
and bid faith but without undue or unnecessary curtailment of the guard against any illegal or immoral arrangements. Balinon v. De
testamentary privilege. Leon, 50 O. G. 583.) That function would be defeated if the notary
public were one of the attesting or instrumental witnesses. For them
The appellants also argue that since the original of the will is in he would be interested in sustaining the validity of the will as it
existence and available, the duplicate (Exh. A-1) is not entitled to directly involves himself and the validity of his own act. It would place
probate. Since they opposed probate of original because it lacked him in an inconsistent position and the very purpose of the
one signature in its third page, it is easily discerned that oppositors- acknowledgment, which is to minimize fraud (Report of the Code
appellants run here into a dilemma; if the original is defective and Commission p. 106-107), would be thwarted. These authorities do
invalid, then in law there is no other will but the duly signed carbon not serve the purpose of the law in this jurisdiction or are not decisive
duplicate (Exh. A-1), and the same is probatable. If the original is of the issue herein, because the notaries public and witnesses
valid and can be probated, then the objection to the signed duplicate referred to in the aforecited cases merely acted as instrumental,
need not be considered, being superfluous and irrelevant. At any subscribing or attesting witnesses, and not as acknowledging
rate, said duplicate, Exhibit A-1, serves to prove that the omission of witnesses. Here the notary public acted not only as attesting witness
one signature in the third page of the original testament was but also as acknowledging witness, a situation not envisaged by
inadvertent and not intentional. Article 805 of the Civil Code.
That the carbon duplicate, Exhibit A-1, was produced and admitted To allow the notary public to act as third witness, or one of the
without a new publication does not affect the jurisdiction of the attesting and acknowledging witnesses, would have the effect of
probate court, already conferred by the original publication of the having only two attesting witnesses to the will which would be in
petition for probate. The amended petition did not substantially alter contravention of the provisions of Article 805 requiring at least three
the one first filed, but merely supplemented it by disclosing the credible witnesses to act as such and of Article 806 which requires
existence of the duplicate, and no showing is made that new that the testator and the required number of witnesses must appear
interests were involved (the contents of Exhibit A and A-1 are before the notary public to acknowledge the will. The result would be,
admittedly identical); and appellants were duly notified of the as has been said, that only two witnesses appeared before the
proposed amendment. It is nowhere proved or claimed that the notary public for that purpose. In the circumstances, the law would
amendment deprived the appellants of any substantial right, and we not be duly observed.
see no error in admitting the amended petition.
Gabucan vs. Manta
IN VIEW OF THE FOREGOING, the decision appealed from is
affirmed This case is about the dismissal of a petition for the probate of a
notarial will on the ground that it does not bear a thirty-centavo
Cruz vs. Villasor documentary stamp.
Petition to review on certiorari the judgment of the Court of First The Court of First Instance of Camiguin in its "decision" of December
Instance of Cebu allowing the probate of the last will and testament 28, 1977 in Special Proceeding No. 41 for the probate of the will of
of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the the late Rogaciano Gabucan, dismissed the proceeding (erroneously
surviving spouse of the said deceased, opposed the allowance of the characterizes as an "action").
will (Exhibit "E"), alleging that the will was executed through fraud,
deceit, misrepresentation and undue influence; that the said The proceeding was dismissed because the requisite documentary
instrument was executed without the testator having been fully stamp was not affixed to the notarial acknowledgment in the will and,
informed of the contents thereof, particularly as to what properties he hence, according to respondent The probate court assumed that the
was disposing; and that the supposed last will and testament was not notarial acknowledgment of the said will is subject to the thirty-
executed in accordance with law. Notwithstanding her objection, the centavo documentary stamp tax fixed in section 225 of the Tax
Court allowed the probate of the said last will and testament. Hence Code, now section 237 of the 1977 Tax Code. Judge, it was not
this appeal by certiorari which was given due course. admissible in evidence, citing section 238 of the Tax Code.
The only question presented for determination, on which the decision We hold that the lower court manifestly erred in declaring that,
of the case hinges, is whether the supposed last will and testament because no documentary stamp was affixed to the will, there was "no
of Valente Z. Cruz (Exhibit "E") was executed in accordance with will and testament to probate" and, consequently, the alleged "action
law, particularly Articles 805 and 806 of the new Civil Code, the first must of necessity be dismissed."
requiring at least three credible witnesses to attest and subscribe to
the will, and the second requiring the testator and the witnesses to What the probate court should have done was to require the
acknowledge the will before a notary public. petitioner or proponent to affix the requisite thirty-centavo
documentary stamp to the notarial acknowledgment of the will which
Of the three instrumental witnesses thereto, namely, Deogracias T. is the taxable portion of that document.
Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr.,
one of them, the last named, is at the same time the Notary Public That procedure may be implied from the provision of section 238 that
before whom the will was supposed to have been acknowledged. the non-admissibility of the document, which does not bear the
requisite documentary stamp, subsists only "until the requisite stamp
After weighing the merits of the conflicting claims of the parties, We or stamps shall have been affixed thereto and cancelled."
are inclined to sustain that of the appellant that the last will and
testament in question was not executed in accordance with law. The 30
- jann -
Wills & Succession/ Atty Uribe witnesses should acknowledge the testament on the same day or
occasion that it was executed.
Thus, it was held that the documentary stamp may be affixed at the
time the taxable document is presented in evidence (Del Castillo vs. The decision admitting the will to probate is affirmed, with costs
Madrileña, 49 Phil. 749) If the promissory note does not bear a against appellant.
documentary stamp, the court should have allowed plaintiff's tender
of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. Witnesses to a will
67, 71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that
the lack of the documentary stamp on a document does not d. who are competent?
invalidate such document. See Cia. General de Tabacos vs.
Jeanjaquet, 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Art. 820. Any person of sound mind and of the age of eighteen
Amenabar, 16 Phil. 403, 405-6.) years or more, and not bind, deaf or dumb, and able to read and
write, may be a witness to the execution of a will mentioned in
Javellana vs. Ledesma Article 805 of this Code. (n)
By order of July 23, 1953, the Court of First Instance of Iloilo T: these are witnesses under an ordinary will.
admitted to probate the documents in the Visayan dialect, marked
Exhibits D and E, as the testament and codicil duly executed by the B: Six qualifications of a witness: 1. sound mind; 2. 18 years of age;
deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 3. not blind, deaf or dumb,; 4. literateor able to read and write;
1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria domicile in the Philippines;6. not convicted of a crime involving,
Montinola de Tabiana and Vicente Yap as witnesses. The falsification, perjury, or false testimony.
contestant, Da. Matea Ledesma, sister and nearest surviving relative
of said deceased, appealed from the decision, insisting that the said Art. 821. The following are disqualified from being witnesses to
exhibits were not executed in conformity with law. The appeal was a will:
made directly to this Court because the value of the properties
involved exceeded two hundred thousand pesos. (1) Any person not domiciled in the Philippines;
Originally the opposition to the probate also charged that the testatrix (2) Those who have been convicted of falsification of a
lacked testamentary capacity and that the dispositions were procured document, perjury or false testimony. (n)
through undue influence. These grounds were abandoned at the
hearing in the court below, where the issue was concentrated into T: The law requires that the witness be domiciled in the Philippines
three specific questions: (1) whether the testament of 1950 was mere residence is not sufficient. Domicile under Art. 50, Art. 50. For
executed by the testatrix in the presence of the instrumental the exercise of civil rights and the fulfillment of civil obligations, the
witnesses; (2) whether the acknowledgment clause was signed and domicile of natural persons is the place of their habitual residence.
the notarial seal affixed by the notary without the presence of the (40a)
testatrix and the witnesses; and (3) if so, whether the codicil was
thereby rendered invalid and ineffective. These questions are the Ratio of domicile requirement:
same ones presented to us for resolution.
1. availability of witness when will is probated if the same is
The contestant argues that the Court below erred in refusing within the Philippines;
credence to her witnesses Maria Paderogao and Vidal Allado, cook
and driver, respectively, of the deceased Apolinaria Ledesma. Both 2. witness domiciled in the Philippines more likely to know the
testified that on March 30, 1950, they saw and heard Vicente Yap testator and be ablr to testify on his mental condition at the
(one of the witnesses to the will) inform the deceased that he had time of execution of the will.
brought the "testamento" and urge her to go to attorney Tabiana's
office to sign it; that Da. Apolinaria manifested that she could not go, Except of course if the will was executed in a foreign country the
because she was not feeling well; and that upon Yap's insistence domicile requirement does not apply.
that the will had to be signed in the attorney's office and not
elsewhere, the deceased took the paper and signed it in the There is citizenship requirement only domicile requirement. Even
presence of Yap alone, and returned it with the statement that no aliens may witness as long as they are domiciled here.
one would question it because the property involved was exclusively
hers. As to conviction of perjury, falsification, and false testimony, it is
At any rate, as observed by the Court below, whether or not the presumed that such witness cannot be relied upon fot truthfulness.
notary signed the certification of acknowledgment in the presence of Conviction for any other crime, however, is not a disqualification
the testatrix and the witnesses, does not affect the validity of the
codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does The notary public before whom the will was acknowledged cannot
not require that the signing of the testator, witnesses and notary act as witness because he cannot acknowledge before himself his
should be accomplished in one single act. A comparison of Articles having signed the will; this cannot be done because it would place
805 and 806 of the new Civil Code reveals that while testator and him in an inconsistent position and the very purpose of the
witnesses must sign in the presence of each other, all that is acknowledgement, which is to minimize fraud would be thwarted.
thereafter required is that "every will must be acknowledged before a
notary public by the testator and the witnesses" (Art. 806); i.e., that Art. 824. A mere charge on the estate of the testator for the
the latter should avow to the certifying officer the authenticity of their payment of debts due at the time of the testator's death does
signatures and the voluntariness of their actions in executing the not prevent his creditors from being competent witnesses to his
testamentary disposition. This was done in the case before us. The will. (n)
subsequent signing and sealing by the notary of his certification that
the testament was duly acknowledged by the participants therein is B: Because This is not a testamentary disposition
no part of the acknowledgment itself nor of the testamentary act.
Hence their separate execution out of the presence of the testatrix 31
and her witnesses can not be said to violate the rule that testaments
should be completed without interruption (Andalis vs. Pulgueras, 59
Phil. 643), or, as the Roman maxim puts it, "uno eodem die ac
tempore in eadem loco", and no reversible error was committed by
the Court in so holding. It is noteworthy that Article 806 of the new
Civil Code does not contain words requiring that the testator and the
- jann -
Wills & Succession/ Atty Uribe (2) Those who have been convicted of falsification
of a document, perjury or false testimony.
Gonzales vs. CA
Under the law, there is no mandatory requirement that the witness
This is a petition for review of the decision of the Court of Appeals, testify initially or at any time during the trial as to his good standing in
First Division, 1 promulgated on May 4, 1973 in CA-G. R. No. the community, his reputation for trustworthiness and reliableness,
36523-R which reversed the decision of the Court of First Instance of his honesty and uprightness in order that his testimony may be
Rizal dated December 15, 1964 and allowed the probate of the last believed and accepted by the trial court. It is enough that the
will and testament of the deceased Isabel Gabriel. qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by
It appears that on June 24, 1961, herein private respondent Lutgarda or deduced from his answers to the questions propounded to him,
Santiago filed a petition with the Court of First Instance of Rizal that his age (18 years or more) is shown from his appearance,
docketed as Special Proceedings No. 3617, for the probate of a will testimony, or competently proved otherwise, as well as the fact that
alleged to have been executed by the deceased Isabel Gabriel and he is not blind, deaf or dumb and that he is able to read and write to
designating therein petitioner as the principal beneficiary and the satisfaction of the Court, and that he has none of the
executrix. disqualifications under Article 821 of the Civil Code. We reject
petitioner's contention that it must first be established in the record
There is no dispute in the records that the late Isabel Andres Gabriel the good standing of the witness in the community, his reputation for
died as a widow and without issue in the municipality of Navotas, trustworthiness and reliableness, his honesty and uprightness,
province of Rizal her place of residence, on June 7, 1961 at the age because such attributes are presumed of the witness unless the
of eighty-five (85), having been born in 1876. It is likewise not contrary is proved otherwise by the opposing party.
controverted that herein private respondent Lutgarda Santiago and
petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and In probate proceedings, the instrumental witnesses are not character
that private respondent, with her husband and children, lived with the witnesses for they merely attest the execution of a will or testament
deceased at the latter's residence prior and up to the time of her and affirm the formalities attendant to said execution. And We agree
death. with the respondent that the rulings laid down in the cases cited by
petitioner concerning character witnesses in naturalization
The petition was opposed by Rizalina Gabriel Gonzales, herein proceedings are not applicable to instrumental witnesses to wills
petitioner, assailing the document purporting to be the will of the executed under the Civil Code of the Philippines.
deceased on the following grounds:
In the case at bar, the finding that each and everyone of the three
From this judgment of disallowance, Lutgarda Santiago appealed to instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and
respondent Court, hence, the only issue decided on appeal was Maria Gimpaya, are competent and credible is satisfactorily
whether or not the will in question was executed and attested as supported by the evidence as found by the respondent Court of
required by law. The Court of Appeals, upon consideration of the Appeals, which findings of fact this Tribunal is bound to accept and
evidence adduced by both parties, rendered the decision now under rely upon. Moreover, petitioner has not pointed to any disqualification
review, holing that the will in question was signed and executed by of any of the said witnesses, much less has it been shown that
the deceased Isabel Gabriel on April 15, 1961 in the presence of the anyone of them is below 18 years of age, of unsound mind, deaf or
three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria dumb, or cannot read or write.
Gimpaya, signing and witnessing the document in the presence of
the deceased and of each other as required by law, 2 hence In the strict sense, the competency of a person to be an instrumental
allowed probate. witness to a will is determined by the statute, that is Art. 820 and
821, Civil Code, whereas his credibility depends on the appreciation
Petitioner, in her first assignment, contends that the respondent of his testimony and arises from the belief and conclusion of the
Court of Appeals erred in holding that the document, Exhibit "F", was Court that said witness is telling the truth. Thus, in the case of Vda.
executed and attested as required by law when there was absolutely de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-
no proof that the three instrumental witnesses were credible 22005, May 3, 1968, the Supreme Court held and ruled that:
witnesses. She argues that the requirement in Article 806, Civil "Competency as a witness is one thing, and it is another to be a
Code, that the witnesses must be credible is an absolute requirement credible witness, so credible that the Court must accept what he
which must be complied with before an alleged last will and says. Trial courts may allow a person to testify as a witness upon a
testament may be admitted to probate and that to be a credible given matter because he is competent, but may thereafter decide
witness, there must be evidence on record that the witness has a whether to believe or not to believe his testimony."
good standing in his community, or that he is honest and upright, or
reputed to be trustworthy and reliable. According to petitioner, unless In fine, We state the rule that the instrumental witnesses in order to
the qualifications of the witness are first established, his testimony be competent must be shown to have the qualifications under Article
may not be favorably considered. Petitioner contends that the term 820 of the Civil Code and none of the disqualifications under Article
"credible" is not synonymous with "competent" for a witness may be 821 and for their testimony to be credible, that is worthy of belief and
competent under Article 820 and 821 of the Civil Code and still not entitled to credence, it is not mandatory that evidence be first
be credible as required by Article 805 of the same Code. It is further established on record that the witnesses have a good standing in the
urged that the term "credible" as used in the Civil Code should community or that they are honest and upright or reputed to be
receive the same settled and well-known meaning it has under the trustworthy and reliable, for a person is presumed to be such unless
Naturalization Law, the latter being a kindred legislation with the Civil the contrary is established otherwise. In other words, the
Code provisions on wills with respect to the qualifications of instrumental witnesses must be competent and their testimonies
witnesses. must be credible before the court allows the probate of the will they
have attested. We, therefore, reject petitioner's position that it was
We find no merit to petitioner's first assignment of error. Article 820 fatal for respondent not to have introduced prior and independent
of the Civil Code provides the qualifications of a witness to the proof of the fact that the witnesses were "credible witnesses", that is,
execution of wills while Article 821 sets forth the disqualification from that they have a good standing in the community and reputed to be
being a witness to a will. These Articles state: trustworthy and reliable.
"Art. 820. Any person of sound mind and of the age of Petitioner's exacerbation centers on the supposed incredibility of the
eighteen years or more, and not blind, deaf or dumb, and testimonies of the witnesses for the proponent of the will, their
able to read and write, may be a witness to the execution alleged evasions, inconsistencies and contradictions. But in the case
of a will mentioned in article 805 of this Code. at bar, the three instrumental witnesses who constitute the best
evidence of the will-making have testified in favor of the probate of
"Art. 821. The following are disqualified from being the will. So has the lawyer who prepared it, one learned in the law
witnesses to a will: and long in the practice thereof, who thereafter notarized it. All of
(1) Any person not domiciled in the Philippines, 32
- jann -
Wills & Succession/ Atty Uribe T: The reason for the requirement in this article is to make the
provisions of the will known to the testator, so that he may be able to
them are disinterested witnesses who stand to receive no benefit object if they are not in accordance with his wishes. Failure to comply
from the testament. The signatures of the witnesses and the testatrix with this requirement mkes the will invalid.
have been identified on the will and there is no claim whatsoever and
by anyone, much less the petitioner, that they were not genuine. In An illiterate testator can see the paper and the writing thereon, but ne
the last and final analysis, the herein conflict is factual and we go cannot understand what is written because he cannot read it. From
back to the rule that the Supreme Court cannot review and revise the the point of view of understanding or knowing the contents of the will,
findings of facts of the respondent Court of Appeals. there is no difference between the illiterate testator and the blind
testator. Therefore, the present article should likewise apply to an
e. supervening incompetency illiterate testator.
Art. 822. If the witnesses attesting the execution of a will are B: the burden of proof of the compliance of this aticle is is upon the
competent at the time of attesting, their becoming subsequently proponent. No requirement that such compliance is stated in the will
incompetent shall not prevent the allowance of the will. (n) or attestation clause
B: As in the case of TC the time of execution of the will is the only Garcia vs. Vasquez
relevant temporal criterion in the determination of the competence of
the witnesses. Gliceria Avelino del Rosario died unmarried in the City of Manila on 2
September 1965, leaving no descendents, ascendants, brother or
J: competency determined at the time of execution of will and not at sister. At the time of her death, she was said to be 90 years old more
the time of presentation for probate. or less, and possessed of an estate consisting mostly of real
properties.
f. Competency of interested witnesses The petition was opposed separately by several groups of alleged
heirs the latter five groups of persons all claiming to be relatives of
Art. 823. If a person attests the execution of a will, to whom or to Doña Gliceria within the fifth civil degree. The oppositions invariably
whose spouse, or parent, or child, a devise or legacy is given by charged that the instrument executed in 1960 was not intended by
such will, such devise or legacy shall, so far only as concerns the deceased to be her true will; that the signatures of the deceased
such person, or spouse, or parent, or child of such person, or appearing in the will was procured through undue and improper
any one claiming under such person or spouse, or parent, or pressure and influence the part of the beneficiaries and/or other
child, be void, unless there are three other competent witnesses persons; that the testatrix did not know the object of her bounty; that
to such will. However, such person so attesting shall be the instrument itself reveals irregularities in its execution, and that the
admitted as a witness as if such devise or legacy had not been formalities required by law for such execution have not been
made or given. (n) complied with.
T: This article does not refer to disqualification to be a witness, but a Oppositor Lucio V. Garcia, who also presented for probate the 1956
disqualification to inherit. The devisee or legatee is not disqualified will of the deceased, joined the group of Dr. Jaime Rosario in
nor his spouse, parent or child to be witness as long as he is registering opposition to the appointment of petitioner Consuelo S.
competent and credible under Art. 821 but the devise or legacy, Gonzales Vda. de Precilla as special administratrix, on the ground
however, shall be void. that the latter possesses interest adverse to the estate. After the
parties were duly heard, the probate court, in its order of 2 October
But if the witness is not a devisee or legatee, but an heir, is the 1965, granted petitioner's prayer and appointed her special
institution of such heir void? Notwithstanding the terminology of the administratrix of the estate upon a bond for P30,000.00. The order
article, we believe that even as instituted heir, or spouse, parent child was premised on the fact the petitioner was managing the properties
is disqualified. The disqualification is intended to to aply to one belonging to the estate even during the lifetime of the deceased, and
succeeding by will, and it is not material in what concept he to appoint another person as administrator or co administrator at that
succeeds. This is proved by Art. 1027 par. 4 on relative incapacity stage of the proceeding would only result in further confusion and
which makes no distinction between heirs, devisees or legatees. difficulties.
B: this article pertains more on the capacity to succeed than the On 25 August 1966, the Court issued an order admitting to probate
capacity to be a witness. The witness will remain as such but the the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the
legacy or devise shall be void. due execution of the will, the probate court took note that no
evidence had been presented to establish that the testatrix was not
The disqualification applies only to testamentary disposition . if the of sound mind when the will was executed; that the fact that she had
witness is also entitled to legitime or intestate share this shall not be prepared an earlier will did not, prevent her from executing another
affected. one thereafter; that the fact that the 1956 will consisted of 12 pages
whereas the 1960 testament was contained in one page does not
3. Special requirements for deaf, deaf mute and blind render the latter invalid; that, the erasures and alterations in the
testators instrument were insignificant to warrant rejection; that the
inconsistencies in the testimonies of the instrumental witnesses
Art. 807. If the testator be deaf, or a deaf-mute, he must which were noted by the oppositors are even indicative of their
personally read the will, if able to do so; otherwise, he shall truthfulness. The probate court, also considering that petitioner had
designate two persons to read it and communicate to him, in already shown capacity to administer the properties of the estate and
some practicable manner, the contents thereof. (n) that from the provisions of the will she stands as the person most
concerned and interested therein, appointed said petitioner regular
Art. 808. If the testator is blind, the will shall be read to him administratrix with a bond for P50,000.00. From this order all the
twice; once, by one of the subscribing witnesses, and again, by oppositors appealed, the case being docketed in this Court as G.R.
the notary public before whom the will is acknowledged. (n) No. L-27200.
Foremost of the questions to be determined here concerns the
- jann - correctness of the order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the
testatrix, Gliceria A. del Rosario, during her lifetime, executed two
wills: one on 9 June 1956 consisting of 12 pages and written in
33
Wills & Succession/ Atty Uribe have required observance of the provisions of Article 808 of the Civil
Code.
Spanish, a language that she knew and spoke, witnessed by Messrs.
Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and "ART. 808. If the testator is blind, the
acknowledged before notary public Jose Ayala; and another dated
29 December 1960, consisting of 1 page and written in Tagalog, will shall be read to him twice; once, by one of
witnessed by Messrs. Vicente Rosales, Francisco Decena, and
Francisco Lopez and acknowledged before notary public Remigio M. the subscribing witnesses, and again, by the
Tividad.
Called to testify on the due execution of the 1960 will, instrumental notary public before whom the will is
witnesses Decena, Lopez and Rosales uniformly declared that they
were individually requested by Alfonso Precilla (the late husband of acknowledged."
petitioner special administratrix) to witness the execution of the last
will of Doña Gliceria A. del Rosario; that they arrived at the house of The rationale behind the requirement of reading the will to the
the old lady at No. 2074 Azcarraga, Manila, one after the other, in the testator if he is blind or incapable of reading the will himself (as when
afternoon of 29 December 1960; that the testatrix at the time was he is illiterate), 18 is to make the provisions thereof known to him,
apparently of clear and sound mind, although she was being aided so that he may be able to object if they are not in accordance with his
by Precilla when she walked; 3 that the will, which was already wishes. That the aim of the law is to insure that the dispositions of
prepared, was first read "silently" by the testatrix herself before she the will are properly communicated to and understood by the
signed it; handicapped testator, thus making them truly reflective of his desire,
is evidenced by the requirement that the will should be read to the
The oppositors-appellants in the present case, however, challenging latter, not only once but twice, by two different persons, and that the
the correctness of the probate court's ruling, maintain that on 29 witnesses have to act within the range of his (the testator's) other
December 1960 the eyesight of Gliceria del Rosario was so poor and senses. 19
defective that she could not have read the provisions of the will,
contrary to the testimonies of witnesses Decena, Lopez and Rosales. In connection with the will here in question, there is nothing in the
records to show that the above requisites have been complied with.
On this point, we find the declarations in court of Dr. Jesus V. Clearly, as already stated, the 1960 will sought to be probated
Tamesis very material and illuminating. Said ophthalmologist, whose suffers from infirmity that affects its due execution.
expertise was admitted by both parties, testified, among other things,
that when Doña Gliceria del Rosario saw him for consultation on 11 On the matter of lis pendens (G.R. No. L-26864), the provisions of
March 1960 he found her left eye to have cataract (opaque lens), the Rules of Court are clear: notice of the pendency of an action may
15 and that it was "above normal in pressure", denoting a possible be recorded in the office of the register of deeds of the province in
glaucoma, a disease that leads to blindness 16 As to the conditions which the property is situated, if the action affects "the title or the
of her right eye right of possession of (such) real property." 23 In the case at bar,
the pending action which oppositors seek to annotate in the records
The foregoing testimony of the ophthalmologist who treated the of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding
deceased and, therefore, has first hand knowledge of the actual filed in this Court (G.R. No. L-26615). As previously discussed in this
condition of her eyesight from August, 1960 up to 1963, fully opinion, however, that case is concerned merely with the correctness
establish the fact that notwithstanding the operation and removal of of the denial by the probate court of the motion for the removal of
the cataract in her left eye and her being fitted with aphakic lens Consuelo Gonzales Vda. de Precilla as special administratrix of the
(used by cataract patients), her vision remained mainly for viewing estate of the late Gliceria del Rosario. In short, the issue in
distant objects and not for reading print. Thus, the conclusion is controversy there is simply the fitness or unfitness of said special
inescapable that with the condition of her eyesight in August, 1960, administratrix to continue holding the trust; it does not involve or
and there is no evidence that it had improved by 29 December 1960, affect at all the title to, or possession of, the properties covered by
Gliceria del Rosario was incapable f reading, and could not have said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of
read the provisions of the will supposedly signed by her on 29 such case (L-26615) is not an action that can properly be annotated
December 1960. It is worth noting that the instrumental witnesses in the record of the titles to the properties.
stated that she read the instrument "silently" (t.s.n., pages 164-165).
which is a conclusion and not a fact. FOR THE FOREGOING REASONS, the order of the court below
allowing to probate the alleged 1960 will of Gliceria A. del Rosario is
Against the background of defective eyesight of the alleged testatrix, hereby reversed and set aside.
the appearance of the will, Exhibit "D", acquires striking significance.
Upon its face, the testamentary provisions, the attestation clause and 4. Substantial compliance
acknowledgment were crammed together into a single sheet of
paper, to much so that the words had to be written very close on the Art. 809. In the absence of bad faith, forgery, or fraud, or undue
top, bottom and two sides of the paper, leaving no margin and improper pressure and influence, defects and imperfections
whatsoever; the word "and" had to be written by the symbol "&", in the form of attestation or in the language used therein shall
apparently to save on space. Plainly, the testament was not prepared not render the will invalid if it is proved that the will was in fact
with any regard for the defective vision of Doña Gliceria. Further, executed and attested in substantial compliance with all the
typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or requirements of Article 805.
"Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for
"Instrumental", and "acknowledged" for "acknowledge'', remained T: The law on formal requirements of a will should be liberally
uncorrected, thereby indicating that execution thereof must have construed; while perfection in drafting is desirable, unsubstantial
been characterized by haste. It is difficult to understand that so departures should be ignored, as long as the possibility of fraud and
important a document containing the final disposition of one's worldly bad faith are obviated.
possessions should be embodied in an informal and untidily written
instrument; or that the glaring spelling errors should have escaped There are many people who are fluent and have a graet mastery of
her notice if she had actually retained the ability to read the grammar. Thus, grammatical errors which may be noted from the
purported will and had done so. The record is thus convincing that general tenor of the attestation clause must, therefore, be overlooked
the supposed testatrix could not have physically read or understood or corrected by construction, so as not to frustrate the recognized
the alleged testament, Exhibit "D", and that its admission to probate intention of those who intervened in the execution thereof. Where it
was erroneous and should be reversed. appears from the context of the attestation that certain words were
ommtied inadvertently, the court may supply the omission.
Thus, for all intents and purpose of the rules on probate, the
deceased Gliceria del Rosario was, as appellant oppositors contend, It is sufficient if from the language employed it can be reasonably
not unlike a blind testator, and the due execution of her will would deduced that the attestation clause fulfills what the law expects of it.
- jann - 34
Wills & Succession/ Atty Uribe T: the following are the advantages of a holographic will:
Hence, an attestation clause will be held sufficient, notwithstanding 1. simple and easy to make for those a) who have no means to
some imperfections in the grammatical constructions, where it is employ a lawyer, b)who are timid and wants to reread their wills
evident that the defect is due to carelessness of the clerk or to lac of before signing, c) those who have only very little property to dispose
mastery of the language, if the meaning sought to be conveyed can
be determined from the clause itself. 2. It induces foreigners in this jurisdiction to set down their last
wishes;
Furthermore, the whole language of the attestation clause must be
taken together to determine whether the testaor complied with the 3. guaranties the absolute secrecy of the testamentary disposition
law. because it is not witnessed.
The substantial compliance rule has been applied to such extent as The disadvantages are:
to allow the attestation clause to be contained in the body of the will
itself and not a separate portion therein, expressed in the first preson 1. does not gauranty testamentary capacity of testator;
as a recital of the testator, provided that it is also signed by the three
instrumental witnesses. 2. no protection against vices of consent which may not be known in
case of death;
Justice JBL Reyes’ criticism of this article is enlightening:
3. due to faulty expression, it may not express the true will of the
The rule here is so broad that no matter how imperfect the attestation testator;
clause happens to be, the same could be cured by evidence aliunde.
It thus renders the attestation of no value in protecting fraud or really 4. for the same reason, it can be easily concealed.
defective execution. The rule must be limited to disregarding those
defects that can be supplied by an examination of the will itself: JBL Reyes criticizes this form of a will:
1. Whether all the pages are consecutively numbered; A holographic wills are peculiarly dangerous in case of persons who
2. W signature appears in each page; have written very little. The validity of these wills depends exclusively
3. W the subscribing witnesses are three on the authenticity of the handwriting, and if writing standards are not
4. W the will is notarized procurable, or not contemporaneous, the courts are left to the mercy
of the mendacity of witnesses.
All these are facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be safely Its simplicity is an invitation to forgery, since the text may be
disregarded. But the total number of pages, and whether all persons extremely short. If we want to permit the testator to keep his wishes
required to sign did so in the number of pages, and whether all secret in order to avoid importunity, it can be done on the basis of the
required to sign did so in the presence of each other must closed will. (tstamento cerrado)
substantially appear in the attestation clause being the only check
against perjury in probate proceedings. May a blind testator make a valid holographic will? There is no
question as to notarial wills it being allowed under the law provided
C. Holographic Wills the will was read twice to the testator. As to holographic wills, it is
submitted that it may be allowed. The testator, having written the
1. General requirements. holographic will by his own hand, knows what it contains. He may
have learned to write before he became blind, or inspite of his
Art. 804. Every will must be in writing and executed in a blindness. This view has been sustained in Louisiana, where it has
language or dialect known to the testator. (n) been held that blindness does not of itself prevent the making of a
valid holographic.
Our law does not recognize nuncupative wills, which is one that is
not written, but orally declared by the testator in his last illness, in A HW may be in any form, but the intent to dispose mortis causa
contemplation of death, and before a sufficient number of competent must clearly appear in the context.
witnesses.
What would be the effect of words written by another and inserted
The above requirement applies to both holographic and notarial. In among the words written by the testator?
notarial wills it is immaterial who performs the mechanical act writing
the will, so long as the testator signs it or has somebody sign his 1. if insertion was made after execution bu w/o consent, such is
name in his presence upon his direction. deemed not written;
As to the language or dialect, when a will is executed in a certain 2. if the insertion was after execution with the consent of testator, the
province or locality, in the dialect currently usd in such province or will remains valid but the insertion void;
locality, there arises a presumption that the testator knew the dialect
so used, in the absence of contrary evidence. It is not required that 3. if insertion was after execution and validated by testator by his
the will express that the language is known by the testator it is a fact signature, the entire will is void because it is not wholly written by the
which may be proved by evidence aliunde. testator himself;
The attestation clause of an ordinary will does not have to be written 4. if insertion is contemporaneous to the execution the effect same
in a language or dialect known to the testator. It is not part of the as no. 3.
testamentary disposition. The language used in the attestation
clause does not even have to be known to the witness; it should, 35
however, be translated to them.
Art. 810. A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed. (678, 688a)
- jann -
Wills & Succession/ Atty Uribe Civil Code. She contends that the law requires that the Will should
contain the day, month, and year of its execution and that this should
As to date, the day, month, and year on which the will was made be strictly complied with.
should be indicated therein. The day and the month,however, may
be indicated by implication, so long as the designation leaves no The only issue is whether or not the date "FEB./61" appearing on the
room for doubt as to exact date. holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
The validity of the holographic will is defeated by the fact that part of
the date is printed. Such as that written on a daily planner though the ART. 810. A person may execute a holographic
contents are entirely written by the hand but the testator relied on the
date indicated on the planner, the same is still extrinsically void. will which must be entirely written, dated, and signed by
Signatures of witnesses to a HW will not invalidate the will, but will be the hand of the testator himself. It is subject to no other
disregarded as a mere surplusage.
form, and may be made in or out of the Philippines, and
A person can make a HW in the form of a letter in which he states his
testamentary dispositions giving it a character of a will but the need not be witnessed."
animus testatandi must be present.
The petitioners contend that while Article 685 of the Spanish Civil
Inaccuracy of the date due to involuntary error, or inadvertence, the Code and Article 688 of the Old Civil Code require the testator to
testator being in good faith, the court may allow proof of the true state in his holographic Will the "year, month, and day of its
date, provided such proof even extrinsic can have a basis in the will execution," the present Civil Code omitted the phrase "Año, mes y
itself. dia" and simply requires that the holographic Will should be dated.
The petitioners submit that the liberal construction of the holographic
The signature of the testator in HW is not the simple writing of the Will should prevail.
name and surname of the testator. It is his name written by him in his
usual and habitual manner. We agree with the petitioner.
Under our law, the signature musr be at the end of the will. Thus can This will not be the first time that this Court departs from a strict and
be inferred from article 812 by the reference to dispositions “written
below his signature” this phrase implies that the signature is at the literal application of the statutory requirements regarding the due
end of the will and any disposition below it must be further signed
and dated. execution of Wills. We should not overlook the liberal trend of the
Art. 812. In holographic wills, the dispositions of the testator Civil Code in the manner of execution of Wills, the purpose of which,
written below his signature must be dated and signed by him in in case of doubt is to prevent intestacy —
order to make them valid as testamentary dispositions. (n)
"The underlying and fundamental objectives permeating
T: the dispositions written below the testator’s dignature to the will the provisions of the law on wills in this Project consists in
are considered as independent of the will itself; hence, they must be the liberalization of the manner of their execution with the
signed and dated by the testator. If one is not dated, even irf signed, end in view of giving the testator more freedom in
that particular disposition will be void, without affecting the validity of expressing his last wishes, but with sufficient safeguards
others or of the will itself. And an unsigned and undated postscript to and restrictions to prevent the commission of fraud and the
a holographic will is invalid as to testamentary disposition. exercise of undue and improper pressure and influence
upon the testator.
Art. 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the last "This objective is in accord with the modern tendency with
disposition has a signature and a date, such date validates the respect to the formalities in the execution of wills." (Report
dispositions preceding it, whatever be the time of prior of the Code Commission, p. 103)
dispositions. (n)
". . . The law has a tender regard for the will of the testator
B: Thus, in case of several additional dispositions the additional ones expressed in his last will and testament on the ground that
before the last are dated but unsigned, only the last will be valid any disposition made by the testator is better than that
provided the last is dated and signed. which the law can make. For this reason, intestate
succession is nothing more than a disposition based upon
Roxas vs. De Jesus the presumed will of the decedent."
Petitioner Simeon R. Roxas testified that after his appointment as Thus, the prevailing policy is to require satisfaction of the legal
administrator, he found a notebook belonging to the deceased requirements in order to guard against fraud and bad faith but
Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a without undue or unnecessary curtailment of testamentary privilege
letter-will addressed to her children and entirely written and signed in (Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in
the handwriting of the deceased Bibiana R. de Jesus was found. The substantial compliance with the formalities of the law, and the
will is dated "FEB./61" and states: "This is my will which I want to be possibility of bad faith and fraud in the exercise thereof is obviated,
respected altho it is not written by a lawyer. . . " said Will should be admitted to probate
On August 24, 1973, respondent Judge Jose C. Colayco issued an We have carefully reviewed the records of this case and found no
order allowing the probate of the holographic Will which he found to evidence of bad faith and fraud in its execution nor was there any
have been duly executed in accordance with law. substitution of Wills and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was
Respondent Luz Roxas de Jesus filed a motion for reconsideration entirely written, dated, and signed by the testatrix herself and in a
alleging inter alia that the alleged holographic Will of the deceased language known to her. There is also no question as to its
Bibiana R. de Jesus was not dated as required by Article 810 of the genuineness and due execution. All the children of the testatrix agree
on the genuineness of the holographic Will of their mother and that
- jann - she had the testamentary capacity at the time of the execution of
said Will. The objection interposed by the oppositor-respondent Luz
Henson is that the holographic Will is fatally defective because the
date "FEB./61" appearing on the holographic Will is not sufficient
compliance with Article 810 of the Civil Code. This objection is too
technical to be entertained.
As a general rule, the "date" in a holographic Will should include the
day, month, and year of its execution. However, when as in the case
36
Wills & Succession/ Atty Uribe The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a holographic Will,
at bar, there is no appearance of fraud, bad faith, undue influence which affect only the efficacy of the altered words themselves but not
and pressure and the authenticity of the Will is established and the the essence and validity of the Will itself. As it is, with the erasures,
only issue is whether or not the date "FEB./61" appearing on the cancellations and alterations made by the testatrix herein, her real
holographic Will is a valid compliance with Article 810 of the Civil intention cannot be determined with certitude. WHEREFORE, this
Code, probate of the holographic Will should be allowed under the Petition is hereby dismissed and the Decision of respondent Judge,
principle of substantial compliance. dated September 3, 1973, is hereby affirmed in toto. No costs
WHEREFORE, the instant petition is GRANTED. The order appealed V. INCORPORATION OF DOCUMENT BY REFERENCE
from is REVERSED and SET ASIDE and the order allowing the
probate of the holographic Will of the deceased Bibiana Roxas de Art. 827. If a will, executed as required by this Code,
Jesus is reinstated incorporates into itself by reference any document or paper,
such document or paper shall not be considered a part of the
Kalaw vs. Relova will unless the following requisites are present:
On September 1, 1971, private respondent GREGORIO K. KALAW, (1) The document or paper referred to in the will must
claiming to be the sole heir of his deceased sister, Natividad K. be in existence at the time of the execution of the will;
Kalaw, filed a petition before the Court of First Instance of Batangas,
Branch VI, Lipa City, for the probate of her holographic Will executed (2) The will must clearly describe and identify the
on December 24, 1968. same, stating among other things the number of pages
thereof;
The holographic Will, as first written, named ROSA K. Kalaw, a sister
of the testatrix as her sole heir. Hence, on November 10, 1971, (3) It must be identified by clear and satisfactory proof
petitioner ROSA K. Kalaw opposed probate alleging, in substance, as the document or paper referred to therein; and
that the holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full signature of (4) It must be signed by the testator and the witnesses
the testatrix as required by Article 814 of the Civil Code reading: on each and every page, except in case of voluminous
books of account or inventories. (n)
"Art. 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will, the Incorporation by reference is an exception to the rule that if an
testator must authenticate the same by his full instrument is not executed with all the formalities of a will it cannot
signature." be admitted to probate. If a will duly executed and witnessed
according to the requirements of the statute, incorporates in itself by
ROSA's position was that the holographic Will, as first written, should reference any document or paper not so executed and witnessed,
be given effect and probated so that she could be the sole heir whether such paper referred to be in the form of a will or codicil, or of
thereunder. a deed or indenture, or of a mere list or memorandum, the paper so
referred to, if it was in existence at the time of the execution of the
From that Order, GREGORIO moved for reconsideration arguing that will and is identified by clear and satisfactory proof as the paper
since the alterations and/or insertions were made by the testatrix, the referred to therein, will take effect as part of the will and be admitted
denial to probate of her holographic Will would be contrary to her to probate as such.
right of testamentary disposition. Reconsideration was denied in an
Order, dated November 2, 1973, on the ground that "Article 814 of To establish a separate writing as part of the will it must appear on its
the Civil Code being clear and explicit, (it) requires no necessity for face the ff:
interpretation."
1. there must be distinct reference to such writing, so explicit
From that order, dated September 3, 1973, denying probate, and the as to identify it beyond doubt, less is sufficient, including
Order dated November 2, 1973 denying reconsideration, ROSA filed parol evidence received.
this Petition for Review on Certiorari on the sole legal question of
whether or not the original unaltered text after subsequent alterations 2. the reference must indicate the writing as already existing;
and insertions were voided by the Trial Court for lack of 3. it can only be given effect to the extent that it appears
authentication by the full signature of the testatrix, should be
probated or not, with her as sole heir. prima facie to have been the wish of the testator.
Ordinarily, when a number of erasures, corrections, and The following must likewise be shown by extrinsic proof:
interlineations made by the testator in a holographic Will have not 1. that it is the very writing referred to in the will;
been noted under his signature, . . . the Will is not thereby invalidated 2. that it was in fact made before will was executed
as a whole, but at most only as respects the particular words erased,
corrected or interlined. 1 Manresa gave an identical commentary B: This article refers to such documents as inventories, books of
when he said "la omision de la salvedad no anula el testamento, account, documents of titile, and papers of similar nature; the docs
segun la regla de jurisprudencia establecida en la sentencia de 4 de should under no circumstances, make testamentary dispositions
Abril de 1895." 2 because formal requirements of wills may be circumvented.
However, when as in this case, the holographic Will in dispute had Can holographic wills incorporate documents by refernce?
only one substantial provision, which was altered by substituting the It depends. No, because par. 4 of this article requires a witness to
original heir with another, but which alteration did not carry the sign on every page except voluminous docs. Only ordinary wills
requisite of full authentication by the full signature of the testator, the requires witnesses unless of course a HW is executed with
effect must be that the entire Will is voided or revoked for the simple witnesses superfluously.
reason that nothing remains in the Will after that which could remain
valid. To state that the Will as first written should be given efficacy is VI. CODICIL
to disregard the seeming change of mind of the testatrix. But that
change of mind can neither be given effect because she failed to A. Definitions and Solemnities
authenticate it in the manner required by law by affixing her full
signature. 37
- jann -
Wills & Succession/ Atty Uribe Rules for revocation:
Art. 825. A codicil is supplement or addition to a will, made after A. if revocation in the Phil. Follow local laws
the execution of a will and annexed to be taken as a part B. if outside the Phil.
thereof, by which disposition made in the original will is
explained, added to, or altered. (n) 1. testator not domiciled in the Phil
Art. 826. In order that a codicil may be effective, it shall be a) follow law of the place where will was made, or
executed as in the case of a will. (n) b) follow law of the domicile of testator at time of
T: After a testator has already made a will, a subsequent instrument revocation
mortis causa may either be a codicil or a new will. If the subsequent
instrument explains the original will, or alters, or adds to it, then it is a 2. testator domiciled in the Phil. Art. 829 not
codicil. But if the later instrument makes dispositions independent of applicable:
those in the original will, then it is a new will, not a codicil. A codicil is
always related to some prior will. a) follow Phil. Law- domiciliary principle, or
b) follow law of place of revocation- lex loci
B: The distinctions, however, is purely academic because Article 826
requires the codicil to be in the form of a will anyway. celebrationis, or
c) follow law of the place where will was made ( by
Must the codicil conform to the form of the will to which it refers?
analogy with Art. 829)
The law does not require this. Thus, an attested will may have a
holographic codicil; a holographic will may have an attested codicil. D. Modes of Revocation
Needles to say, of course, the forms of the will and the codicil may
concur. Art. 830. No will shall be revoked except in the following cases:
VII. REVOCATION OF WILLS AND TESTAMENTARY (1) By implication of law; or
DISPOSITIONS
(2) By some will, codicil, or other writing executed as
A. Definitions of revocation provided in case of wills; or
Revocation is an act of the mind, terminating the potential capacity of (3) By burning, tearing, cancelling, or obliterating the
the will to operate at the death of the testator, manifested by some will with the intention of revoking it, by the testator
outward and visible act or sign, symbolic thereof. himself, or by some other person in his presence, and
by his express direction. If burned, torn, cancelled, or
Revocation is the recall of some power, authority, or a thing granted obliterated by some other person, without the express
or a destroying or making void of some deed that had existence until direction of the testator, the will may still be
the act of revocation made it void. (Black’s Law Dictionary) established, and the estate distributed in accordance
therewith, if its contents, and due execution, and the
Art. 828. A will may be revoked by the testator at any time fact of its unauthorized destruction, cancellation, or
before his death. Any waiver or restriction of this right is void. obliteration are established according to the Rules of
(737a) Court. (n)
T: During the life of the testator the will is said to be ambulatory and There is revocation by implication of law when certain acts or events
may be altered, revoked, or superseded at any time. Its is of no take place subsequent to making of a will, which nullify or render
possible effect as a will while the maker lives. inoperative either the will itself or some testamentary disposition
therein. Examples are the ff:
A will may be revoked at pleasure. Revocation is an act of the mind,
terminating the potential capacity of the will to operate at the death of 1. act of unworthiness by an heir, devisee, or legatee under Art.
the testator, manifested by some outward and visible act or sign, 1032;
symbolic thereof.
2. transformation, alienation or loss of the thing devised or legacy
Revocation vs. Nullity after execution of will (art. 957);
1. act of testator 1. proceeds from law 3. Judicial demand by the testator of a credit given as legacy art.
936;
2. presupposes a valid act 2. inherent from the will
4. preterition of compulsory heirs article 854;
3. inter vivos 3. invoked After death
5. sale of property given as devise or legacy for the payment of the
4. testator cannot renounce 4. can be disregarded by heirs debts of the testator.
B: This characteristic is consistent with the principle laid down in Art. Enumeration is not exclusive.
777, successional rights vest only upon death.
Subsequent Instrument
C. Law Governing revocation A subsequent will containing a clause revoking a previous will should
possess all the requisites of a will, whether it be an ordinary or
Art. 829. A revocation done outside the Philippines, by a person holographic will, and should be probated,in order that the revocatory
who does not have his domicile in this country, is valid when it clause may produce the effect of revoking the previous will.
is done according to the law of the place where the will was
made, or according to the law of the place in which the testator Destruction of a will
had his domicile at the time; and if the revocation takes place in
this country, when it is in accordance with the provisions of this 38
Code. (n)
- jann -
Wills & Succession/ Atty Uribe the reason that the original of Exhibit A has been cancelled by the
deceased father Miguel Mamuyac, the court disallows the probate of
1. the testator must at the time or revocation be of Exhibit A for the applicant." From that order the petitioner appealed.
sound mind. The same degree of mental capacity is
required to revoke a will as to make one; With reference to the said cancellation, it may be stated that there is
positive proof, not denied, which was accepted by the lower court,
2. the burning, tearing, canceling, or obliteration of the that the will in question had been cancelled in 1920. The law does
will must be done with animo revocandi and must not require any evidence of the revocation or cancellation of a will to.
actually be carried out. The mental process or intent be preserved. It therefore becomes difficult at times to prove the
to revoke must concur with the physical fact or actual revocation or cancellation of wills. The fact that such cancellation or
destruction of the will; revocation has taken place must either remain unproved or be
inferred from evidence showing that after due search the original will
where a testatrix was about to burn a will in an envelope, with the cannot be found. Where a will which cannot be found is shown to
intention of revoking it, but a third person fraudulently replced the will have been in the possession of the testator, when last seen, the
inside thought he testatrix believed the will was destroyed, still no presumption is, in the absence of other competent evidence, that the
revocation occurred. However, if the third person is a devisee or same was cancelled or destroyed. The same presumption arises
legatee who prevents the revocation by threats, fraud or violence, the where it is shown that the testator had ready access to the will and it
will is revoked as to him, by implication of law on the ground of cannot be found after his death. It will not be presumed that such will
unworthiness. has been destroyed by any other person without the knowledge or
authority of the testator. The force of the presumption of cancellation
Third person may revoke a will if the same was done in the presence or revocation by the testator, while varying greatly, being weak or
of and by the express direction of the testator. strong according to the circumstances, is never conclusive, but may
In cases where the destruction is unauthorized, there is no be overcome by proof that the will was not destroyed by the testator
revocation, and the contents of the will may be preoved by with intent to revoke it.
secondary evidence.
If the will was already partly burned or torn but was only saved upon In view of the fact that the original will of 1919 could not be found
the interference of a third person the will is still deemed revoked as after the death of the testator Miguel Mamuyac and in view of the
long as the testator intended to. No matter how large or small the positive proof that the same had been cancelled, we are forced to the
extent of the damage to the will even if the same is still legible, the conclusion that the conclusions of the lower court are in accordance
same is still deemed revoked for all intents and purposes. This case with the weight of the evidence.
is to be differentiated from the will that was replaced because here
the actual will itself has commenced destruction. Casiano vs. CA
Gago vs. Mamuyac On October 20, 1963, Adriana Maloto died leaving as heirs her niece
and nephews, the petitioners Aldina Maloto-Casiano and Constancio
The purpose of this action was to obtain the probation of a last will Maloto, and the private respondents Panfilo Maloto and Felino
and testament of Miguel Mamuyac, who died on the 2d day of Maloto. Believing that the deceased did not leave behind a last will
January, 1922, in the municipality of Agoo of the Province of La and testament, these four heirs commenced on November 4, 1963
Union. It appears from the record that on or about the 27th day of an intestate proceeding for the settlement of their aunt's estate. The
July, 1918, the said Miguel Mamuyac executed a last will and case was instituted in the then Court of First Instance of Iloilo and
testament (Exhibit A). In the month of January, 1922, the said was docketed as Special Proceeding No. 1736. However, while the
Francisco Gago presented a petition in the Court of First Instance of case was still in progress, or to be exact on February 1, 1964, the
the Province of La Union for the probation of that will. The probation parties — Aldina, Constancio, Panfilo, and Felino — executed an
of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, agreement of extrajudicial settlement of Adriana's estate. The
Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, agreement provided for the division of the estate into four equal parts
Province of La Union). After hearing all of the parties the petition for among the parties. The Malotos then presented the extrajudicial
the probation of said will was denied by the Honorable C. M. Villareal settlement agreement to the trial court for approval which the court
on the 2d day of November, 1923, upon the ground that the did on March 21, 1964. That should have signalled the end of the
deceased had on the 16th day of April, 1919, executed a new will controversy, but, unfortunately, it had not.
and testament.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma,
On the 21st day of February, 1925, the present action was a former associate of Adriana's counsel, the late Atty. Eliseo Hervas,
commenced. Its purpose was to secure the probation of the said will discovered a document entitled "KATAPUSAN NGA PAGBULUT-AN
of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio (Testamento)," dated January 3, 1940, and purporting to be the last
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina will and testament of Adriana. Atty. Palma claimed to have found the
Mamuyac presented their oppositions, alleging (a) that the said will is testament, the original copy, while he was going through some
a copy of the second will and testament executed by the said Miguel materials inside the cabinet drawer formerly used by Atty. Hervas.
Mamuyac; (b) that the same had been cancelled and revoked during The document was submitted to the office of the clerk of the Court of
the lifetime of Miguel Mamuyac and (c) that the said will was not the First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and
last will and testament of the deceased Miguel Mamuyac. Felino are still named as heirs in the said will, Aldina and Constancio
are bequeathed much bigger and more valuable shares in the estate
"That Exhibit A is a mere carbon copy of its original which remained of Adriana than what they received by virtue of the agreement of
in the possession of the deceased testator Miguel Mamuyac, who extrajudicial settlement they had earlier signed. The will likewise
revoked it before his death as per testimony of witnesses Jose gives devises and legacies to other parties, among them being the
Fenoy, who typed the will of the testator on April 16, 1919, and petitioners Asilo de Molo, the Roman Catholic Church of Molo, and
Carlos Bejar, who saw on December 30, 1920, the original of Exhibit Purificacion Miraflor.
A (will of 1919) actually cancelled by the testator Miguel Mamuyac,
who assured Carlos Bejar that inasmuch as he had sold him a house There is no doubt as to the testamentary capacity of the testatrix and
and the land where the house was built, he had to cancel it the will of the due execution of the will. The heart of the case lies on the issue
1919), executing thereby a new testament. Narcisa Gago in a way as to whether or not the will was revoked by Adriana. The provisions
corroborates the testimony of Jose Fenoy, admitting that the will of the new Civil Code pertinent to the issue can be found in Article
executed by the deceased (Miguel Mamuyac) in 1919 was found in 830.
the possession of father Miguel Mamuyac. The opponents have
successfully established the fact that father Miguel Mamuyac had Art. 830. No will shall be revoked except in the following cases:
executed in 1920 another will. The same Narcisa Gago, the sister of (1) By implication of law; or
the deceased, who was living in the house with him, when cross-
examined by attorney for the opponents, testified that the original of 39
Exhibit A could not be found. For the foregoing consideration and for
- jann -
Wills & Succession/ Atty Uribe If two similar wills are executed on the same day they may
constituted as the same will.
(2) By some will, codicil, or other writing executed as provided
in case of wills: or Art. 832. A revocation made in a subsequent will shall take
(3) By burning, tearing, cancelling, or obliterating the will with effect, even if the new will should become inoperative by reason
of the incapacity of the heirs, devisees or legatees designated
the intention of revoking it, by the testator himself, or by therein, or by their renunciation. (740a)
some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by some The Doctrine of Dependent Relative Revocation entails that the
other person, without the express direction of the testator, revocation will be conditional and dependent upon the efficacy of the
the will may still be established, and the estate distributed new disposition; and if, for any reason, the new will intended to be
in accordance therewith, if its contents, and due execution, made as substitute is inoperative, the revocation fails and the original
and the fact of its unauthorized destruction, cancellation, or will remain in full force. The failure of the new testamentary
obliteration are established according to the Rules of disposition is equivalent to the non-fulfillment of a suspensive
Court. (Emphasis Supplied.) condition which prebvents revocation of the first will.
It is clear that the physical act of destruction of a will, like burning in The article contemplates a case where a subsequent will revokes a
this case, does not per se constitute an effective revocation, unless prior one, and the validity of the later will is established, but its
the destruction is coupled with animus revocandi on the part of the provisions cannot be carried out because of incapacity of or
testator. It is not imperative that the physical destruction be done by renunciation by the beneficiaries named therein. The revocation is
the testator himself. It may be performed by another person but ineffective, because of the clear intent of the testator to revoke ,
under the express direction and in the presence of the testator. Of contained in a valid will. The validity of the new will prevents the
course, it goes without saying that the document destroyed must be operation of the principle of dependent relative revocation, even if the
the will itself. new dispositions cannot be carried out.
The respondent appellate court in assessing the evidence presented Art. 833. A revocation of a will based on a false cause or an
by the private respondents as oppositors in the trial court, concluded illegal cause is null and void. (n)
that the testimony of the two witnesses who testified in favor of the
will's revocation appear "inconclusive." We share the same view. T: if the act of revocation is induced by a belief which turns out to be
Nowhere in the records before us does it appear that the two false, there is no revocation. The fact, with regard to which the
witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both mistake was made, must, however, appear upon the face of the
illiterates, were unequivocably positive that the document burned instrument. Parol evidence not competent tp prove revocation was
was indeed Adriana's will. Guadalupe, we think, believed that the induced by false assumption of fact or law.
papers she destroyed was the will only because, according to her,
Adriana told her so. Eladio, on the other hand, obtained his Where the facts alleged by the testator were peculiarly w/in his
information that the burned document was the will because knowledge, or the testator must have known the truth of the facts
Guadalupe told him so, thus, his testimony on this point is double alleged by him, it does not matter whether they are true or not; the
hearsay. revocation in such case is absolute.
At this juncture, we reiterate that "(it) is an important matter of public B: Requisites for Article 833:
interest that a purported will is not denied legalization on dubious
grounds. Otherwise, the very institution of testamentary succession 1. the cause must be concrete, factual and not purely
will be shaken to its very foundations . . . " 4 subjective
One last note. The private respondents point out that revocation 2. it must be false;
could be inferred from the fact that "(a) major and substantial bulk of 3. the testator must know its falsity
the properties mentioned in the will had been disposed of: while an 4. it must appear that the testator is revoking because of the
insignificant portion of the properties remained at the time of death
(of the testatrix); and, furthermore, more valuable properties have cause which is false.
been acquired after the execution of the will on January 3, 1940." 7 5. the illegal cause should be stated in the will as the cause
Suffice it to state here that as these additional matters raised by the
private respondents are extraneous to this special proceeding, they of revocation
could only be appropriately taken up after the will has been duly
probated and a certificate of its allowance issued. Art. 834. The recognition of an illegitimate child does not lose
its legal effect, even though the will wherein it was made should
WHEREFORE, judgment is hereby rendered REVERSING and be revoked. (714)
SETTING ASIDE the Decision dated June 7, 1985 and the
Resolution dated October 22, 1986, of the respondent Court of T: the recognition does not lose its legal effect even if the will is
Appeals, and a new one ENTERED for the allowance of Adriana revoked, because the recognition is not a testamentary disposition; it
Maloto's last will and testament. Costs against the private takes effect upon the execution of the will and not upon the death of
respondents. the testator.
E. Effect of revocation B: Recognition is an irrevocable act, even if will is revoked
recognition remains.
Art. 831. Subsequent wills which do not revoke the previous
ones in an express manner, annul only such dispositions in the Molo vs. Molo
prior wills as are inconsistent with or contrary to those
contained in the latter wills. (n) Mariano Molo y Legaspi died on January 24, 1941, in the
municipality of Pasay, province of Rizal, without leaving any forced
Revocation may be: heir either in the descending or ascending line. He was survived,
Express- when the later declares the former or all former wills however, by his wife, the herein petitioner Juana Juan Vda. de Molo,
revoked.
40
Implied- when it merely makes disposition inconsistent with the
provisions of the former wills, the later will annuls only such
disposiotion in prior wills as are inconsisten with those contained in
the subsequent will. Or if there appears an intention of the testator to
dispose of his property in a manner different from the first will, it is to
the extent revoked.
- jann -
Wills & Succession/ Atty Uribe cancels or destroys a will or executes an instrument
intended to revoke a will with a present intention to make a
and by his nieces and nephew, the oppositors-appellants, Luz, new testamentary disposition as a substitute for the old,
Gliceria and Cornelio, all surnamed Molo, who were the legitimate and the new disposition is not made or, if made, fails of
children of Candido Molo y Legaspi, deceased brother of the testator. effect for some reason. The doctrine is not limited to the
Mariano Molo y Legaspi left two wills, one executed on August 17, existence of some other document, however, and has
1918, (Exhibit A) and another executed on June 20, 1939, (Exhibit I). been applied where a will was destroyed as a
The latter will contains a clause which expressly revokes the will consequence of a mistake of law . . .." (68 C. J. p. 799).
executed in 1918.
"The rule is established that where the act of destruction is
The next contention of appellants refers to the revocatory clause connected with the making of another will so as fairly to
contained in the 1939 will of the deceased which was denied raise the inference that the testator meant the revocation
probate. They contend that, notwithstanding the disallowance of said of the old to depend upon the efficacy of the new
will, the revocatory clause is valid and still has the effect of nullifying disposition intended to be substituted, the revocation will
the prior will of 1918. Counsel for petitioner meets this argument by be conditional and dependent upon the efficacy of the new
invoking the doctrine laid down in the case of Samson vs. Naval, (41 disposition; and if, for any reason, the new will intended to
Phil., 838). He contends that the facts involved in that case are on all be made as a substitute is inoperative, the revocation fails
fours with the facts of this case. Hence, the doctrine in that case is and the original will remains in full force." (Gardner, pp.
here controlling. 232, 233.)
There is merit in this contention. We have carefully read the facts "This is the doctrine of dependent relative revocation. The
involved in the Samson case and we are indeed impressed by their failure of the new testamentary disposition, upon whose
striking similarity with the facts of this case. We do not need to recite validity the revocation depends, is equivalent to the non-
here what those facts are; it is enough to point out that they contain fulfillment of a suspensive condition, and hence prevents
many points and circumstances in common. No reason, therefore, is the revocation of the original will. But a mere intent to
seen why the doctrine laid down in that case (which we quote make at some time a will in place of that destroyed will not
hereunder) should not apply and control the present case. render the destruction conditional. It must appear that the
revocation is dependent upon the valid execution of a new
"A subsequent will, containing a clause revoking a previous will, will." (1 Alexander, p. 751; Gardner, p. 233.)
having been disallowed, for the reason that it was not executed in
conformity with the provisions of section 618 of the Code of Civil We hold, therefore, that even in the supposition that the destruction
Procedure as to the making of wills, cannot produce the effect of of the original will by the testator could be presumed from the failure
annulling the previous will, inasmuch as said revocatory clause is of the petitioner to produce it in court, such destruction cannot have
void." (41 Phil., 838.) the effect of defeating the prior will of 1918 because of the fact that it
is founded on the mistaken belief that the will of 1939 has been
"It is universally agreed that where the second will is validly executed and would be given due effect. The theory on which
invalid on account of not being executed in accordance this principle is predicated is that the testator did not intend to die
with the provisions of the statute, or where the testator has intestate. And this intention is clearly manifest when he executed two
not sufficient mental capacity to make a will or the will is wills on two different occasions and instituted his wife as his
procured through undue influence, or the such, in other universal heir. There can therefore be no mistake as to his intention
words, where the second will is really no will, it does not of dying testate.
revoke the first will or affect it in any manner." Mort vs.
Baker University (1935) 229 Mo. App., 632, 78 S. W. (2d), The remaining question to be determined refers to the sufficiency of
498." the evidence to prove the due execution of the will.
These treaties cannot be mistaken. They uphold the view on which The will in question was attested, as required by law, by three
the ruling in the Samson case is predicated. They reflect the opinion witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca.
that this ruling is sound and good and for this reason we see no The first two witnesses died before the commencement of the
justification for abandoning it as now suggested by counsel for the present proceedings. So the only instrumental witness available was
oppositors. Angel Cuenca and under our law and precedents, his testimony is
sufficient to prove the due execution of the will. However, petitioner
It is true that our law on the matter (sec. 623, Code of Civil presented not only the testimony of Cuenca but placed on the
Procedure) provides that a will may be revoked "by some will, codicil, witness stand Juan Salcedo, the notary public who prepared and
or other writing executed as provided in case of wills"; but it cannot notarized the will upon the express desire and instruction of the
be said that the 1939 will should be regarded, not as a will within the testator. The testimony of these witnesses shows that the will had
meaning of said word, but as "other writing executed as provided in been executed in the manner required by law. We have read their
the case of wills", simply because it was denied probate. And even if testimony and we were impressed by their readiness and sincerity.
it be regarded as any other writing within the meaning of said clause, We are convinced that they told the truth.
there is authority for holding that unless said writing is admitted to
probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. VIII. REPUBLICATION AND REVIVAL OF WILLS
329-330).
Art. 835. The testator cannot republish, without reproducing in a
Granting for the sake of argument that the earlier will was voluntarily subsequent will, the dispositions contained in a previous one
destroyed by the testator after the execution of the second will, which which is void as to its form. (n)
revoked the first, could there be any doubt, under this theory, that
said earlier will was destroyed by the testator in the honest belief that Art. 836. The execution of a codicil referring to a previous will
it was no longer necessary because he had expressly revoked it in has the effect of republishing the will as modified by the codicil.
his will of 1939? In other words, can we not say that the destruction (n)
of the earlier will was but the necessary consequence of the
testator's belief that the revocatory clause contained in the Art. 837. If after making a will, the testator makes a second will
subsequent will was valid and the latter would be given effect? If expressly revoking the first, the revocation of the second will
such is the case, then it is our opinion that the earlier will can still be does not revive the first will, which can be revived only by
admitted to probate under the principle of "dependent relative another will or codicil. (739a)
revocation".
41
"This doctrine is known as that of dependent relative
revocation, and is usually applied where the testator
- jann -
Wills & Succession/ Atty Uribe and between "[T]he heir and son of Francisco de Borja by his first
marriage, namely, Jose de Borja personally and as administrator of
IX. ALLOWANCE OF WILLS the Testate Estate of Josefa Tangco," and "[T]he heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana
Art. 838. No will shall pass either real or personal property Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis
unless it is proved and allowed in accordance with the Rules of Panaguiton, Jr."
Court.
On 16 May 1966, Jose de Borja submitted for Court approval the
The testator himself may, during his lifetime, petition the court agreement of 12 October 1963 to the Court of First Instance of Rizal,
having jurisdiction for the allowance of his will. In such case, in Special Proceeding No. R-7866; and again, on 8 August 1966, to
the pertinent provisions of the Rules of Court for the allowance the Court of First Instance of Nueva Ecija, in Special Proceeding No.
of wills after the testator's a death shall govern. 832. Tasiana Ongsingco Vda. de de Borja opposed in both
instances. The Rizal court approved the compromise agreement, but
The Supreme Court shall formulate such additional Rules of the Nueva Ecija court declared it void and unenforceable. Special
Court as may be necessary for the allowance of wills on petition administratrix Tasiana Ongsingco Vda. de de Borja appealed the
of the testator. Rizal Court's order of approval (now Supreme Court G.R. case No.
L-28040), while administrator Jose de Borja appealed the order of
Subject to the right of appeal, the allowance of the will, either disapproval (G.R. case No. L-28568) by the Court of First Instance of
during the lifetime of the testator or after his death, shall be Nueva Ecija.
conclusive as to its due execution. (n)
The genuineness and due execution of the compromise agreement
A. Concept of Probate of 12 October 1963 is not disputed, but its validity is, nevertheless,
To probate a will means to prove before some officer or tribunal, attacked by Tasiana Ongsingco on the ground that: (1) the heirs
vested by law with authority for that purpose, that the instrument cannot enter into such kind of agreement without first probating the
offered to be proved is the last will and testament of the deceased will of Francisco de Borja; (2) that the same involves a compromise
person whose testamentary act it is alleged to be, and that it has on the validity of the marriage between Francisco de Borja and
been executed, attested and published as required by law, and that Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to
the testator was of sound and disposing mind. It is a civil proceeding have force and effect.
to establish the validity of the will.
In assailing the validity of the agreement of 12 October 1963,
Revocation vs. Disallowance Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this
1. by decree of court Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the
1. by the act of testator 2. exclusive grounds by law Court's majority held the view that the presentation of a will for
3. entire will probate is mandatory and that the settlement and distribution of an
2. even without cause estate on the basis of intestacy when the decedent left a will, is
against the law and public policy. It is likewise pointed out by
3. may be partial appellant Tasiana Ongsingco that Section 1 of Rule 74 of the
Revised Rules explicitly conditions the validity of an extrajudicial
B. Necessity of Probate settlement of a decedent's estate by agreement between heirs, upon
the facts that "(if) the decedent left no will and no debts, and the
A final decree of probate is conclusive as to the due execution and heirs are all of age, or the minors are represented by their judicial
formal validity of a will, hence, probate is necessary to determine the and legal representatives . . ." The will of Francisco de Borja having
following: been submitted to the Nueva Ecija Court and still pending probate
when the 1963 agreement was made, those circumstances, it is
1. testator was of sound mind argued, bar the validity of the agreement.
2. consent was not vitiated
3. will was signed by the required number of witnesses Upon the other hand, in claiming the validity of the compromise
4. it is genuine and authentic agreement, Jose de Borja stresses that at the time it was entered
into, on 12 October 1963, the governing provision was Section 1,
In sum it involves: Rule 74 of the original Rules of Court of 1940, which allowed the
extrajudicial settlement of the estate of a deceased person
a. Testatmentary Capacity regardless of whether he left a will or not. He also relies on the
b. due execution thereof dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil.
c. genuineness 479, wherein was expressed the view that if the parties have already
divided the estate in accordance with a decedent's will, the probate
6. De Borja vs. De Borja of the will is a useless ceremony; and if they have divided the estate
in a different manner, the probate of the will is worse than useless.
It is uncontested that Francisco de Borja, upon the death of his wife
Josefa Tangco on 6 October 1940, filed a petition for the probate of This provision evidences beyond doubt that the ruling in the Guevara
her will which was docketed as Special Proceeding No. R-7866 of case is not applicable to the cases at bar. There was here no attempt
the Court of First Instance of Rizal, Branch I. The will was probated to settle or distribute the estate of Francisco de Borja among the
on 2 April 1941. In 1946, Francisco de Borja was appointed executor heirs thereto before the probate of his will. The clear object of the
and administrator: in 1952, their son, Jose de Borja, was appointed contract was merely the conveyance by Tasiana Ongsingco of any
co-administrator. When Francisco died, on 14 April 1954, Jose and all her individual share and interest, actual or eventual, in the
became the sole administrator of the testate estate of his mother, estate of Francisco de Borja and Josefa Tangco. There is no
Jose Tangco While a widower Francisco de Borja allegedly took unto stipulation as to any other claimant, creditor or legatee And as a
himself a second wife, Tasiana Ongsingco. Upon Francisco's death, hereditary share in a decedent's estate is transmitted or vested
Tasiana instituted testate proceedings in the Court of First Instance immediately from the moment of the death of such causante or
of Nueva Ecija, where, in 1955, she was appointed special predecessor in interest (Civil Code of the Philippines, Art. 777) 3
administratrix. The validity of Tasiana's marriage to Francisco was there is no legal bar to a successor (with requisite contracting
questioned in said proceeding. capacity) disposing of her or his hereditary share immediately after
such death, even if the actual extent of such share is not determined
The relationship between the children of the first marriage and until the subsequent liquidation of the estate. 4 Of course, the effect
Tasiana Ongsingco has been plagued with several court suits and of such alienation is to be deemed limited to what is ultimately
counter-suits; including the three cases at bar, some eighteen (18) adjudicated to the vendor heir. However, the aleatory character of
cases remain pending determination in the courts. The testate estate the contract does not affect the validity of the transaction; neither
of Josefa Tangco alone has been unsettled for more than a quarter does the coetaneous agreement that the numerous litigations
of a century. In order to put an end to all these litigations, a
compromise agreement was entered into on 12 October 1963, 2 by 42
- jann -
Wills & Succession/ Atty Uribe the inability to reach a novatory accord can not invalidate the original
compromise (Annex "A") and justifies the act of Jose de Borja in
between the parties (the approving order of the Rizal Court finally seeking a court order for its approval and enforcement from
enumerates fourteen of them, Rec. App. pp. 79-82) are to be the Court of First Instance of Rizal, which, as heretofore described,
considered settled and should be dismissed, although such decreed that the agreement be ultimately performed within 120 days
stipulation, as noted by the Rizal Court, gives the contract the from the finality of the order, now under appeal. We conclude that in
character of a compromise that the law favors, for obvious reasons, if so doing, the Rizal court acted in accordance with law, and,
only because it serves to avoid a multiplicity of suits. therefore, its order should be upheld, while the contrary resolution of
the Court of First Instance of Nueva Ecija should be, and is,
It is likewise worthy of note in this connection that as the surviving reversed.
spouse of Francisco de Borja, Tasiana Ongsingco was his
compulsory heir under article 995 et seq. of the present Civil Code. C. Modes of Probate
Wherefore, barring unworthiness or valid disinheritance, her
successional interest existed independent of Francisco de Borja's Two kinds of probate under Art. 838
last will and testament, and would exist even if such will were not
probated at all. Thus, the prerequisite of a previous probate of the 1. Ante mortem probate or that which is had during the
will, as established in the Guevara and analogous cases, can not lifetime of the testator. This is an innovation to our laws on
apply to the case of Tasiana Ongsingco Vda. de de Borja. succession.
This brings us to the plea that the Court of First In stance of Rizal Ratio:
had no jurisdiction to approve the compromise with Jose de Borja a. easier for the courts to determine the mental condition of
(Annex A) because Tasiana Ongsingco was not an heir in the estate
of Josefa Tangco pending settlement in the Rizal Court, but she was testator during his lifetime.
an heir of Francisco de Borja, whose estate was the object of Special b. Fraud, intimidation, undue influence are minimized
Proceeding No. 832 of the Court of First Instance of Nueva Ecija. c. If will found to be non conforming to the requirements
This circumstance is irrelevant, since what was sold by Tasiana
Ongsingco was only her eventual share in the estate of her late provided for by law the same maybe corrected at once
husband, not the estate itself; and as already shown, that eventual d. Will lessen the number of contest upon wills, since testator
share she owned from the time of Francisco's death and the Court of
Nueva Ecija could not bar her selling it. As owner of her undivided still alive his animus testandi is determinable at once.
hereditary share, Tasiana could dispose of it in favor of whomsoever
she chose Such alienation is expressly recognized and provided for 2. Post mortem or that which is had after death
by article 1088 of the present Civil Code:
D. Requirements for Probate
Art. 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be The Revised rules of Court provides for the requirements and
subrogated to the rights of the purchaser by reimbursing him for the procedure for probating a will as follows:
price of the sale, provided they do so within the period of one month
from the time they were notified in writing of the sale of the vendor." RULE 75
Tasiana Ongsingco further argues that her contract with Jose de PRODUCTION OF WILL. ALLOWANCE OF WILL
Borja (Annex "A") is void because it amounts to a compromise as to NECESSARY
her status and marriage with the late Francisco de Borja. The point is
without merit, for the very opening paragraph of the agreement with SECTION 1. Allowance necessary. Conclusive as to
Jose de Borja (Annex "A") describes her as "the heir and surviving execution.—No will shall pass either real or personal estate
spouse of Francisco de Borja by his second marriage, Tasiana unless it is proved and allowed in the proper court. Subject to
Ongsingco Vda. de de Borja", which is in itself definite admission of the right of appeal, such allowance of the will shall be
her civil status. There is nothing in the text of the agreement that conclusive as to its due execution.
would show that this recognition of Ongsingco's status as the
surviving spouse of Francisco de Borja was only made in SEC. 2. Custodian of will to deliver.—The person who
consideration of the cession of her hereditary rights. has custody of a will shall, within twenty (20) days after he
knows of the death of the testator, deliver the will to the court
It is difficult to believe, however, that the amicable settlement having jurisdiction, or to the executor named In the will.
referred to in the order and motion above-mentioned was the
compromise agreement of 13 October 1963, which already had been SEC. 3. Executor to present will and accept or refuse
formally signed and executed by the parties and duly notarized. What trust.—A person named as executor in a will shall, within
the record discloses is that some time after its formalization, twenty (20) days after he knows of the death of the testator,
Ongsingco had unilaterally attempted to back out from the or within twenty (20) days after he knows that be is named
compromise agreement, pleading various reasons restated in the executor if he obtained such knowledge after the death of the
opposition to the Court's approval of Annex "A" (Record on Appeal, testator, present such will to the court having jurisdiction,
L-20840, page 23): that the same was invalid because of the lapse of unless the will has reached the court in any other manner,
the allegedly intended resolutory period of 60 days and because the and shall, within such period, signify to the court in writing his
contract was not preceded by the probate of Francisco de Borja's acceptance of the trust or his refusal to accept it.
will, as required by this Court's Guevarra vs. Guevara ruling; that
Annex "A" involved a compromise affecting Ongsingco's status as SEC. 4. Custodian and executor subject to fine for
wife and widow of Francisco de Borja, etc., all of which objections neglect.—A person who neglects any of the duties required
have been already discussed. in the two last preceding sections without excuse satisfactory
to the court shall be fined not exceeding two thousand pesos.
It was natural that in view of the widow's attitude, Jose de Borja
should attempt to reach a new settlement or novatory agreement SEC. 5. Person retaining will may be committed.—A
before seeking judicial sanction and enforcement of Annex "A", since person having custody of a will after the death of the testator
the latter step might ultimately entail a longer delay in attaining final who neglects without reasonable cause to deliver the same,
remedy. That the attempt to reach another settlement failed is when ordered so to do, to the court having jurisdiction, may
apparent from the letter of Ongsingco's counsel to Jose de Borja be committed to prison and there kept until he delivers the
quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. will.
No. L-28040; and it is more than probable that the order of 21
September 1964 and the motion of 17 June 1964 referred to the 43
failure of the parties' quest for a more satisfactory compromise. But
- jann -
Wills & Succession/ Atty Uribe introduction of testimony in support of the will. All such
testimony shall be taken under oath and reduced to writing. If
RULE 76 no person appears to contest the allowance of the will, the
court may grant allowance thereof on the testimony of one of
ALLOWANCE OR DISALLOWANCE OF WILL the subscribing witnesses only, if such witness testify that the
will was executed as is required by law.
SECTION 1. Who may petition for the allowance of
will.—Any executor, devisee, or legatee named in a will, or In the case of a holographic will, it shall be necessary
any other person interested in the estate, may, at any time that at least one witness who knows the handwriting and
after the death of the testator, petition the court having signature of the testator explicitly declare that the will and the
jurisdiction to have the will allowed, whether the same be in signature are in the handwriting of the testator. In the
his possession or not, or is lost or destroyed. absence of any such competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
The testator himself may, during his lifetime, petition the
court for the allowance of his will. SEC. 6. Proof of lost or destroyed will. Certificate
thereupon.—No will shall be proved as a lost or destroyed
SEC. 2. Contents of petition.—A petition for the will unless the execution and validity of the same be
allowance of a will must show, so far as known to the established and the will is proved to have been in existence
petitioner: at the time of the death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the lifetime of
(a) The jurisdictional facts; the testator without his knowledge, nor unless its provisions
are clearly and distinctly proved by at least two (2) credible
(b) The names, ages, and residences of the witnesses. When a lost will is proved, the provisions thereof
heirs, legatees, and devisees of the testator or must be distinctly stated and certified by the judge, under the
decedent; seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.
(c) The probable value and character of the
property of the estate; SEC. 7. Proof when witnesses do not reside in
province.—If it appears at the time fixed for the hearing that
(d) The name of the person for whom letters none of the subscribing witnesses resides in the province,
are prayed; but that the deposition of one or more of them can be taken
elsewhere, the court may, on motion, direct It to be taken,
(e) If the will has not been delivered to the and may authorize a photographic copy of the will to be
court, the name of the person having custody of it. made and to be presented to the witness on his examination,
who may be asked the same questions with respect to it and
But no defect in the petition shall render void the to the handwriting of the testator and others, as would be
allowance of the will, or the issuance of letters testamentary pertinent and competent if the original will were present.
or of administration with the will annexed.
SEC. 8. Proof when witnesses dead or insane or do not
SEC. 3. Court to appoint time for proving will. Notice reside in the Philippines.—If it appears at the time fixed for
thereof to be published.—When a will is delivered to, or a the hearing that the subscribing witnesses are dead or
petition for the allowance of a will is filed in, the court having insane, or that none of them resides in the Philippines, the
jurisdiction, such court shall fix a time and place for proving court may admit the testimony of other witnesses to prove
the will when all concerned may appear to contest the the sanity of the testator, and the due execution of the will;
allowance thereof, and shall cause notice of such time and and as evidence of the execution of the will, it may admit
place to be published three (3) weeks successively, previous proof of the handwriting of the testator and of the subscribing
to the time appointed, in a newspaper of general circulation witnesses, or of any of them.
in the province.
SEC. 9. Grounds for disallowing will.—The will shall be
But no newspaper publication shall be made where the disallowed in any of the following cases:
petition for probate has been filed by the testator himself.
(a) If not executed and attested as required by
SEC. 4. Heirs, devisees, legatees, and executors to be law;
notified by mail or personally.—The court shall also cause
copies of the notice of the time and place fixed for proving (b) If the testator was insane, or otherwise
the will to be addressed to the designated or other known mentally incapable to make a will, at the time of its
heirs, legatees, and devisees of the testator resident in the execution;
Philippines at their places of residence, and deposited in the
post office with the postage thereon prepaid at least twenty (c) If it was executed under duress, or the
(20) days before the hearing, if such places of residence be influence of fear, or threats;
known. A copy of the notice must in like manner be mailed to
the person named as executor, if he be not the petitioner, (d) If it was procured by undue and improper
also, to any person named as co-executor not petitioning, if pressure and influence, on the part of the beneficiary, or
their places of residence be known. Personal service of of some other person for his benefit;
copies of the notice at least ten (10) days before the day of
hearing shall be equivalent to mailing. (e) If the signature of the testator was procured
by fraud or trick, and he did not intend that the
If the testator asks for the allowance of his own will, instrument should be his will at the time of fixing his
notice shall be sent only to his compulsory heirs. signature thereto.
SEC. 5. Proof at hearing. What sufficient in absence of 44
contest.—At the hearing compliance with the provisions of
the last two preceding sections must be shown before the
- jann -
Wills & Succession/ Atty Uribe On November 20, 1951, Felicidad Esguerra Alto Yap died of heart
failure in the University of Santo Tomas Hospital, leaving properties
SEC. 10. Contestant to file grounds of contest.— in Pulilan, Bulacan, and in the City of Manila.
Anyone appearing to contest the will must state in writing his
grounds for opposing its allowance, and serve a copy thereof On March 17, 1952, Fausto E. Gan initiated these proceedings in the
on the petitioner and other parties interested in the estate. Manila court of first instance with a petition for the probate of a
holographic will allegedly executed by the deceased, Opposing the
SEC. 11. Subscribing witnesses produced or accounted petition, her surviving husband Ildefonso Yap asserted that the
for where will contested.—If the will is contested, all the deceased had not left any will, nor executed any testament during
subscribing witnesses, and the notary in the case of wills her lifetime.
executed under the Civil Code of the Philippines, if present in
the Philippines, and not insane, must be produced and Sometime in 1950 after her last trip abroad, Felicidad Esguerra
examined, and the death, absence, or insanity of any of them mentioned to her first cousin, Vicente Esguerra, her desire to make a
must be satisfactorily shown to the court. If all or some of will. She confided however that it would be useless if her husband
such witnesses are present in the Philippines but outside the discovered or knew about it. Vicente consulted with Fausto E. Gan,
province where the will has been filed, their deposition must nephew of Felicidad, who was then preparing for the bar
be taken. If any or all of them testify against the due examinations. The latter replied it could be done without any witness,
execution of the will, or do not remember having attested to provided the document was entirely in her handwriting, signed and
it, or are otherwise of doubtful credibility, the will may, dated by her. Vicente Esguerra lost no time in transmitting the
nevertheless, be allowed if the court is satisfied from the information, and on the strength of it, in the morning of November 5,
testimony of other witnesses and from all the evidence 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
presented that the will was executed and attested in the signed and dated a holographic will substantially of the tenor above
manner required by law. transcribed, in the presence of her niece, Felina Esguerra (daughter
of Vicente), who was invited to read it. In the afternoon of that day,
If a holographic will is contested, the same shall be Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed if at least three (3) witnesses who know the allowed him to read the will in the presence of Felina Esguerra, who
handwriting of the testator explicitly declare that the will and again read it.
the signature are in the handwriting of the testator; in the
absence of any competent witness, and if the court deem it The trial judge refused to credit the petitioner's evidence for several
necessary, expert testimony may be resorted to. reasons, the most important of which were these: (a) if according to
his evidence, the decedent wanted to keep her will a secret, so that
SEC. 12. Proof where testator petitions for allowance of her husband would not know it, it is strange she executed it in the
holographic will.—Where the testator himself petitions for the presence of Felina Esguerra, knowing as she did that witnesses
probate of his holographic will and no contest is filed, the fact were unnecessary; (b) in the absence of a showing that Felina was a
that he affirms that the holographic will and the signature are confidant of the decedent it is hard to believe that the latter would
in his own handwriting, shall be sufficient evidence of the have allowed the former to see and read the will several times; (c) it
genuineness and due execution thereof. If the holographic is improbable that the decedent would have permitted Primitivo
will is contested, the burden of disproving the genuineness Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will,
and due execution thereof shall be on the contestant The when she precisely wanted its contents to remain a secret during her
testator may, in his turn, present such additional proof as lifetime; (d) it is also improbable that her purpose being to conceal
may be necessary to rebut the evidence for the contestant. the will from her husband she would carry it around, even to the
hospital, in her purse which could for one reason or another be
SEC. 13. Certificate of allowance attached to proved opened by her husband; (e) if it is true that the husband demanded
will. To be recorded in the Office of Register of Deeds.—If the purse from Felina in the U.S.T. Hospital and that the will was
the court is satisfied, upon proof taken and filed, that the will there, it is hard to believe that he returned it without destroying the
was duly executed, and that the testator at the time of its will, the theory of the petitioner being precisely that the will was
execution was of sound and disposing mind, and not acting executed behind his back for fear he will destroy it.
under duress, menace, and undue influence, or fraud, a
certificate of its allowance, signed by the judge, and attested The New Civil Code effective in 1950 revived holographic wills in its
by the seal of the court shall be attached to the will and the arts. 810-814. "A person may execute a holographic will which must
will and certificate filed and recorded by the clerk. Attested be entirely written, dated, and signed by the hand of the testator
copies of the will devising real estate and of certificate of himself. It is subject to no other form and may be made in or out of
allowance thereof, shall be recorded in the register of deeds the Philippines, and need not be witnessed."
of the province in which the lands lie.
The object of such requirements it has been said, is to close the door
Art. 811. In the probate of a holographic will, it shall be against bad faith and fraud, to prevent substitution of wills, to
necessary that at least one witness who knows the handwriting guarantee their truth and authenticity (Abangan vs. Abangan, 40
and signature of the testator explicitly declare that the will and Phil., 476) and to avoid that those who have no right to succeed the
the signature are in the handwriting of the testator. If the will is testator would succeed him and be benefited with the probate of
contested, at least three of such witnesses shall be required. same. (Mendoza vs. Pilapil, 40 off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the
In the absence of any competent witness referred to in the instrument is duly proved.
preceding paragraph, and if the court deem it necessary, expert
testimony may be resorted to. (619a) Now, in the matter of holographic wills, no such guaranties of truth
and veracity are demanded, since as stated, they need no witnesses;
Gan vs. Yap provided however, that they are "entirely written, dated, and signed
by the hand of the testator himself." The law, it is reasonable to
- jann - suppose, regards the document itself as material proof of
authenticity, and as its own safeguard, since it could at any time, be
demonstrated to be — or not to be — in the hands of the testator
himself. "In the probate of a holographic will" says the New Civil
Code, "it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the testator. If the will
is contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent's
45
Wills & Succession/ Atty Uribe husband's trip to Davao, a few days after the alleged execution of the
will.
handwriting) and if the court deem it necessary, expert testimony
may be resorted to." In fine, even if oral testimony were admissible to establish and
probate a lost holographic will, we think the evidence submitted by
The witnesses so presented do not need to have seen the execution herein petitioner is so tainted with improbabilities and inconsistencies
of the holographic will. They may be mistaken in their opinion of the that it fails to measure up to that "clear and distinct" proof required by
handwriting, or they may deliberately lie in affirming it is in the Rule 77, sec. 6. 11
testator's hand. However, the oppositor may present other witnesses
who also know the testator's handwriting, or some expert witnesses, Rodelas vs. Aranza
who after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been ". . . On January 11, 1977, appellant filed a petition with
written by the hand of the deceased. (Sec. 50, Rule 123). And the the Court of First Instance of Rizal for the probate of the
court, in view of such contradictory testimony may use its own visual holographic will of Ricardo B. Bonilla and the issuance of
sense, and decide in the face of the document, whether the will letters testamentary in her favor. The petition, docketed as
submitted to it has indeed been written by the testator. Sp. Proc. No. 8432, was opposed by the appellees
Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita
Taking all the above circumstances together, we reach the Bonilla Frias and Ephraim Bonilla on the following grounds:
conclusion that the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of "(3) The alleged holographic will itself, and
witnesses who have seen and/or read such will. not an alleged copy thereof, must be produced,
otherwise it would produce no effect, as held in
At this point, before proceeding further, it might be convenient to Gan v. Yap, 104 Phil. 509; and
explain why, unlike holographic wills, ordinary wills may be proved by
testimonial evidence when lost or destroyed. The difference lies in The only question here is whether a holographic will which was
the nature of the wills. In the first, the only guarantee of authenticity lost or can not be found can be proved by means of a
is the handwriting itself; in the second, the testimony of the photostatic copy. Pursuant to Article 811 of the Civil Code, probate
subscribing or instrumental witnesses (and of the notary, now). The of holographic wills is the allowance of the will by the court after its
loss of the holographic will entails the loss of the only medium of due execution has been proved. The probate may be uncontested or
proof; if the ordinary will is lost, the subscribing witnesses are not. If uncontested, at least one identifying witness is required and, if
available to authenticate. no witness is available, experts may be resorted to. If contested, at
least three identifying witnesses are required. However, if the
In the case of ordinary wills, it is quite hard to convince three holographic will has been lost or destroyed and no other copy is
witnesses (four with the notary) deliberately to lie. And then their lies available, the will can not be probated because the best and only
could be checked and exposed, their whereabouts and acts on the evidence is the handwriting of the testator in said will. It is necessary
particular day, the likelihood that they would be called by the testator, that there be a comparison between sample handwritten statements
their intimacy with the testator, etc. And if they were intimates or of the testator and the handwritten will. But, a photostatic copy or
trusted friends of the testator they are not likely to lend themselves to xerox copy of the holographic will may be allowed because
any fraudulent scheme to distort his wishes. Last but not least, they comparison can be made with the standard writings of the testator. In
can not receive anything on account of the will. the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the
execution and the contents of a lost or destroyed holographic will
Whereas in the case of holographic wills, if oral testimony were may not be proved by the bare testimony of witnesses who have
admissible 9 only one man could engineer the whole fraud this way: seen and/or read such will. The will itself must be presented;
after making a clever or passable imitation of the handwriting and otherwise, it shall produce no effect. The law regards the
signature of the deceased, he may contrive to let three honest and document itself as material proof of authenticity." But, in
credible witnesses see and read the forgery; and the latter, having no Footnote 8 of said decision, it says that "Perhaps it may be proved
interest, could easily fall for it, and in court they would in all good by a photographic or photostatic copy. Even a mimeographed or
faith affirm its genuineness and authenticity. The will having been carbon copy; or by other similar means, if any, whereby the
lost — the forger may have purposely destroyed it in an "accident" — authenticity of the handwriting of the deceased may be exhibited and
the oppositors have no way to expose the trick and the error, tested before the probate court." Evidently, the photostatic or xerox
because the document itself is not at hand. And considering that the copy of the lost or destroyed holographic will may be admitted
holographic will may consist of two or three pages, and only one of because then the authenticity of the handwriting of the deceased can
them need be signed, the substitution of the unsigned pages, which be determined by the probate court.
may be the most important ones, may go undetected.
WHEREFORE, the order of the lower court dated October 3, 1979,
If testimonial evidence of holographic wills be permitted, one more denying appellant's motion for reconsideration dated August 9, 1979,
objectionable feature — feasibility of forgery — would be added to of the Order dated July 23, 1979, dismissing her petition to approve
the several objections to this kind of wills listed by Castan, Sanchez the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
Roman and Valverde and other well-known Spanish Commentators
and teachers of Civil Law. 10 Azaola vs. Singson
One more fundamental difference: in the case of a lost will, the three "Briefly speaking, the following facts were established by
subscribing witnesses would be testifying to a fact which they saw, the petitioner; that on September 9, 1957, Fortunata S.
namely the act of the testator of subscribing the will; whereas in the Vda. de Yance died at 13 Luskot, Quezon City, known to
case of a lost holographic will, the witnesses would testify as to their be the last residence of said testatrix; that Francisco
opinion of the handwriting which they allegedly saw, an opinion Azaola, petitioner herein for probate of the holographic will,
which can not be tested in court, nor directly contradicted by the submitted the said holographic will (Exh. C) whereby Maria
oppositors, because the handwriting itself is not at hand. Milagros Azaola was made the sole heir as against the
nephew of the deceased Cesario Singson; that witness
Turning now to the evidence presented by the petitioner, we find Francisco Azaola testified that he saw the holographic will
ourselves sharing the trial judge's disbelief. In addition to the dubious (Exh. C) one month, more or less, before the death of the
circumstances described in the appealed decision, we find it hard to testatrix, as the same was handed to him and his wife; that
believe that the deceased should show her will precisely to relatives the witness testified also that he recognized all the
who had received nothing from it: Socorro Olarte and Primitivo signatures appearing in the holographic will (Exh. C) as the
Reyes. These could pester her into amending her will to give them a handwriting of the testatrix and to reinforce said statement,
share, or threaten to reveal its execution to her husband Ildefonso witness presented the mortgage (Exh. E), the special
Yap. And this leads to another point: if she wanted so much to
conceal the will from her husband, why did she not entrust it to her 46
beneficiaries? Opportunity to do so was not lacking: for instance, her
- jann -
Wills & Succession/ Atty Uribe contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
power of attorney (Exh. F), and the general power of Francisco, 57 Phil. 742). But it can not be ignored that the
attorney (Exh. F-1), besides the deeds of sale (Exhs. G requirement can be considered mandatory only in the case of
and G-1) including an affidavit (Exh. G-2), and that there ordinary testaments, precisely because the presence of at least three
were further exhibited in court two residence certificates witnesses at the execution of ordinary wills is made by law essential
(Exhs. H and H-1) to show the signatures of the testatrix, to their validity (Art. 805). Where the will is holographic, no witness
for comparison purposes; that said witness, Azaola, need be present (Art. 10), and the rule requiring production of three
testified that the penmanship appearing in the aforesaid witnesses must be deemed merely permissive if absurd results are to
documentary evidence is in the handwriting of the testatrix be avoided.
as well as the signatures appearing therein are the
signatures of the testatrix; that said witness, in answer to a Again, under Article 811, the resort to expert evidence is conditioned
question of his counsel admitted that the holographic will by the words "if the Court deem it necessary", which reveal that what
was handed to him by the testatrix, "apparently it must the law deems essential is that the Court should be convinced of the
have been written by her" (t.s.n., p. 11). However, on page will's authenticity. Where the prescribed number of witnesses is
16 on the same transcript of the stenographic notes, when produced and the court is convinced by their testimony that the will is
the same witness was asked by counsel if he was familiar genuine, it may consider it unnecessary to call for expert evidence.
with the penmanship and handwriting of the deceased On the other hand, if no competent witness is available, or none of
Fortunata Vda. de Yance, he answered positively in the those produced is convincing, the Court may still, and in fact it
affirmative and when he was asked again whether the should, resort to handwriting experts. The duty of the court, in fine, is
penmanship referred to in the previous answer as to exhaust all available lines of inquiry, for the state is as much
appearing in the holographic will (Exh. C) was hers interested as the proponent that the true intention of the testator be
(testatrix'), he answered, "I would definitely say it is hers"; carried into effect.
that it was also established in the proceedings that the
assessed value of the property of the deceased in Luskot, And because the law leaves it to the trial court to decide if experts
Quezon City, is in the amount of P7,000.00." are still needed, no unfavourable inference can be drawn from a
party's failure to offer expert evidence, until and unless the court
The opposition to the probate was on the ground that (1) the expresses dissatisfaction with the testimony of the lay witnesses. Our
execution of the will was procured by undue and improper pressure conclusion is that the rule of the first paragraph of Article 811 of the
and influence on the part of the petitioner and his wife, and (2) that Civil Code is merely directory and is not mandatory.
the testatrix did not seriously intend the instrument to be her last will,
and that the same was actually written either on the 5th or 6th day of Considering, however, that this is the first occasion in which this
August 1957 and not on November 20, 1956 as appears on the will. Court has been called upon to construe the import of said article, the
interest of justice would be better served, in our opinion, by giving the
The probate was denied on the ground that under Article 811 of the parties ample opportunity to adduce additional evidence, including
Civil Code, the proponent must present three witnesses who could expert witnesses, should the Court deem them necessary. In view of
declare that the will and the signature are in the writing of the the foregoing, the decision appealed from is set aside, and the
testatrix, the probate being contested; and because the lone witness records ordered remanded to the Court of origin, with instructions to
presented by the proponent "did not prove sufficiently that the body hold a new trial in conformity with this opinion. But evidence already
of the will was written in the handwriting of the testatrix." on record shall not be retaken. No costs.
The proponent appealed, urging: first, that he was not bound to Codoy vs. Calugay
produce more than one witness because the will's authenticity was
not questioned; and second, that Article 811 does not mandatorily On April 6, 1990, Evangeline Calugay, Josephine Salcedo and
require the production of three witnesses to identify the handwriting Eufemia Patigas, devisees and legatees of the holographic will of the
and signature of a holographic will, even if its authenticity should be deceased Matilde Seño Vda. de Ramonal, filed with the Regional
denied by the adverse party. Trial Court, Misamis Oriental, Branch 18, a petition 3 for probate of
the holographic will of the deceased, who died on January 16, 1990.
We agree with the appellant that since the authenticity of the will was
not contested, he was not required to produce more than one In the petition, respondents claimed that the deceased Matilde Seño
witness; but even if the genuineness of the holographic will were Vda. de Ramonal, was of sound and disposing mind when she
contested, we are of the opinion that Article 811 of our present Civil executed the will on August 30, 1978, that there was no fraud, undue
Code can not be interpreted as to require the compulsory influence, and duress employed in the person of the testator, and the
presentation of three witnesses to identify the handwriting of the will was written voluntarily. The assessed value of the decedent’s
testator, under penalty of having the probate denied. Since no property, including all real and personal property was about
witness may have been present at the execution of a holographic P400,000.00, at the time of her death. 4
will, none being required by law (Art. 810, new Civil Code), it
becomes obvious that the existence of witnesses possessing the On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal
requisite qualifications is a matter beyond the control of the filed an opposition 5 to the petition for probate, alleging that the
proponent. For it is not merely a question of finding and producing holographic will was a forgery and that the same is even illegible.
any three witnesses; they must be witnesses "who know the This gives an impression that a "third hand" of an interested party
handwriting and signature of the testator" and who can declare other than the "true hand" of Matilde Seño Vda. de Ramonal
(truthfully, of course, even if the law does not so express) "that the executed the holographic will.
will and the signature are in the handwriting of the testator". There
may be no available witness acquainted with the testator's hand; or Petitioners argued that the repeated dates incorporated or appearing
even if so familiarized, the witnesses may be unwilling to give a on the will after every disposition is out of the ordinary. If the
positive opinion. Compliance with the rule of paragraph 1 of Article deceased was the one who executed the will, and was not forced,
811 may thus become an impossibility. the dates and the signature should appear at the bottom after the
dispositions, as regularly done and not after every disposition. And
As can be seen, the law foresees the possibility that no qualified assuming that the holographic will is in the handwriting of the
witness may be found (or what amounts to the same thing, that no deceased, it was procured by undue and improper pressure and
competent witness may be willing to testify to the authenticity of the influence on the part of the beneficiaries, or through fraud and
will), and provides for resort to expert evidence to supply the trickery.
deficiency.
On December 12, 1990, respondents filed a notice of appeal, 8 and
It may be true that the rule of this article (requiring that three in support of their appeal, the respondents once again reiterated the
witnesses be presented if the will is contested and only one if no
47
- jann -
Wills & Succession/ Atty Uribe A visual examination of the holographic will convince us that the
strokes are different when compared with other documents written by
testimony of the following witnesses, namely: (1) Augusto Neri; (2) the testator. The signature of the testator in some of the disposition is
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; not readable. There were uneven strokes, retracing and erasures on
(5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay. the will.
According to the Court of Appeals, Evangeline Calugay, Matilde Comparing the signature in the holographic will dated August 30,
Ramonal Binanay and other witnesses definitely and in no uncertain 1978, 33 and the signatures in several documents such as the
terms testified that the handwriting and signature in the holographic application letter for pasture permit dated December 30, 1980, 34
will were those of the testator herself.Thus, upon the unrebutted and a letter dated June 16, 1978, 35 the strokes are different. In the
testimony of appellant Evangeline Calugay and witness Matilde letters, there are continuous flows of the strokes, evidencing that
Ramonal Binanay, the Court of Appeals sustained the authenticity of there is no hesitation in writing unlike that of the holographic will. We,
the holographic will and the handwriting and signature therein, and therefore, cannot be certain that the holographic will was in the
allowed the will to probate. handwriting by the deceased.
In this petition, the petitioners ask whether the provisions of Article IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The
811 of the Civil Code are permissive or mandatory. The article records are ordered remanded to the court of origin with instructions
provides, as a requirement for the probate of a contested holographic to allow petitioners to adduce evidence in support of their opposition
will, that at least three witnesses explicitly declare that the signature to the probate of the holographic will of the deceased Matilde Seño
in the will is the genuine signature of the testator. Vda. de Ramonal.
We are convinced, based on the language used, that Article 811 of E. Effect of Allowance of wills
the Civil Code is mandatory. The word "shall" connotes a mandatory
order. We have ruled that "shall" in a statute commonly denotes an The matter of due execution of the will and capacity of the testator
imperative obligation and is inconsistent with the idea of discretion acquire the character of res judicata and cannot again be brought
and that the presumption is that the word "shall," when used in a into question, all judicial questions in connection therewith being for
statute is mandatory." 11 once and forever closed.
Laws are enacted to achieve a goal intended and to guide against an The probate court does not look upon the intrinsic validity of the will.
evil or mischief that aims to prevent. In the case at bar, the goal to However, it was held that the trial court may pass upon the intrinsic
achieve is to give effect to the wishes of the deceased and the evil to validity even before its formal validity had been established.
be prevented is the possibility that unscrupulous individuals who for Otherwise, the probate of the will might become an idle ceremony if
their benefit will employ means to defeat the wishes of the testator. on its face it appears intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed
What Ms. Binanay saw were pre-prepared receipts and letters of the upon even before probated; the court should meet the issue.
deceased, which she either mailed or gave to her tenants. She did
not declare that she saw the deceased sign a document or write a Gallanosa vs. Arcangel
note. In her testimony it was also evident that Ms. Binanay kept the
fact about the will from petitioners, the legally adopted children of the The case involves the sixty-one parcels of land in Sorsogon left by
deceased. Such actions put in issue her motive of keeping the will a Florentino Hitosis, with an estimated value of P50,000, and claims for
secret to petitioners and revealing it only after the death of Matilde damages exceeding one million pesos.
Seño Vda. de Ramonal. So, the only reason that Evangeline can
give as to why she was familiar with the handwriting of the deceased On June 24, 1939 a petition for the probate of his will was filed in the
was because she lived with her since birth. She never declared that Court of First Instance of Sorsogon (Special Proceeding No. 3171).
she saw the deceased write a note or sign a document. The notice of hearing was duly published In that will. Florentino
bequeathed his one-half share in the conjugal estate to his second
From the testimonies of these witnesses, the Court of Appeals wife, Tecla Dollentas, and, should Tecla predecease him, as was the
allowed the will to probate and disregard the requirement of three case, his one-half share would be assigned to the spouses Pedro
witnesses in case of contested holographic will, citing the decision in Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's
Azaola vs. Singson, 31 ruling that the requirement is merely directory son by her first marriage, grew up under the care of Florentino: he
and not mandatory. In the case of Ajero vs. Court of Appeals, 32 we had treated Pedro as his foster child, and Pedro has rendered
said that "the object of the solemnities surrounding the execution of services to Florentino and Tecla. Florentino likewise bequeathed his
wills is to close the door against bad faith and fraud, to avoid separate properties consisting of three parcels of abaca land and
substitution of wills and testaments and to guaranty their truth and parcel of riceland to his protege (sasacuyang ataman) Adolfo
authenticity. Therefore, the laws on this subject should be interpreted Fortajada, a minor.
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 On October 24, 1941, the testamentary heirs, the Gallanosa spouses
of the law to restrain and curtail the exercise of the right to make a and Adolfo Fortajada, submitted a project of partition covering sixty-
will." one parcels of land located in various parts of Sorsogon, large cattle
and several pieces of personal property which were distributed in
However, we cannot eliminate the possibility of a false document accordance with Florentino's will. The heirs assumed the obligations
being adjudged as the will of the testator, which is why if the of the estate amounting to P7,129.27 in the portion of P2,376.42 for
holographic will is contested, that law requires three witnesses to Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The
declare that the will was in the handwriting of the deceased. The will project of partition was approved by Judge Doroteo Amador in his
was found not in the personal belongings of the deceased but with order of March 13, 1943, thus confirming the heirs' possession of
one of the respondents, who kept it even before the death of the their respective shares. The testator's legal heirs did not appeal from
deceased. In the testimony of Ms. Binanay, she revealed that the will the decree of probate and from the order of partition and distribution.
was in her possession as early as 1985, or five years before the
death of the deceased. On February 20, 1952, Leon Hitosis and the heirs of Florentino's
deceased brothers and sisters instituted an action in the Court of
There was no opportunity for an expert to compare the signature and First Instance of Sorsogon against Pedro Gallanosa for the recovery
the handwriting of the deceased with other documents signed and of the said sixty-one parcels of land. They alleged that they, by
executed by her during her lifetime. The only chance at comparison themselves or through their predecessors-in-interest, had been in
was during the cross-examination of Ms. Binanay when the lawyer of continuous possession of those lands en concepto de dueño and
petitioners asked Ms. Binanay to compare the documents which that Gallanosa entered those lands in 1951 and asserted ownership
contained the signature of the deceased with that of the holographic over the lands. They prayed that they be declared the owners of the
will and she is not a handwriting expert. Even the former lawyer of lands and that they be restored to the possession thereof. They also
the deceased expressed doubts as to the authenticity of the claimed damages (Civil Case No. 696).
signature in the holographic will.
48
- jann -
Wills & Succession/ Atty Uribe court to the egregious error of plaintiffs' counsel in arguing that article
1410 applies to wills.
The plaintiffs did not appeal from that order of dismissal which should
have set the matter at rest. But the same plaintiffs or oppositors to Roberts vs. Leonidas
the probate of the will, and their heirs, with a persistence befitting a
more meritorious case, filed on September 21, 1967, or fifteen years The question in this case is whether a petition for allowance of wills
after the dismissal of Civil Case No. 696 and twenty-eight years after and to annul a partition, approved in an intestate proceeding by
the probate of the will, another action in the same court against the Branch 20 of the Manila Court of First Instance, can be entertained
Gallanosa spouses and Adolfo Fortajada for the "annulment" of the by its Branch 38 (after a probate in the Utah district court).
will of Florentino Hitosis and for the recovery of the same sixty-one
parcels of land. They prayed for the appointment of a receiver. Antecedents. — Edward M. Grimm, an American resident of Manila,
died at 78 in the Makati Medical Center on November 27, 1977. He
The petitioners or the defendants below contend in this certiorari was survived by his second wife, Maxine Tate Grimm, and their two
case that the lower court has no jurisdiction to set aside the 1939 children, named Edward Miller Grimm II (Pete) and Linda Grimm,
decree of probate and the 1952 order of dismissal in Civil Case No. and by Juanita Grimm Morris and Ethel Grimm Roberts (McFadden),
696 and that it acted with grave abuse of discretion in not dismissing his two children by a first marriage which ended in divorce (Sub-
private respondents' 1967 complaint. Annexes A and B, pp. 36-47, Rollo).
The issue is whether, under the facts set forth above, the private He executed on January 23, 1959 two wills in San Francisco,
respondents have a cause of action for the "annulment" of the will of California. One will disposed of his Philippine estate which he
Florentino Hitosis and for the recovery of the sixty-one parcels of described as conjugal property of himself and his second wife. The
land adjudicated under that will to the petitioners. We hold that the second will disposed of his estate outside the Philippines.
lower court committed a grave abuse of discretion in reconsideration
its order of dismissal and in ignoring the 1939 testamentary case and In both wills, the second wife and two children were favored. The two
the 1952 Civil Case No. 696 which is the same as the instant 1967 children of the first marriage were given their legitimes in the will
case. disposing of the estate situated in this country. In the will dealing with
his property outside this country, the testator said: "I purposely have
What the plaintiffs seek is the "annulment" of a last will and made no provision in this will for my daughter, Juanita Grimm Morris,
testament duly probated in 1939 by the lower court itself. The or my daughter, Elsa Grimm McFadden (Ethel Grimm Roberts),
proceeding is coupled with an action to recover the lands adjudicated because I have provided for each of them in a separate will disposing
to the defendants by the same court in 1943 by virtue of the probated of my Philippine property." (First clause, pp. 43-47, Rollo).
will, which action is a resuscitation of the complaint of the same
parties that the same court dismissed in 1952. It is evident from the The two wills and a codicil were presented for probate by Maxine
allegations of the complaint and from defendants' motion to dismiss Tate Grimm and E. La Var Tate on March 7, 1978 in Probate No.
that plaintiffs' 1967 action is barred by res judicata a double-barrelled 3720 of the Third Judicial District Court of Tooele County, Utah.
defense, and by prescription, acquisitive and extinctive, or by what Juanita Grimm Morris of Cupertino, California and Mrs. Roberts of 15
are known in the jus civile and the jus gentium as usucapio, longi C. Benitez Street, Horseshoe Village, Quezon City were notified of
temporis possesio and praescriptio (See Ramos vs. Ramos, L- the probate proceeding
19872, December 3, 1974, 61 SCRA 284). Two weeks later, or on April 25, 1978, Maxine and her two children
Linda and Pete, as the first parties, and Ethel, Juanita Grimm Morris
We say that the defense of res judicata, as a ground for the dismissal and their mother Juanita Kegley Grimm, as the second parties, with
of plaintiffs' 1967 complaint, is a two-pronged defense because (1) knowledge of the intestate proceeding in Manila, entered into a
the 1939 and 1943 decrees of probate and distribution in Special compromise agreement in Utah regarding the estate. It was signed
Proceeding No. 3171 and (2) the 1952 order of dismissal in Civil by David E. Salisbury and Donald B. Holbrook, as lawyers of the
Case No. 696 of the lower court constitute bars by former judgment parties, by Pete and Linda and the attorney-in-fact of Maxine and by
the attorney-in-fact of Ethel, Juanita Grimm Morris and Juanita
The 1939 decree of probate is conclusive as to the due execution or Kegley Grimm.
formal validity of the will. That means that the testator was of sound
and disposing mind at the time when he executed the will and was In that agreement, it was stipulated that Maxine, Pete and Ethel
not acting under duress, menace, fraud, or undue influence; that the would be designated as personal representatives (administrators) of
will was signed by him in the presence of the required number of Grimm's Philippine estate (par. 2). It was also stipulated that
witnesses, and that the will is genuine and is not a forgery. Maxine's one-half conjugal share in the estate should be reserved for
Accordingly, these facts cannot again be questioned in a subsequent her and that would not be less than $1,500,000 plus the homes in
proceeding, not even in a criminal action for the forgery of the will. Utah and Santa Mesa, Manila (par. 4). The agreement indicated the
After the finality of the allowance of a will, the issue as to the computation of the "net distributable estate". It recognized that the
voluntariness of its execution cannot be raised anymore estate was liable to pay the fees of the Angara law firm
It is a fundamental concept in the organization of every jural system, Acting on the declaration of heirs and project of partition signed and
a principle of public policy, that, at the risk of occasional errors, filed by lawyers Limqueco and Macaraeg (not signed by Maxine and
judgments of courts should become final at some definite date fixed her two children), Judge Conrado M. Molina in his order of July 27,
by law. Interest rei publicae ut finis sit litum. The very object for which 1979 adjudicated to Maxine one-half (4/8) of the decedent's
the courts were constituted was to put an end to controversies. After Philippine estate and one-eighth (1/8) each to his four children or 12-
the period for seeking relief from a final order or judgment under Rule 1/2% (pp. 140-142, Record). No mention at all was made of the will
38 of the Rules of Court has expired, a final judgment or order can in that order.
be set aside only on the grounds of (a) lack of jurisdiction or lack of
due process of law or (b) that the judgment was obtained by means Petition to annul partition and testate proceeding No. 134559. — On
of extrinsic or collateral fraud. In the latter case, the period for September 8, 1980, Rogelio A. Vinluan of the Angara law firm, in
annulling the judgment is four years from the discovery of the fraud behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower
court a petition praying for the probate of Grimm's two wills (already
That ruling is a glaring error Article 1410 cannot possibly apply to last probated in Utah), that the 1979 partition approved by the intestate
wills and testaments. The trial court and plaintiffs' counsel relied court be set aside and the letters of administration revoked, that
upon the case of Dingle vs. Guillermo, 48 O.G. 4410, allegedly Maxine be appointed executrix and that Ethel and Juanita Morris be
decided by this Court, which cited the ruling in Tipton vs. Velasco, 6 ordered to account for the properties received by them and to return
Phil. 67, that mere lapse of time cannot give efficacy to void the same to Maxine (pp. 25-35, Rollo).
contracts, a ruling elevated to the category of a codal provision in
article 1410. The Dingle case was decided by the Court of Appeals. 49
Even the trial court did not take pains to verify the misrepresentation
of plaintiffs' counsel that the Dingle case was decided by this Court.
An elementary knowledge of civil law could have alerted the trial
- jann -
Wills & Succession/ Atty Uribe On January 6, 1976, the lower court denied the probate of the Will on
the ground that as the testator admitted in his Will to cohabiting with
Grimm's second wife and two children alleged that they were defraud the petitioner from December 1952 until his death on July 16, 1974,
due to the machinations of the Roberts spouses, that the 1978 Utah the Will's admission to probate will be an idle exercise because on
compromise agreement was illegal, that the intestate proceeding is the face of the Will, the invalidity of its intrinsic provisions is evident.
void because Grimm died testate and that the partition was contrary On June 2, 1982, the respondent court set aside the decision of the
to the decedent's wills. Court of First Instance of Rizal denying the probate of the Will. The
respondent court declared the Will to be valid except that the devise
Ethel filed a motion to dismiss the petition. Judge Leonidas denied it in favor of the petitioner is null and void pursuant to Article 739 in
for lack of merit in his order of October 27, 1980. Ethel then filed a relation with Article 1028 of the Civil Code of the Philippines.
petition for certiorari and prohibition in this Court, praying that the
testate proceeding be dismissed, or, alternatively that the two The main issue raised by the petitioner is whether or not the
proceedings be consolidated and heard in Branch 20 and that the respondent court acted in excess of its jurisdiction when after
matter of the annulment of the Utah compromise agreement be declaring the last Will and Testament of the deceased Martin Jugo
heard prior to the petition for probate (pp. 22-23, Rollo). validly drawn, it went on to pass upon the intrinsic validity of the
testamentary provision in favor of herein petitioner.
Ruling. — We hold that respondent judge did not commit any grave
abuse of discretion, amounting to lack of jurisdiction, in denying The petitioner submits that the validity of the testamentary provision
Ethel's motion to dismiss. in her favor cannot be passed upon and decided in the probate
proceedings but in some other proceedings because the only
A testate proceeding is proper in this case because Grimm died with purpose of the probate of a Will is to establish conclusively as
two wills and "no will shall pass either real or personal property against everyone that a Will was executed with the formalities
unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule required by law and that the testator has the mental capacity to
75, Rules of Court). The probate of the will is mandatory (Guevara execute the same. The petitioner further contends that even if the
vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Paño, L- provisions of paragraph 1 of Article 739 of the Civil Code of the
42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of Philippines were applicable, the declaration of its nullity could only be
a person who died testate should be settled in an intestate made by the proper court in a separate action brought by the legal
proceeding. Therefore, the intestate case should be consolidated wife for the specific purpose of obtaining a declaration of the nullity of
with the testate proceeding and the judge assigned to the testate the testamentary provision in the Will in favor of the person with
proceeding should continue hearing the two cases. whom the testator was allegedly guilty of adultery or concubinage.
Ethel may file within twenty days from notice of the finality of this We agree with the respondents. The respondent court acted within
judgment an opposition and answer to the petition unless she its jurisdiction when after declaring the Will to be validly drawn, it
considers her motion to dismiss and other pleadings sufficient for the went on to pass upon the intrinsic validity of the Will and declared the
purpose. Juanita G. Morris, who appeared in the intestate case, devise in favor of the petitioner null and void. The general rule is that
should be served with copies of orders, notices and other papers in in probate proceedings, the court's area of inquiry is limited to an
the testate case. WHEREFORE, the petition is dismissed. The examination and resolution of the extrinsic validity of the Will.
temporary restraining order is dissolved. No costs.
"Art IV. That since 1952, I have been living, as
Nepomuceno vs. CA man and wife, with one Sofia J. Nepomuceno,
whom I declare and avow to be entitled to may
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last love and affection, for all the things which she
Will and Testament duly signed by him at the end of the Will on page has done for me, now and in the past; that while
three and on the left margin of pages 1, 2 and 4 thereof in the Sofia J. Nepomuceno has with my full
presence of Celestina Alejandro, Myrna C. Cortez, and Leandro knowledge and consent, did comport and
Leaño, who in turn, affixed their signatures below the attestation represent myself as her own husband, in truth
clause and on the left margin of pages 1, 2 and 4 of the Will in the and in fact, as well as in the eyes of the law, I
presence of the testator and of each other and the Notary Public. could not bind her to me in the holy bonds of
The Will was acknowledged before the Notary Public Romeo matrimony because of my aforementioned
Escareal by the testator and his three attesting witnesses. previous marriage;"
In the said Will, the testator named and appointed herein petitioner The rule, however, is not inflexible and absolute. Given exceptional
Sofia J. Nepomuceno as his sole and only executor of his estate. It is circumstances, the probate court is not powerless to do what the
clearly stated in the Will that the testator was legally married to a situation constrains it to do and pass upon certain provisions of the
certain Rufina Gomez by whom he had two legitimate children, Will.
Oscar and Carmelita, but since 1952, he had been estranged from
his lawfully wedded wife and had been living with petitioner as In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the
husband and wife. In fact, on December 5, 1952, the testator Martin testator instituted the petitioner as universal heir and completely
Jugo and the petitioner herein, Sofia J. Nepomuceno were married in preterited her surviving forced heirs. A will of this nature, no matter
Victoria, Tarlac before the Justice of the Peace. The testator devised how valid it may appear extrinsically, would be null and void.
to his forced heirs, namely, his legal wife Rufina Gomez and his Separate or latter proceedings to determine the intrinsic validity of
children Oscar and Carmelita his entire estate and the free portion the testamentary provisions would be superfluous.
thereof to herein petitioner.
"We are of the opinion that in view of certain unusual provisions of
On August 21, 1974, the petitioner filed a petition for the probate of the will, which are of dubious legality, and because of the motion to
the last Will and Testament of the deceased Martin Jugo in the Court withdraw the petition for probate (which the lower court assumed to
of First Instance of Rizal, Branch XXXIV, Caloocan City and asked have been filed with the petitioner's authorization), the trial court
for the issuance to her of letters testamentary. On May 13, 1975, the acted correctly in passing upon the will's intrinsic validity even before
legal wife of the testator, Rufina Gomez and her children filed an its formal validity had been established. The probate of a will might
opposition alleging inter alia that the execution of the Will was become an idle ceremony if on its face it appears to be intrinsically
procured by undue and improper influence on the part of the void. Where practical considerations demand that the intrinsic validity
petitioner; that at the time of the execution of the Will, the testator of the will be passed upon, even before it is probated, the court
was already very sick and that petitioner having admitted her living in should meet the issue
concubinage with the testator, she is wanting in integrity and thus
letters testamentary should not be issued to her. 50
- jann -
The words you are searching are inside this book. To get more targeted content, please make full-text search by clicking here.
Succession_Outline_Notes_Cases2
Discover the best professional documents and content resources in AnyFlip Document Base.
Search