REMEDIOS NUGUID, petitioner and appellant, vs.

FELIX NUGUID and PAZ SALONGA

NUGUID, oppositors and appellees.
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single,
without descendants, legitimate or illegitimate. Surviving her were her legitimate
parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters,
namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed
Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of
Rizal a holographic will allegedly executed by Rosario Nuguid on November 17,
1951, some 11 years before her demise. Petitioner prayed that said will be admitted
to probate and that letters of administration with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate
father and mother of the deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors who are
compulsory heirs of the deceased in the direct ascending line were illegally
preterited and that in consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and
objection thereto, oppositors moved to dismiss on the ground of absolute
preterition.

On September 6, 1963, petitioner registered her opposition to the motion to

dismiss.1wph1.t

The court's order of November 8, 1963, held that "the will in question is a complete
nullity and will perforce create intestacy of the estate of the deceased Rosario
Nuguid" and dismissed the petition without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court
on appeal.

1. Right at the outset, a procedural aspect has engaged our attention. The case is
for the probate of a will. The court's area of inquiry is limited to an examination
of, and resolution on, the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the requisites or
solemnities by law prescribed, are the questions solely to be presented, and to be
acted upon, by the court. Said court at this stage of the proceedings is not called
upon to rule on the intrinsic validity or efficacy of the provisions of the will, the
legality of any devise or legacy therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is
the intrinsic validity of the will. Normally, this comes only after the court has
declared that the will has been duly authenticated.2 But petitioner and oppositors,
in the court below and here on appeal, travelled on the issue of law, to wit: Is the
will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before us on the same issue
of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense,
plus added anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the provisions of the
will in question.3 After all, there exists a justiciable controversy crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion

below that the will is a complete nullity. This exacts from us a study of the disputed
will and the applicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having
amassed a certain amount of property, do hereby give, devise, and bequeath all of
the property which I may have when I die to my beloved sister Remedios Nuguid,

age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my
name this seventh day of November, nineteen hundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

The statute we are called upon to apply in Article 854 of the Civil Code which, in
part, provides:

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

Except for inconsequential variation in terms, the foregoing is a reproduction of

Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator,
shall void the institution of heir; but the legacies and betterments4 shall be valid, in
so far as they are not inofficious. ...

A comprehensive understanding of the term preterition employed in the law

becomes a necessity. On this point Manresa comments:

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra

siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se
le deshereda expresamente ni se le asigna parte alguna de los bienes, resultando
privado de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento
omita el testador a uno cualquiera de aquellos a quienes por su muerte corresponda
la herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la

omision sea completa; que el heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of
the problem before us, to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343,
204 Pa. 484.6

The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50
38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq.
132.7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to

nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d.
771, 774.8

And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct
ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid.
And, the will completely omits both of them: They thus received nothing by the
testament; tacitly, they were deprived of their legitime; neither were they expressly
disinherited. This is a clear case of preterition. Such preterition in the words of
Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a este
ordenamiento referring to the mandate of Article 814, now 854 of the Civil Code.9
The one-sentence will here institutes petitioner as the sole, universal heir nothing
more. No specific legacies or bequests are therein provided for. It is in this posture
that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate.
Says Manresa:

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en

todo o en parte? No se aade limitacion alguna, como en el articulo 851, en el que
se expresa que se anulara la institucion de heredero en cuanto prejudique a la
legitima del deseheredado Debe, pues, entenderse que la anulacion es completa o
total, y que este articulo como especial en el caso que le motiva rige con
preferencia al 817. 10

The same view is expressed by Sanchez Roman:

La consecuencia de la anulacion o nulidad de la institucion de heredero por

pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la
sucesion intestada total o parcial. Sera total, cuando el testador que comete la
pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia
en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige
la generalidad del precepto legal del art. 814, al determinar, como efecto de la
pretericion, el de que "anulara la institucion de heredero." ... 11

Really, as we analyze the word annul employed in the statute, there is no escaping
the conclusion that the universal institution of petitioner to the entire inheritance
results in totally abrogating the will. Because, the nullification of such institution of
universal heir without any other testamentary disposition in the will amounts
to a declaration that nothing at all was written. Carefully worded and in clear terms,
Article 854 offers no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On this point, Sanchez
Roman cites the "Memoria annual del Tribunal Supreme, correspondiente a 1908",
which in our opinion expresses the rule of interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la

institucion de heredero, no consiente interpretacion alguna favorable a la persona
instituida en el sentido antes expuesto aun cuando parezca, y en algun caso
pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho
sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo
tanto procederse sobre tal base o supuesto, y consiguientemente, en un testamento
donde falte la institucion, es obligado llamar a los herederos forzosos en todo caso,
como habria que llamar a los de otra clase, cuando el testador no hubiese
distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene

declarado la jurisprudencia, con repeticion, que no basta que sea conocida la

voluntad de quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz, por lo que
constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como
legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se
acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto
razon para modificar la ley, pero no autoriza a una interpretacion contraria a sus
terminos y a los principios que informan la testamentifaccion, pues no porque
parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para
convereste juicio en regla de interpretacion, desvirtuando y anulando por este
procedimiento lo que el legislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so
expressly given as such in a will. Nothing in Article 854 suggests that the mere
institution of a universal heir in a will void because of preterition would give
the heir so instituted a share in the inheritance. As to him, the will is inexistent.
There must be, in addition to such institution, a testamentary disposition granting
him bequests or legacies apart and separate from the nullified institution of heir.
Sanchez Roman, speaking of the two component parts of Article 814, now 854,
states that preterition annuls the institution of the heir "totalmente por la
pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ...
todas aquellas otras disposiciones que no se refieren a la institucion de
heredero ... . 13 As Manresa puts it, annulment throws open to intestate succession
the entire inheritance including "la porcion libre (que) no hubiese dispuesto en
virtud de legado, mejora o donacion. 14

As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance

rather than one of preterition". 15 From this, petitioner draws the conclusion that
Article 854 "does not apply to the case at bar". This argument fails to appreciate the
distinction between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited." 16
Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir
of his share in the legitime for a cause authorized by law. " 17 In Manresa's own
words: "La privacion expresa de la legitima constituye la desheredacion. La
privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman
emphasizes the distinction by stating that disinheritance "es siempre voluntaria";
preterition, upon the other hand, is presumed to be "involuntaria". 19 Express as
disinheritance should be, the same must be supported by a legal cause specified in
the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different
from those of disinheritance. Preterition under Article 854 of the Civil Code, we
repeat, "shall annul the institution of heir". This annulment is in toto, unless in the
will there are, in addition, testamentary dispositions in the form of devises or
legacies. In ineffective disinheritance under Article 918 of the same Code, such
disinheritance shall also "annul the institution of heirs", put only "insofar as it may
prejudice the person disinherited", which last phrase was omitted in the case of
preterition. 21 Better stated yet, in disinheritance the nullity is limited to that
portion of the estate of which the disinherited heirs have been illegally deprived.
Manresa's expressive language, in commenting on the rights of the preterited heirs
in the case of preterition on the one hand and legal disinheritance on the other,
runs thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les
corresponde un tercio o dos tercios, 22 el caso. 23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled
to receive their legitimes, but that the institution of heir "is not invalidated,"
although the inheritance of the heir so instituted is reduced to the extent of said
legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the
Neri case heretofore cited, viz:

But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made to fall into the concept of
legacies and betterments reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of the institution, would. be
absolutely meaningless and will never have any application at all. And the
remaining provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they would be absorbed by
Article 817. Thus, instead of construing, we would be destroying integral provisions
of the Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general from a
special provision. With reference to article 814, which is the only provision material
to the disposition of this case, it must be observed that the institution of heirs is
therein dealt with as a thing separate and distinct from legacies or betterments.
And they are separate and distinct not only because they are distinctly and
separately treated in said article but because they are in themselves different.
Institution of heirs is a bequest by universal title of property that is undetermined.
Legacy refers to specific property bequeathed by a particular or special title. ... But
again an institution of heirs cannot be taken as a legacy. 25

The disputed order, we observe, declares the will in question "a complete nullity".
Article 854 of the Civil Code in turn merely nullifies "the institution of heir".
Considering, however, that the will before us solely provides for the institution of
petitioner as universal heir, and nothing more, the result is the same. The entire will
is null.

Upon the view we take of this case, the order of November 8, 1963 under review is
hereby affirmed. No costs allowed. So ordered.

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY,
JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch
VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.

Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance
of Davao dated February 28, 1974, declaring illegal and void the will of his mother,
Leodegaria Julian, converting the testate proceeding into an intestate proceeding
and ordering the issuance of the corresponding notice to creditors (Special Case No.
1808). The antecedents of the appeal are as follows:

Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in
Davao City at the age of sixty-seven. She was survived by her husband, Felix
Balanay, Sr., and by their six legitimate children named Felix Balanay, Jr., Avelina B.
Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B.
Pabaonon.

Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the
probate of his mother's notarial will dated September 5, 1970 which is written in
English. In that will Leodegaria Julian declared (a) that she was the owner of the
"southern half of nine conjugal lots (par. II); (b) that she was the absolute owner of
two parcels of land which she inherited from her father (par. III), and (c) that it was
her desire that her properties should not be divided among her heirs during her
husband's lifetime and that their legitimes should be satisfied out of the fruits of her
properties (Par. IV).

Then, in paragraph V of the will she stated that after her husband's death (he was
eighty-two years old in 1973) her paraphernal lands and all the conjugal lands
(which she described as "my properties") should be divided and distributed in the
manner set forth in that part of her will. She devised and partitioned the conjugal
lands as if they were all owned by her. She disposed of in the will her husband's one
half share of the conjugal assets. *

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the
grounds of lack of testamentary capacity, undue influence, preterition of the
husband and alleged improper partition of the conjugal estate. The oppositors
claimed that Felix Balanay, Jr. should collate certain properties which he had
received from the testatrix.

Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix
Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate
of the will and affirmed that he was interested in its probate. On the same date Felix

Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and

Renunciation of Hereditary Rights" wherein he manifested that out of respect for his
wife's will he "waived and renounced' his hereditary rights in her estate in favor of
their six children. In that same instrument he confirmed the agreement, which he
and his wife had perfected before her death, that their conjugal properties would be
partitioned in the manner indicated in her will.

Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were void. The lower court in its order of June
18, 1973 "denied" the opposition and reset for hearing the probate of the will. It
gave effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated
August 28, 1973 it appointed its branch clerk of court as special administrator of the
decedent's estate.

Mrs. Antonio moved for the reconsideration of the lower court's order of June 18,
1973 on the grounds (a) that the testatrix illegally claimed that she was the owner
of the southern half of the conjugal lots and (b) that she could not partition the
conjugal estate by allocating portions of the nine lots to her children. Felix Balanay,
Jr., through his counsel, Hermenegildo Cabreros, opposed that motion. The lower
court denied it in its order of October 15, 1973.

In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr.,
claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was
Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court to
withdraw probate of alleged will of Leodegaria Julian and requesting authority to
proceed by intestate estate proceeding." In that motion Montaa claimed to be the
lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo,
Carolina B. Manguiob and Emilia B. Pabaonon.

Montaa in his motion assailed the provision of the will which partitioned the
conjugal assets or allegedly effected a compromise of future legitimes. He prayed
that the probate of the will be withdrawn and that the proceeding be converted into
an intestate proceeding. In another motion of the same date he asked that the
corresponding notice to creditors be issued.

Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their
comments dated October 15, 1973 manifested their conformity with the motion for

the issuance of a notice to creditors. They prayed that the will be declared void for
being contrary to law and that an intestacy be declared.

The lower court, acting on the motions of Atty. Montaa, assumed that the issuance
of a notice to creditors was in order since the parties had agreed on that point. It
adopted the view of Attys. Montaa and Guyo that the will was void. So, in its order
of February 28, 1974 it dismissed the petition for the probate, converted the testate
proceeding into an intestate proceeding, ordered the issuance of a notice to
creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. The
lower court did not abrogate its prior orders of June 18 and October 15, 1973. The
notice to creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in
the Davao Star in spite of petitioner's motion of April 17, 1974 that its publication
be held in abeyance.

Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion
dated April 15, 1974, asked for the reconsideration of the lower court's order of
February 28, 1974 on the ground that Atty. Montaa had no authority to withdraw
the petition for the allowance of the will. Attached to the motion was a copy of a
letter dated March 27, 1974 addressed to Atty. Montaa and signed by Felix
Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon,
wherein they terminated Montaa's services and informed him that his withdrawal
of the petition for the probate of the will was without their consent and was contrary
to their repeated reminder to him that their mother's will was "very sacred" to them.

Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration.
The lower court denied the motion in its order of June 29, 1974. It clarified that it
declared the will void on the basis of its own independent assessment of its
provisions and not because of Atty. Montaa's arguments.

The basic issue is whether the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal validity, and in declaring
it void.

We are of the opinion that in view of certain unusual provisions of the will, which are
of dubious legality, and because of the motion to withdraw the petition for probate
(which the lower court assumed to have been filed with the petitioner's
authorization), the trial court acted correctly in passing upon the will's intrinsic

validity even before its formal validity had been established. The probate of a will
might become an idle ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue (Nuguid
vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30,
1965, 13 SCRA 693).1wph1.t

But the probate court erred in declaring, in its order of February 28, 1974 that the
will was void and in converting the testate proceeding into an intestate proceeding
notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the
surviving husband's conformity to the will and to his renunciation of his hereditary
rights which presumably included his one-half share of the conjugal estate.

The rule is that "the invalidity of one of several dispositions contained in a will does
not result in the invalidity of the other dispositions, unless it is to be presumed that
the testator would not have made such other dispositions if the first invalid
disposition had not been made" (Art. 792, Civil Code). "Where some of the
provisions of a will are valid and others invalid, the valid parts will be upheld if they
can be separated from the invalid without defeating the intention of the testator or
interfering with the general testamentary scheme, or doing injustice to the
beneficiaries" (95 C.J.S. 873).

The statement of the testatrix that she owned the "southern half of the conjugal
lands is contrary to law because, although she was a coowner thereof, her share
was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty
and Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire
will. It may be disregarded.

The provision of the will that the properties of the testatrix should not be divided
among her heirs during her husband's lifetime but should be kept intact and that
the legitimes should be paid in cash is contrary to article 1080 of the Civil Code
which reads:

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

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

The testatrix in her will made a partition of the entire conjugal estate among her six
children (her husband had renounced his hereditary rights and his one-half conjugal
share). She did not assign the whole estate to one or more children as envisaged in
article 1080. Hence, she had no right to require that the legitimes be paid in cash.
On the other hand, her estate may remain undivided only for a period of twenty
years. So, the provision that the estate should not be divided during her husband's
lifetime would at most be effective only for twenty years from the date of her death
unless there are compelling reasons for terminating the coownership (Art. 1083,
Civil Code).

Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share
of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said
renunciation partakes of a donation of his hereditary rights and his one-half share in
the conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations
prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should
be adjudicated to the widower for his support and maintenance. Or at least his
legitime should be respected.

Subject to the foregoing observations and the rules on collation, the will is
intrinsically valid and the partition therein may be given effect if it does not
prejudice the creditors and impair the legitimes. The distribution and partition would
become effective upon the death of Felix Balanay, Sr. In the meantime, the net
income should be equitably divided among the children and the surviving spouse.

It should be stressed that by reason of the surviving husband's conformity to his

wife's will and his renunciation of his hereditary rights, his one-half conjugal share
became a part of his deceased wife's estate. His conformity had the effect of
validating the partition made in paragraph V of the will without prejudice, of course,
to the rights of the creditors and the legitimes of the compulsory heirs.

Article 793 of the Civil Code provides that "property acquired after the making of a
will shall only pass thereby, as if the testator had it at the time of making the will,
should it expressly appear by the will that such was his intention". Under article 930
of the Civil Code "the legacy or devise of a thing belonging to another person is
void, if the testator erroneously believed that the thing pertained to him. But if the
thing bequeathed, though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall take effect."

In the instant case there is no doubt that the testatrix and her husband intended to
partition the conjugal estate in the manner set forth in paragraph V of her will. It is
true that she could dispose of by will only her half of the conjugal estate (Art. 170,
Civil Code) but since the husband, after the dissolution of the conjugal partnership,
had assented to her testamentary partition of the conjugal estate, such partition
has become valid, assuming that the will may be probated.

The instant case is different from the Nuguid case, supra, where the testatrix
instituted as heir her sister and preterited her parents. Her will was intrinsically void
because it preterited her compulsory heirs in the direct line. Article 854 of the Civil
Code provides that "the preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the execution of the
will or born after the death of the testator, shall annul the institution of heir; but the
devises and legacies, shall be valid insofar as they are not inofficious." Since the
preterition of the parents annulled the institution of the sister of the testatrix and
there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil
Code).1wph1.t

In the instant case, the preterited heir was the surviving spouse. His preterition did
not produce intestacy. Moreover, he signified his conformity to his wife's will and
renounced his hereditary rights. .

It results that the lower court erred in not proceeding with the probate of the will as
contemplated in its uncancelled order of June 18, 1973. Save in an extreme case
where the will on its face is intrinsically void, it is the probate court's duty to pass
first upon the formal validity of the will. Generally, the probate of the will is
mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249;
Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).

As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament
is in itself prima facie proof that the supposed testator has willed that his estate
should be distributed in the manner therein provided, and it is incumbent upon the
state that, if legally tenable, such desire be given effect independent of the attitude
of the parties affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200,
August 18, 1972, 46 SCRA 538, 565).

To give effect to the intention and wishes of the testatrix is the first and principal
law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33
SCRA 554, 561). Testacy is preferable to intestacy. An interpretation that will render
a testamentary disposition operative takes precedence over a construction that will
nullify a provision of the will (Arts. 788 and 791, Civil Code).

Testacy is favored. Doubts are resolved in favor of testacy especially where the will
evinces an intention on the part of the testator to dispose of practically his whole
estate. So compelling is the principle that intestacy should be avoided and that the
wishes of the testator should prevail that sometimes the language of the will can be
varied for the purpose of giving it effect (Austria vs. Reyes, L-23079, February 27,
1970, 31 SCRA 754, 762).

As far as is legally possible, the expressed desire of the testator must be followed
and the dispositions of the properties in his will should be upheld (Estorque vs.
Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).

The law has a tender regard for the wishes of the testator as expressed in his will
because any disposition therein is better than that which the law can make (Castro
vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).

Two other errors of the lower court may be noticed. It erred in issuing a notice to
creditors although no executor or regular administrator has been appointed. The
record reveals that it appointed a special administrator. A notice to creditors is not
in order if only a special administrator has been appointed. Section 1, Rule 86 of the
Rules of Court, in providing that "immediately after granting letters of testamentary
or of administration, the court shall issue a notice requiring all persons having
money claims against the decedent to file them in the office of the clerk of said
court" clearly contemplates the appointment of an executor or regular administrator
and not that of a special administrator.

It is the executor or regular administrator who is supposed to oppose the claims

against the estate and to pay such claims when duly allowed (See. 10, Rule 86 and
sec. 1, Rule 88, Rules of Court).

We also take this occasion to point out that the probate court's appointment of its
branch clerk of court as special administrator (p. 30, Rollo) is not a salutary practice
because it might engender the suspicion that the probate Judge and his clerk of
court are in cahoots in milking the decedent's estate. Should the branch clerk of
court commit any abuse or devastavit in the course of his administration, the
probate Judge might find it difficult to hold him to a strict accountability. A court
employee should devote his official time to his official duties and should not have as
a sideline the administration of a decedent's estate.

WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set
aside and its order of June 18, 1973, setting for hearing the petition for probate, is
affirmed. The lower court is directed to conduct further proceedings in Special Case
No. 1808 in consonance with this opinion. Costs, against the private respondents.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

Footnotes

The pertinent provisions of the will are as follows:

"II.
That I am the absolute owner of the southern half of the following conjugal
properties which I acquired during my married life with my husband, Felix Balanay,
Sr., namely: (Here follows an enumeration of nine lots).1wph1.t

"III.
I am the absolute owner of the following paraphernal properties which I
inherited from my deceased father, Cecilio Julian, namely: (Here follows a
description of two lots).

"IV.
It is my desire and I direct that in the interest of my family, my properties
shall not be divided among my heirs during the lifetime of my husband, Felix
Balanay, Sr. but should be kept intact. The respective legitimes of my husband and
my children should be paid in cash out of the proceeds of sale of the produce and
rents derived from said properties.

"V.
After the death of my husband, Felix Balanay, Sr., my properties shall be
divided and distributed in the manner as follows:" (Here follows a partition of the
nine conjugal lots and the two paraphernal lots. The testatrix divided among her six
children not only her two paraphernal lots, one of which she devised to Emilia
Pabaonon and the other lot to Felix Balanay, Jr., but also the nine conjugal lots. She
did not restrict the partition to her one-half conjugal share but included her
husband's one-half share.).
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court of

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

The dispositive portion of the questioned decision reads as follows:

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

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

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

THIRD:
All my shares that I may receive from our properties. house, lands and
money which I earned jointly with my wife Rosa Diongson shall all be given by me to
my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at
357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain predeceased me, all the money properties, lands, houses there in Bantayan and here in
Cebu City which constitute my share shall be given to me to his children, namely:
Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all
surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who

are claiming to be heirs, with Constantino as the petitioner in Special Proceedings
No. 591 ACEB

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

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

Respondent Intermediate Appellate Court granted private respondents' petition and

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

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

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

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

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

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

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

(D)

DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

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

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

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

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

Article 854 of the Civil Code provides:

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

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

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

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

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

Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as
already stated above, be respected.

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

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

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

Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals,
139 SCRA 206 [1985]).

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

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

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

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

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

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

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

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

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by
mistake or inadvertence.

To my mind, an important distinction has to be made as to whether the omission of

a forced heir in the will of a testator is by mistake or inadvertence, or voluntary or
intentional. If by mistake or inadvertence, there is true preterirton and total
intestacy results. The reason for this is the "inability to determine how the testator
would have distributed his estate if none of the heirs had been omitted or forgotten
(An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111
Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum
supplied).

On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the institution
of heir is not wholly void but only insofar as it prejudices the legitime of the person
disinherited. Stated otherwise. the nullity is partial unlike in true preterition where
the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the

testator had known of the existence of the compulsory heir at the time of the
execution of the will, he would have instituted such heir. On the other hand, if the
testator attempts to disinherit a compulsory heir, the presumption of the law is that
he wants such heir to receive as little as possible from his estate. (III Tolentino, Civil
Code, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the
omission of the adopted daughter, hence, my concurrence in the result that total
intestacy ensued.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by
mistake or inadvertence.

To my mind, an important distinction has to be made as to whether the omission of

a forced heir in the will of a testator is by mistake or inadvertence, or voluntary or
intentional. If by mistake or inadvertence, there is true preterirton and total
intestacy results. The reason for this is the "inability to determine how the testator
would have distributed his estate if none of the heirs had been omitted or forgotten
(An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111
Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum
supplied).

On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the institution
of heir is not wholly void but only insofar as it prejudices the legitime of the person
disinherited. Stated otherwise. the nullity is partial unlike in true preterition where
the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the

testator had known of the existence of the compulsory heir at the time of the
execution of the will, he would have instituted such heir. On the other hand, if the
testator attempts to disinherit a compulsory heir, the presumption of the law is that
he wants such heir to receive as little as possible from his estate. (III Tolentino, Civil
Code, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the
omission of the adopted daughter, hence, my concurrence in the result that total
intestacy ensued.

RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners,

vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of First
Instance of Rizal and BERNARDO S. ASENETA, respondents.

MELENCIO-HERRERA, J.:

A Petition to Review the Decision of April 28, 1981 of respondent Appellate Court in
CA-G.R. No. 12032-R entitled "Rafael E. Maninang and Soledad L. Maninang vs. Hon.
Ricardo Pronove, Judge of the Court of First Instance of Rizal, Pasig, Branch XI, and
Bernardo S. Aseneta".

Pertinent to the controversy are the following antecedental facts:

On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital
at age 81. She left a holographic will, the pertinent portions of which are quoted
hereunder:

xxx

xxx

xxx

It is my will that all my real properties located in Manila, Makati, Quezon City, Albay
and Legaspi City and all my personal properties shall be inherited upon my death by
Dra. Soledad L. Maninang with whose family I have lived continuously for around the
last 30 years now. Dra. Maninang and her husband Pamping have been kind to
me. ... I have found peace and happiness with them even during the time when my
sisters were still alive and especially now when I am now being troubled by my
nephew Bernardo and niece Salvacion. I am not incompetent as Nonoy would like
me to appear. I know what is right and wrong. I can decide for myself. I do not
consider Nonoy as my adopted son. He has made me do things against my will.

xxx

xxx

xxx

On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of the Will
of the decedent with the Court of First Instance-Branch IV, Quezon City (Sp. Proc.
No. Q-23304, hereinafter referred to as the Testate Case).

On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted son,
claims to be the sole heir of decedent Clemencia Aseneta, instituted intestate
proceedings with the Court of First Instance-Branch XI, Pasig, Rizal (Sp. Proc. No.
8569, called hereinafter the Intestate Case" for brevity).

On December 23, 1977, the Testate and Intestate Cases were ordered consolidated
before Branch XI, presided by respondent Judge.

Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the ground
that the holographic will was null and void because he, as the only compulsory heir,
was preterited and, therefore, intestacy should ensue. In support of said Motion to
Dismiss, respondent Bernardo cited the cases of Neri vs. Akutin (72 Phil. 322);
Nuguid vs. Nuguid (17 SCRA 449), and Ramos vs. Baldovino (2 CA Rep. 2nd, 878). 1

In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it is still
the rule that in a case for probate of a Will, the Court's area of inquiry is limited to
an examination of and resolution on the extrinsic validity of the will; and that
respondent Bernardo was effectively disinherited by the decedent. 2

On September 8, 1980, the lower Court ordered the dismissal of the Testate Case in
this wise:

For reasons stated in the motion to dismiss filed by petitioner Bernardo S. Aseneta
which the Court finds meritorious, the petition for probate of will filed by Soledad L.
Maninang and which was docketed as Sp. Proc. No. Q-23304 is DISMISSED, without
pronouncement as to costs.

On December 19, 1980, the lower Court denied reconsideration for lack of merit and
in the same Order appointed Bernardo as the administrator of the intestate estate
of the deceased Clemencia Aseneta "considering that he is a forced heir of said
deceased while oppositor Soledad Maninang is not, and considering further that
Bernardo Aseneta has not been shown to be unfit to perform the duties of the trust.
"

Petitioners Maninang resorted to a certiorari Petition before respondent Court of

Appeals alleging that the lower Court exceeded its jurisdiction in issuing the Orders
of dismissal of the Testate Case (September 8, 1980) and denial of reconsideration
(December 19, 1980).

On April 28, 1981, respondent Court 3 denied certiorari and ruled that the trial
Judge's Order of dismissal was final in nature as it finally disposed of the Testate
Case and, therefore, appeal was the proper remedy, which petitioners failed to avail
of. Continuing, it said that even granting that the lower Court committed errors in
issuing the questioned Orders, those are errors of judgment reviewable only by
appeal and not by Certiorari. 'Thus, this Petition before us.

We find that the Court a quo a quo acted in excess of its jurisdiction when it
dismissed the Testate Case. Generally, the probate of a Will is mandatory.

No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. 4

The law enjoins the probate of the Will and public policy requires it, because unless
the Will is probated and notice thereof given to the whole world, the right of a
person to dispose of his property by Will may be rendered nugatory. 5

Normally, the probate of a Will does not look into its intrinsic validity.

... The authentication of a will decides no other question than such as touch upon
the capacity of the testator and the compliance with those requisites or solemnities
which the law prescribes for the validity of wills. It does not determine nor even by
implication prejudge the validity or efficiency (sic) of the provisions, these may be
impugned as being vicious or null, notwithstanding its authentication. The
que0stions relating to these points remain entirely unaffected, and may be raised
even after the will has been authenticated .... 6

Opposition to the intrinsic validity or legality of the provisions of the will cannot be
entertained in Probate proceeding because its only purpose is merely to determine
if the will has been executed in accordance with the requirements of the law. 7

Respondent Bernardo, however, relies on the pronouncement in Nuguid vs. Nuguid

8, reading:

In a proceeding for the probate of a will, the Court's area of inquiry is limited to an
examination of, and resolution on, the extrinsic validity of the will, the due
execution thereof, the testatrix's testamentary capacity and the compliance with
the requisites or solemnities prescribed by law. The intrinsic validity of the will
normally comes only after the court has declared that the will has been duly
authenticated. However, where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the Court should
meet that issue. (Emphasis supplied)

Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:

The trial court acted correctly in passing upon the will's intrinsic validity even before
its formal validity had been established. The probate of a will might become an Idle

ceremony if on its face it appears to be intrinsically void. Where practical

considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue.

The Nuguid and the Balanay cases provide the exception rather than the rule. The
intrinsic validity of the Wills in those cases was passed upon even before probate
because "practical considerations" so demanded. Moreover, for the parties in the
Nuguid case, the "meat of the controversy" was the intrinsic validity of the Will; in
fact, the parties in that case "shunted aside the question of whether or not the Will
should be allowed probate." Not so in the case before us now where the probate of
the Will is insisted on by petitioners and a resolution on the extrinsic validity of the
Will demanded.

Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid
as it completely preterited the parents of the testator. In the instant case, a crucial
issue that calls for resolution is whether under the terms of the decedent's Will,
private respondent had been preterited or disinherited, and if the latter, whether it
was a valid disinheritance. Preterition and disinheritance are two diverse concepts.

... Preterition "consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited." (Neri
vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heirs of his share in the legitimate for a cause authorized
by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law",
1956 ed., Vol. III, p. 8, citing cases) Disinheritance is always "voluntary", preterition
upon the other hand, is presumed to be "involuntary" (Sanchez Roman, Estudios de
Derecho Civil 2nd edition, Volume 2.o p. 1131). 10

The effects of preterition and disinheritance are also totally different.

... The effects flowing from preterition are totally different from those of
disinheritance. Pretention under Article 854 of the New Civil Code shall annul the
institution of heir. This annulment is in toto, unless in the wail there are, in addition,
testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also
"annul the institution of heirs", but only "insofar as it may prejudice the person

disinherited", which last phrase was omitted in the case of preterition (III Tolentino,
Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the
disinherited heirs have been illegally deprived. 11

By virtue of the dismissal of the Testate Case, the determination of that

controversial issue has not been thoroughly considered. We gather from the
assailed Order of the trial Court that its conclusion was that respondent Bernardo
has been preterited We are of opinion, however, that from the face of the Will, that
conclusion is not indubitable.

As held in the case of Vda. de Precilla vs. Narciso 12

... it is as important a matter of public interest that a purported will is not denied
legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, ...

Coming now to the procedural aspect, suffice it to state that in view of our finding
that respondent Judge had acted in excess of his jurisdiction in dismissing the
Testate Case, certiorari is a proper remedy. An act done by a Probate Court in excess
of its jurisdiction may be corrected by Certiorari. 13 And even assuming the
existence of the remedy of appeal, we harken to the rule that in the broader
interests of justice, a petition for certiorari may be entertained, particularly where
appeal would not afford speedy and adequate relief.

WHEREFORE, the Decision in question is set aside and the Orders of the Court of
First Instance-Branch XI, Rizal, dated September 8, 1980 and December 19, 1980,
are nullified. Special Proceeding No. Q-23304 is hereby remanded to said Court of
First Instance-Branch XI. Rizal, therein to be reinstated and consolidated with
Special Proceeding No. 8569 for further proceedings.

No pronouncement as to costs.

SO ORDERED.

RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO,

petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ,
BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA
respondents.

Salonga, Ordoez, Yap, Sicat and Associates for petitioners.

Ruben Austria for himself and co-petitioners.

De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.

Villareal, Almacen, Navarra and Amores for other respondents.

CASTRO, J.:

On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of
Rizal (Special Proceedings 2457) a petition for probate, ante mortem, of her last will
and testament. The probate was opposed by the present petitioners Ruben Austria,
Consuelo Austria-Benta and Lauro Austria Mozo, and still others who, like the
petitioner, are nephews and nieces of Basilia. This opposition was, however,
dismissed and the probate of the will allowed after due hearing.

The bulk of the estate of Basilia, admittedly, was destined under the will to pass on
to the respondents Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz,
and Luz Cruz-Salonga, all of whom had been assumed and declared by Basilia as
her own legally adopted children.

On April 23, 1959, more than two years after her will was allowed to probate, Basilia
died. The respondent Perfecto Cruz was appointed executor without bond by the
same court in accordance with the provisions of the decedent's will, notwithstanding
the blocking attempt pursued by the petitioner Ruben Austria.

Finally, on November 5, 1959, the present petitioners filed in the same proceedings
a petition in intervention for partition alleging in substance that they are the nearest
of kin of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact
been adopted by the decedent in accordance with law, in effect rendering these
respondents mere strangers to the decedent and without any right to succeed as
heirs.

Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the

estate, the court a quo allowed the petitioners' intervention by its order of
December 22, 1959, couched in broad terms, as follows: "The Petition in
Intervention for Partition filed by the above-named oppositors [Ruben Austria, et
al.,] dated November 5, 1959 is hereby granted."

In the meantime, the contending sides debated the matter of authenticity or lack of
it of the several adoption papers produced and presented by the respondents. On
motion of the petitioners Ruben Austria, et al., these documents were referred to
the National Bureau of Investigation for examination and advice. N.B.I. report seems
to bear out the genuineness of the documents, but the petitioners, evidently
dissatisfied with the results, managed to obtain a preliminary opinion from a
Constabulary questioned-document examiner whose views undermine the
authenticity of the said documents. The petitioners Ruben Austria, et al., thus
moved the lower court to refer the adoption papers to the Philippine Constabulary
for further study. The petitioners likewise located former personnel of the court
which appeared to have granted the questioned adoption, and obtained written
depositions from two of them denying any knowledge of the pertinent adoption
proceedings.

On February 6, 1963, more than three years after they were allowed to intervene,
the petitioners Ruben Austria, let al., moved the lower court to set for hearing the
matter of the genuineness of the adoption of the respondents Perfecto Cruz, et al.,
by the late Basilia. Before the date set by the court for hearing arrived, however,
the respondent Benita Cruz-Meez who entered an appearance separately from that
of her brother Perfecto Cruz, filed on February 28, 1963 a motion asking the lower
court, by way of alternative relief, to confine the petitioners' intervention, should it
be permitted, to properties not disposed of in the will of the decedent.

On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides
subsequently submitted their respective memoranda, and finally, the lower court
issued an order on June 4, 1963, delimiting the petitioners' intervention to the
properties of the deceased which were not disposed of in the will.

The petitioners moved the lower court to reconsider this latest order, eliciting
thereby an opposition, from the respondents. On October 25, 1963 the same court
denied the petitioners' motion for reconsideration.

A second motion for reconsideration which set off a long exchange of memoranda
from both sides, was summarily denied on April 21, 1964.

Hence this petition for certiorari, praying this Court to annul the orders of June 4 and
October 25, 1963 and the order of April 21, 1964, all restricting petitioners'
intervention to properties that were not included in the decedent's testamentary
dispositions.

The uncontested premises are clear. Two interests are locked in dispute over the
bulk of the estate of the deceased. Arrayed on one side are the petitioners Ruben
Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of
nephews and nieces who are concededly the nearest surviving blood relatives of the
decedent. On the other side are the respondents brothers and sisters, Perfecto Cruz,
Benita Cruz-Meez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom
heirs in the will of the deceased Basilia, and all of whom claim kinship with the
decedent by virtue of legal adoption. At the heart of the controversy is Basilia's last
will immaculate in its extrinsic validity since it bears the imprimatur of duly
conducted probate proceedings.

The complaint in intervention filed in the lower court assails the legality of the tie
which the respondent Perfecto Cruz and his brothers and sisters claim to have with
the decedent. The lower court had, however, assumed, by its orders in question,
that the validity or invalidity of the adoption is not material nor decisive on the
efficacy of the institution of heirs; for, even if the adoption in question were
spurious, the respondents Perfecto Cruz, et al., will nevertheless succeed not as
compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling
apparently finds support in article, 842 of the Civil Code which reads:

One who has no compulsory heirs may dispose of by will all his estate or any part of
it in favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs.

The lower court must have assumed that since the petitioners nephews and niece
are not compulsory heirs, they do not possess that interest which can be prejudiced

by a free-wheeling testamentary disposition. The petitioners' interest is confined to

properties, if any, that have not been disposed of in the will, for to that extent
intestate succession can take place and the question of the veracity of the adoption
acquires relevance.

The petitioners nephews and niece, upon the other hand, insist that the entire
estate should descend to them by intestacy by reason of the intrinsic nullity of the
institution of heirs embodied in the decedent's will. They have thus raised squarely
the issue of whether or not such institution of heirs would retain efficacy in the
event there exists proof that the adoption of the same heirs by the decedent is
false.

The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:

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

Coming closer to the center of the controversy, the petitioners have called the
attention of the lower court and this Court to the following pertinent portions of the
will of the deceased which recite:

III

Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking

itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto,
Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz.

xxx

xxx

xxx

Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ariariang maiiwan, sa kaparaanang sumusunod:

A.Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto,

Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang
kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang
sapilitang mana (legiti[ma]), ang kalahati () ng aking kaparti sa lahat ng aming
ari-ariang gananciales ng aking yumaong asawang Pedro Cruz na napapaloob sa
Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa
No. 1 ng parafo IV ng testamentong ito, ang kalahati () ng mga lagay na lupa at
palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama
na si Calixto Austria, at ang kalahati () ng ilang lagay na lupa na nasa Tinejeros,
Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria.

The tenor of the language used, the petitioners argue, gives rise to the inference
that the late Basilia was deceived into believing that she was legally bound to
bequeath one-half of her entire estate to the respondents Perfecto Cruz, et al. as
the latter's legitime. The petitioners further contend that had the deceased known
the adoption to be spurious, she would not have instituted the respondents at all
the basis of the institution being solely her belief that they were compulsory heirs.
Proof therefore of the falsity of the adoption would cause a nullity of the institution
of heirs and the opening of the estate wide to intestacy. Did the lower court then
abuse its discretion or act in violation of the rights of the parties in barring the
petitioners nephews and niece from registering their claim even to properties
adjudicated by the decedent in her will?

Before the institution of heirs may be annulled under article 850 of the Civil Code,
the following requisites must concur: First, the cause for the institution of heirs must
be stated in the will; second, the cause must be shown to be false; and third, it must
appear from the face of the will that the testator would not have made such
institution if he had known the falsity of the cause.

The petitioners would have us imply, from the use of the terms, "sapilitang
tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the
impelling reason or cause for the institution of the respondents was the testatrix's
belief that under the law she could not do otherwise. If this were indeed what
prompted the testatrix in instituting the respondents, she did not make it known in
her will. Surely if she was aware that succession to the legitime takes place by
operation of law, independent of her own wishes, she would not have found it
convenient to name her supposed compulsory heirs to their legitimes. Her express
adoption of the rules on legitimes should very well indicate her complete agreement

with that statutory scheme. But even this, like the petitioners' own proposition, is
highly speculative of what was in the mind of the testatrix when she executed her
will. One fact prevails, however, and it is that the decedent's will does not state in a
specific or unequivocal manner the cause for such institution of heirs. We cannot
annul the same on the basis of guesswork or uncertain implications.

And even if we should accept the petitioners' theory that the decedent instituted
the respondents Perfecto Cruz, et al. solely because she believed that the law
commanded her to do so, on the false assumption that her adoption of these
respondents was valid, still such institution must stand.

Article 850 of the Civil Code, quoted above, is a positive injunction to ignore
whatever false cause the testator may have written in his will for the institution of
heirs. Such institution may be annulled only when one is satisfied, after an
examination of the will, that the testator clearly would not have made the institution
if he had known the cause for it to be false. Now, would the late Basilia have caused
the revocation of the institution of heirs if she had known that she was mistaken in
treating these heirs as her legally adopted children? Or would she have instituted
them nonetheless?

The decedent's will, which alone should provide the answer, is mute on this point or
at best is vague and uncertain. The phrases, "mga sapilitang tagapagmana" and
"sapilitang mana," were borrowed from the language of the law on succession and
were used, respectively, to describe the class of heirs instituted and the abstract
object of the inheritance. They offer no absolute indication that the decedent would
have willed her estate other than the way she did if she had known that she was not
bound by law to make allowance for legitimes. Her disposition of the free portion of
her estate (libre disposicion) which largely favored the respondent Perfecto Cruz,
the latter's children, and the children of the respondent Benita Cruz, shows a
perceptible inclination on her part to give to the respondents more than what she
thought the law enjoined her to give to them. Compare this with the relatively small
devise of land which the decedent had left for her blood relatives, including the
petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the
petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al.
from the inheritance, then the petitioners and the other nephews and nieces would
succeed to the bulk of the testate by intestacy a result which would subvert the
clear wishes of the decedent.

Whatever doubts one entertains in his mind should be swept away by these explicit
injunctions in the Civil Code: "The words of a will are to receive an interpretation
which will give to every expression some effect, rather than one which will render
any of the expressions inoperative; and of two modes of interpreting a will, that is to
be preferred which will prevent intestacy." 1

Testacy is favored and doubts are resolved on its side, especially where the will
evinces an intention on the part of the testator to dispose of practically his whole
estate,2 as was done in this case. Moreover, so compelling is the principle that
intestacy should be avoided and the wishes of the testator allowed to prevail, that
we could even vary the language of the will for the purpose of giving it effect.3 A
probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz
was possessed of testamentary capacity and her last will executed free from
falsification, fraud, trickery or undue influence. In this situation, it becomes our duty
to give full expression to her will.4

At all events, the legality of the adoption of the respondents by the testatrix can be
assailed only in a separate action brought for that purpose, and cannot be the
subject of a collateral attack.5

To the petitioners' charge that the lower court had no power to reverse its order of
December 22, 1959, suffice it to state that, as borne by the records, the subsequent
orders complained of served merely to clarify the first an act which the court
could legally do. Every court has the inherent power to amend and control its
processes and orders so as to make them conformable to law and justices.6 That
the court a quo has limited the extent of the petitioners' intervention is also within
its powers as articulated by the Rules of Court.7

ACCORDINGLY, the present petition is denied, at petitioners cost.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee,

Barredo and Villamor, JJ., concur.

BEATRIZ L. GONZALES, petitioner,

vs.
COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO
L. VALDEZ, ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO
LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y
HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO LEGARDA Y
HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA LEGARDA Y LOBREGAT,
JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT, ALEJANDRO LEGARDA Y
LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA. ANTONIA LEGARDA Y
LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO
LEGARDA Y LOBREGAT, EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA,
and the ESTATE OF DONA FILOMENA ROCES DE LEGARDA, respondents.

AQUINO, J.:1wph1.t

Beatriz Legarda Gonzales appealed from the decision of the Court of First Instance
of Manila, dismissing her complaint for partition, accounting, reconveyance and
damages and holding, as not subject to reserve troncal, the properties which her
mother Filomena Races inherited in 1943 from Filomena Legarda (Civil Case No.
73335). The facts are as follows:

Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died [Manila] on
June 17, 1933. He was survived by his widow, Filomena Races, and their seven
children: four daughters named Beatriz, Rosario, Teresa and Filomena and three
sons named Benito, Alejandro and Jose.

On July 12, 1939, the real properties left by Benito Legarda y Tuason were
partitioned in three equal portions by his daughters, Consuelo and Rita, and the
heirs of his deceased son Benito Legarda y De la Paz who were represented by
Benito F. Legarda.

Filomena Legarda y Races died intestate and without issue on March 19, 1943. Her
sole heiress was her mother, Filomena Races Vda. de Legarda.

Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to

herself the properties which she inherited from her deceased daughter, Filomena
Legarda. The said properties consist of the following: 1wph1.t

(a)
Savings deposit in the National City Bank of New York with a credit balance of
P3,699.63.

(b)
1,429 shares of the Benguet Consolidated Mining Company and a 1/7 interest
in certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd., Philippine
Guaranty Company, Insular Life Assurance Company and the Manila Times.

(c)
1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles),
80260, 80261 and 57512 of the Manila registry of deeds.

1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202, 48205,
48203, 48206, 48160 and 48192 of the Manila registry of deeds;

1/21st of the property described in TCT No. 4475 of the registry of deeds of Rizal,
now Quezon City; 1/14th of the property described in TCT No. 966 of the registry of
deeds of Baguio;

1/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of the
Manila registry of deeds; 1/7th of the lots and improvements at 181 San Rafael
describe in TCT Nos. 50495 and 48161 of the Manila registry of deeds;

1/7th of the property described in TCT No. 48163 of the Manila registry of deeds
(Streets);

l/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila
registry of deeds (Streets and Estero):

2/21st of the property described in TCT No. 13458 of tile registry of deeds of
T0ayabas.

These are the properties in litigation in this case. As a result of the affidavit of
adjudication, Filomena Races succeeded her deceased daughter Filomena Legarda
as co-owner of the properties held proindiviso by her other six children.

Mrs. Legarda on March 6, 1953 executed two handwritten Identical documents

wherein she disposed of the properties, which she inherited from her daughter, in
favor of the children of her sons, Benito, Alejandro and Jose (sixteen grandchildren
in all). The document reads: 1wph1.t

A mis hijos :

Dispongo que se reparta a todos mis nietos hijos de Ben, Mandu y Pepito, los bienes
que he heredado de mi difunta hija Filomena y tambien los acciones de la Destileria
La Rosario' recientemente comprada a los hermanos Values Legarda.

De los bienes de mi hija Filomena se deducira un tote de terreno que yo he 0donada

a las Hijas de Jesus, en Guipit

La case No. 181 San Rafael, la cede a mi hijo Mandu solo la casa; proque ella esta
construida sobre terreno de los hermanos Legarda Races. 1wph1.t

(Sgd.) FILOMENA ROCES LEGARDA

6 Marzo 1953

During the period from July, 1958 to February, 1959 Mrs. Legarda and her six
surviving children partitioned the properties consisting of the one-third share in the
estate of Benito Legarda y Tuason which the children inherited in representation of
their father, Benito Legarda y De la Paz.

Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a
holographic will in the order dated July 16, 1968 of the Court of First Instance of
Manila in Special Proceeding No. 70878, Testate Estate of Filomena Races Vda. de
Legarda. The decree of probate was affirmed by the Court of Appeals in Legarda vs.
Gonzales, CA-G.R. No. 43480-R, July 30,1976.

In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix,

filed on May 20, 1968 a motion to exclude from the inventory of her mother's estate
the properties which she inherited from her deceased daughter, Filomena, on the
ground that said properties are reservable properties which should be inherited by
Filomena Legarda's three sisters and three brothers and not by the children of
Benito, Alejandro and Jose, all surnamed Legarda. That motion was opposed by the
administrator, Benito F. Legarda.

Without awaiting the resolution on that motion, Mrs. Gonzales filed on June 20, 1968
an ordinary civil action against her brothers, sisters, nephews and nieces and her
mother's estate for the purpose of securing a declaration that the said properties
are reservable properties which Mrs. Legarda could not bequeath in her holographic
will to her grandchildren to the exclusion of her three daughters and her three sons
(See Paz vs. Madrigal, 100 Phil. 1085).

As already stated, the lower court dismissed the action of Mrs. Gonzales. ln this
appeal under Republic Act No. 5440 she contends in her six assignments of error
that the lower court erred in not regarding the properties in question as reservable
properties under article 891 of the Civil Code.

On the other hand, defendants-appellees in their six counter-assignments of error

contend that the lower court erred in not holding that Mrs. Legarda acquired the
estate of her daughter Filomena] Legarda in exchange for her conjugal and
hereditary shares in the estate of her husband Benito Legarda y De la Paz and in not
holding that Mrs. Gonzales waived her right to the reservable properties and that
her claim is barred by estoppel, laches and prescription.

The preliminary issue raised by the private respondents as to the timeliness of Mrs.
Gonzales' petition for review is a closed matter. This Court in its resolution of
December 16, 1971 denied respondents' motion to dismiss and gave due course to
the petition for review.

In an appeal under Republic Act No. 5440 only legal issues can be raised under
undisputed facts. Since on the basis of the stipulated facts the lower court resolved
only the issue of whether the properties in question are subject to reserva troncal
that is the only legal issue to be resolved in this appeal.

The other issues raised by the defendants-appellees, particularly those involving

factual matters, cannot be resolved in this appeal. As the trial court did not pass
upon those issues, there is no ruling which can be reviewed by this Court.

The question is whether the disputed properties are reservable properties under
article 891 of the Civil Code, formerly article 811, and whether Filomena Races Vda.
de Legarda could dispose of them in his will in favor of her grandchildren to the
exclusion of her six children.

Did Mrs. Legarda have the right to convey mortis causa what she inherited from her
daughter Filomena to the reservees within the third degree and to bypass the
reservees in the second degree or should that inheritance automatically go to the
reservees in the second degree, the six children of Mrs. Legarda?

As will hereinafter be shown that is not a novel issue or a question of first

impression. lt was resolved in Florentino vs. Florentino, 40 Phil. 480. Before
discussing the applicability to this case of the doctrine in the Florentino case and
other pertinent rulings, it may be useful to make a brief discourse on the nature of
reserve troncal, also called lineal, familiar, extraordinaria o semi-troncal.

Much time, effort and energy were spent by the parties in their five briefs in
descanting on the nature of reserve troncal which together with the reserva viudal
and reversion legal, was abolished by the Code Commission to prevent the
decedent's estate from being entailed, to eliminate the uncertainty in ownership
caused by the reservation (which uncertainty impedes the improvement of the
reservable property) and to discourage the confinement of property within a certain
family for generations which situation allegedly leads to economic oligarchy, and is
incompatible with the socialization of ownership.

The Code Commission regarded the reservas as remnants of feudalism which

fomented agrarian unrest. Moreover, the reserves, insofar as they penalize
legitimate relationship, is considered unjust and inequitable.

However, the lawmaking body, not agreeing entirely with the Code Commission,
restored the reserve troncal, a legal institution which, according to Manresa and
Castan Tobenas has provoked questions and doubts that are difficult to resolve.

Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article
891, which reads: 1wph1.t

ART. 811.
El ascendiente que heredare de su descendiente bienes que este
hubiese adquirido por titulo lucrative de otro ascendiente, o de un hermano, se
halla obligado a reservas los que hubiere adquirido por ministerio de la ley en favor
de los parientes que eaten dentro del tercer grade y pertenezcan a la linea de
donde los bienes proceden

ART. 891.
The ascendant who inherits from his descendant any property which
the latter may have acquired by gratuitous title from another ascendant, or a

brother or sister, is obliged to reserve such property as he may have acquired by

operation of law for the benefit of relatives who are within the third degree and who
belong to the line from which said property came.

In reserve troncal (1) a descendant inherited or acquired by gratuitous title property

from an ascendant or from a brother or sister; (2) the same property is inherited by
another ascendant or is acquired by him by operation of law from the said
descendant, and (3) the said ascendant should reserve the said property for the
benefit of relatives who are within the third degree from the deceased descendant
(prepositus) and who belong to the line from which the said property came.

So, three transmissions are involved: (I) a first transmission by lucrative title
(inheritance or donation) from an ascendant or brother or sister to the deceased
descendant; (2) a posterior transmission, by operation of law (intestate succession
or legitime) from the deceased descendant (causante de la reserve) in favor of
another ascendant, the reservor or reservista, which two transmissions precede the
reservation, and (3) a third transmissions of the same property (in consequence of
the reservation) from the reservor to the reservees (reservatarios) or the relatives
within the third degree from the deceased descendant belonging to the line of the
first ascendant, brother or sister of the deceased descendant (6 Castan Tobenas
Derecho Civil, Part l, 1960, 6th Ed., pp. 198-9).

If there are only two transmissions there is no reserve. Thus, where one Bonifacia
Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the
death of Juan, those lands should be inherited by his half-sister, to the exclusion of
his maternal first cousins. The said lands are not reservable property within the
meaning of article 811 (Lacerna vs. Vda. de Corcino, l l l Phil. 872).

The persons involved in reserve troncal are (1) the ascendant or brother or sister
from whom the property was received by the descendant by lucrative or gratuitous
title, (2) the descendant or prepositus (prepositus) who received the property, (3)
the reservor (reservista) the other ascendant who obtained the property from the
(prepositus) by operation of law and (4) the reserves (reservatario) who is within the
third degree from the prepositus and who belongs to the (line o tronco) from which
the property came and for whom the property should be reserved by the reservor.

The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil.
1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31,
1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor,
72 Phil. 392).

The rationale of reserve troncal is to avoid "el peligro de que bienes poseidos
secularmente por una familia pasen bruscamente a titulo gratuito a manos extraas
por el azar de los enlaces y muertes prematuras or impeder que, por un azar de la
vide personas extranas a una familia puedan adquirir bienes que sin aquel hubieran
quedado en ella (6 Castan Tobenas Derecho Civil, Part l, 6th Ed., 1980, p. 203;
Padura vs. Baldovino, 104 Phil. 1065).

An illustration of reserve troncal is found in Edroso vs. Sablan, 25 Phil. 295. ln that
case, Pedro Sablan inherited two parcels of land from his father Victorians. Pedro
died in 1902, single and without issue. His mother, Marcelina Edroso, inherited from
him the two parcels of land.

It was held that the land was reservable property in the hands of Marcelina. The
reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro
Sablan, the prepositus. Marcelina could register the land under the Torrens system
in her name but the fact that the land was reservable property in favor of her two
brothers-in-law, should they survive her, should be noted in the title.

In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half
share of a parcel of conjugal land was inherited by her daughter, Juliana Maalac.
When Juliana died intestate in 1920, said one-half share was inherited by her father,
Anacleto Maalac who owned the other one-half portion.

Anacleto died intestate in 1942, survived by his second wife and their six children. lt
was held that the said one-half portion was reservable property in the hands of
Anacleto Maalac and, upon his death, should be inherited by Leona Aglibot and
Evarista Aglibot, sisters of Maria and materna aunts of Juliana Maalac, who
belonged to the line from which said one-half portion came (Aglibot vs. Maalac 114
Phil. 964).

Other illustrations of reserva troncal are found in Florentino vs Florentino, 40 Phil.

480; Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and
Gutierrez vs. Balcita 46 Phil. 551; Lunsod vs. Ortega, 46 Phil. 664; Dizon vs. Galang,
48 Phil. 601; Riosa vs. Rocha, 48 Phil. 737; Centeno vs. Centeno 52 Phil. 322; Velayo
Bernardo vs. Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina
vs. Abille, CA 39 O.G. 1784.

The person from whom the degree should be reckoned is the descendant, or the one
at the end of the line from which the property came and upon whom the property
last revolved by descent. He is called the prepositus (Cabardo vs. Villanueva. 44
Phil. 186, 190).

In the Cabardo case, one Cornelia Abordo inherited property from her mother,
Basilia Cabardo. When Cornelia died, her estate passed to her father, Lorenzo
Abordo. ln his hands, the property was reservable property. Upon the death of
Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of
Cornelia, who was her nearest relative within the third degree.

First cousins of the prepositus are in the fourth degree and are not reservees. They
cannot even represent their parents because representation is confined to relatives
within the third degree (Florentino vs. Florentino, 40 Phil. 480).

Within the third degree, the nearest relatives exclude the more remote subject to
the rule of representation. But the representative should be within the third degree
from the prepositus (Padura vs. Baldovino, 104 Phil. 1065).

Reserva troncal contemplates legitimate relationship. illegitimate relationship and

relationship by affinity are excluded.

Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient

gives nothing in return such as donacion and succession (Cabardo vs. Villanueva, 44
Phil. 186, 189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 195 l, p. 360).

The reserva creates two resolutory conditions, namely, (1) the death of the
ascendant obliged to reserve and (2) the survival, at the time of his death, of
relatives within the third degree belonging to the line from which the property came
(Sienes vs. E Esparcia l l l Phil. 349, 353).

The reservor has the legal title and dominion to the reservable property but subject
to the resolutory condition that such title is extinguished if the reservor
predeceased the reservee. The reservor is a usufructuary of the reservable property.
He may alienate it subject to the reservation. The transferee gets the revocable and
conditional ownership of the reservor. The transferee's rights are revoked upon the
survival of the reservees at the time of the death of the reservor but become
indefeasible when the reservees predecease the reservor. (Sienes vs. Esparcia, 111
Phil. 349, 353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664;
Florentino vs. Florentino, 40 Phil. 480: Director of Lands vs. Aguas, 63 Phil. 279.)

The reservor's title has been compared with that of the vendee a retro in a pacta de
retro sale or to a fideicomiso conditional.

The reservor's alienation of the reservable property is subject to a resolutory

condition, meaning that if at the time of the reservor's death, there are reservees,
the transferee of the property should deliver it to the reservees. lf there are no
reservees at the time of the reservor's death, the transferee's title would become
absolute. (Lunsod vs. Ortega, 46 Phil. 664; Gueco vs. Lacson, 118 Phil. 944; Mono
vs. Nequia 93 Phil. 120).

On the other hand, the reserves has only an inchoate, expectant or contingent right.
His expectant right would disappear if he predeceased the reservor. lt would
become absolute should the reservor predecease the reserves.

The reserves cannot impugn any conveyance made by the reservor but he can
require that the reservable character of the property be recognized by the
purchaser (Riosa vs. Rocha 48 Phil. 737; Edroso vs. Sablan, 25 Phil. 295, 312-3;
Gueco vs. Lacson, 118 Phil. 944).

There is a holding that the renunciation of the reservee's right to the reservable
property is illegal for being a contract regarding future inheritance (Velayo Bernardo
vs. Siojo, 58 Phil. 89, 96).

And there is a dictum that the reservee's right is a real right which he may alienate
and dispose of conditionally. The condition is that the alienation shall transfer
ownership to the vendee only if and when the reserves survives the reservor
(Sienes vs. Esparcia, 111 Phil. 349, 353). 1wph1.t

The reservatario receives the property as a conditional heir of the descendant

(prepositus) said property merely reverting to the line of origin from which it had
temporarily and accidentally stayed during the reservista's lifetime. The authorities
are all agreed that there being reservatarios that survive the reservists, the latter
must be deemed to have enjoyed no more than a than interest in the reservable
property. (J. J. B. L. Reyes in Cane vs. Director of Lands, 105 Phil. l5.)

Even during the reservista's lifetime, the reservatarios, who are the ultimate
acquirers of the property, can already assert the right to prevent the reservista from
doing anything that might frustrate their reversionary right, and, for this purpose,
they can compel the annotation of their right in the registry of property even while
the (reservista) is alive (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs.
Sablan, 25 Phil. 295).

This right is incompatible with the mere expectancy that corresponds to the natural
heirs of the reservista lt is likewise clear that the reservable property is no part of
the estate of the reservista who may not dispose of them (it) by will, so long as
there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 226, 237).

The latter, therefore, do not inherit from the reservista but from the descendant
(prepositus) of whom the reservatarios are the heirs mortis causa, subject to the
condition that they must survive the reservista. (Sanchez Roman, Vol. VI Tomo 2, p.
286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in
Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065).

Hence, upon the reservista's death, the reservatario nearest to the prepositus
becomes, "automatically and by operation of law, the owner of the reservable
property." (Cane vs. Director of Lands, 105 Phil. l5.)

In the instant case, the properties in question were indubitably reservable

properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The
reservation became a certainty when at the time of her death the reservees or
relatives within the third degree of the prepositus Filomena Legarda were living or
they survived Mrs. Legarda.

So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could
convey the reservable properties by will or mortis causa to the reservees within the
third degree (her sixteen grandchildren) to the exclusion of the reservees in the
second degree, her three daughters and three sons. As indicated at the outset, that
issue is already res judicata or cosa juzgada.

We hold that Mrs. Legarda could not convey in her holographic will to her sixteen
grandchildren the reservable properties which she had inherited from her daughter
Filomena because the reservable properties did not form part of her estate (Cabardo
vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis
causa of the reservable properties as long as the reservees survived the reservor.

As repeatedly held in the Cano and Padura cases, the reservees inherit the
reservable properties from the prepositus, not from the reservor.

Article 891 clearly indicates that the reservable properties should be inherited by all
the nearest relatives within the third degree from the prepositus who in this case
are the six children of Mrs. Legarda. She could not select the reservees to whom the
reservable property should be given and deprive the other reservees of their share
therein.

To allow the reservor in this case to make a testamentary disposition of the

reservable properties in favor of the reservees in the third degree and,
consequently, to ignore the reservees in the second degree would be a glaring
violation of article 891. That testamentary disposition cannot be allowed.

We have stated earlier that this case is governed by the doctrine of Florentino vs.
Florentino, 40 Phil. 480, a similar case, where it was ruled: 1wph1.t

Reservable property left, through a will or otherwise, by the death of ascendant

(reservista) together with his own property in favor of another of his descendants as
forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for
the reason that, as said property continued to be reservable, the heir receiving the
same as an inheritance from his ascendant has the strict obligation of its delivery to
the relatives, within the third degree, of the predecessor in interest (prepositus),
without prejudicing the right of the heir to an aliquot part of the property, if he has
at the same time the right of a reservatario (reserves).

ln the Florentino case, it appears that Apolonio Florentino II and his second wife
Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two
inherited properties from their father. Upon Apolonio III death in 1891, his properties
were inherited by his mother, Severina, who died in 1908. ln her will, she instituted
her daughter Mercedes as heiress to all her properties, including those coming from
her deceased husband through their son, Apolonio III.

The surviving children, begotten by Apolonio II with his first wife Antonia Faz de
Leon and the descendants of the deceased children of his first marriage, sued
Mercedes Florentino for the recovery of their share in the reservable properties,
which Severina de Leon had inherited from Apolonio III which the latter had
inherited from his father Apolonio II and which Severina willed to her daughter
Mercedes.

Plaintiff's theory was that the said properties, as reservable properties, could not be
disposed of in Severina's will in favor of Mercedes only. That theory was sustained
by this Court.

It was held that the said properties, being reservable properties, did not form part of
Severina's estate and could not be inherited from her by her daughter Mercedes
alone.

As there were seven reservees, Mercedes was entitled, as a reserves, to oneseventh of the properties. The other six sevenths portions were adjudicated to the
other six reservees.

Under the rule of stare decisis et non quieta movere, we are bound to follow in this
case the doctrine of the Florentino case. That doctrine means that as long as during
the reservor's lifetime and upon his death there are relatives within the third degree
of the prepositus regardless of whether those reservees are common descendants
of the reservor and the ascendant from whom the property came, the property
retains its reservable character. The property should go to the nearest reservees.
The reservor cannot, by means of his will, choose the reserves to whom the
reservable property should be awarded.

The alleged opinion of Sanchez Roman that there is no reserva troncal when the
only relatives within the third degree are the common descendants of the
predeceased ascendant and the ascendant who would be obliged to reserve is
irrelevant and sans binding force in the light of the ruling in the Florentino case.

It is contended by the appellees herein that the properties in question are not
reservable properties because only relatives within the third degree from the
paternal line have survived and that when Mrs. Legarda willed the said properties to
her sixteen grandchildren, who are third-degree relatives of Filomena Legarda and
who belong to the paternal line, the reason for the reserva troncal has been
satisfied: "to prevent persons outside a family from securing, by some special
accident of life, property that would otherwise have remained therein".

That same contention was advanced in the Florentino case where the reservor
willed the reservable properties to her daughter, a full-blood sister of the prepositus
and ignored the other six reservors, the relatives of the half-blood of the prepositus.

In rejecting that contention, this Court held that the reservable property bequeathed
by the reservor to her daughter does not form part of the reservor's estate nor of
the daughter's estate but should be given to all the seven reservees or nearest
relatives of the prepositus within the third degree.

This Court noted that, while it is true that by giving the reservable property to only
one reserves it did not pass into the hands of strangers, nevertheless, it is likewise
true that the heiress of the reservor was only one of the reservees and there is no
reason founded upon law and justice why the other reservees should be deprived of
their shares in the reservable property (pp. 894-5).

Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of
in her will the properties in question even if the disposition is in favor of the
relatives within the third degree from Filomena Legarda. The said properties, by
operation of Article 891, should go to Mrs. Legarda's six children as reservees within
the second degree from Filomena Legarda.

It should be repeated that the reservees do not inherit from the reservor but from
the reservor but from the prepositus, of whom the reservees are the heirs mortis
causa subject to the condition that they must survive the reservor (Padura vs.
Baldovino, L-11960, December 27, 1958, 104 Phil. 1065).

The trial court said that the disputed properties lost their reservable character due
to the non-existence of third-degree relatives of Filomena Legarda at the time of the
death of the reservor, Mrs. Legarda, belonging to the Legarda family, "except thirddegree relatives who pertain to both" the Legarda and Races lines.

That holding is erroneous. The reservation could have been extinguished only by the
absence of reservees at the time of Mrs. Legarda's death. Since at the time of her
death, there were (and still are) reservees belonging to the second and third
degrees, the disputed properties did not lose their reservable character. The
disposition of the said properties should be made in accordance with article 891 or
the rule on reserva troncal and not in accordance with the reservor's holographic
will. The said properties did not form part of Mrs. Legarda's estate. (Cane vs.
Director of Lands, 105 Phil. l, 4).

WHEREFORE, the lower court's decision is reversed and set aside. lt is hereby
adjudged that the properties inherited by Filomena Roces Vda. de Legarda from her
daughter Filomena Legarda, with all the fruits and accessions thereof, are
reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and
Jose, all surnamed Legarda y Roces, as reservees. The shares of Rosario L. Valdes

and Benito F. Legarda, who died in 1969 and 1973, respectively, should pertain to
their respective heirs. Costs against the private respondents.

SO ORDERED.

CATALINA BUGNAO, proponent-appellee,

vs.
FRANCISCO UBAG, ET AL., contestants-appellants.

Rodriguez and Del Rosario for appellants.

Fernando Salas for appellee.

CARSON, J.:

This is an appeal from an order of the Court of First Instance of Oriental Negros,
admitting to probate a document purporting to be the last will and testament of
Domingo Ubag, deceased. The instrument was propounded by his widow, Catalina
Bugnao, the sole beneficiary thereunder, and probate was contested by the
appellants, who are brothers and sisters of the deceased, and who would be entitled
to share in the distribution of his estate, if probate were denied, as it appears that
the deceased left no heirs in the direct ascending or descending line.

Appellants contend that the evidence of record is not sufficient to establish the
execution of the alleged will in the manner and form prescribed in section 618 of the
Code of Civil Procedure ; and that at the time when it is alleged that the will was

executed, Ubag was not of sound mind and memory, and was physically and
mentally incapable of making a will.

The instrument propounded for probate purports to be the last will and testament of
Domingo Ubag, signed by him in the presence of three subscribing and attesting
witnesses, and appears upon its face to have been duly executed in accordance
with the provisions of the Code of Civil Procedure touching the making of wills.

Two of the subscribing witnesses, Victor J. Bingtoy and Catalino Mario, testified in
support of the will, the latter being the justice of the peace of the municipality
wherein it was executed; and their testimony was corroborated in all important
details by the testimony of the proponent herself, who was present when the will
was made. It does not appear from the record why the third subscribing witness was
not called; but since counsel for the contestants makes no comment upon his
absence, we think it may safely be inferred that there was some good and sufficient
reason therefore. In passing, however, it may be well to observe that, when because
of death, sickness, absence, or for any other reason, it is not practicable to call to
the witness stand all the subscribing witnesses to a will offered for probate, the
reason for the absence of any of these witnesses should be made to appear of
record, and this especially in cases such as the one at bar, wherein there is a
contests.

The subscribing witnesses gave full and detailed accounts of the execution of the
will and swore that the testator, at the time of its execution, was of sound mind and
memory, and in their presence attached his signature thereto as his last will and
testament, and that in his presence and in the presence of each other, they as well
as the third subscribing witness. Despite the searching and exhaustive crossexamination to which they were subjected, counsel for appellants could point to no
flaw in their testimony save an alleged contradiction as to a single incident which
occurred at or about the time when the will was executed a contradiction, however,
which we think is more apparent than real. One of the witnesses stated that the
deceased sat up in bed and signed his name to the will, and that after its execution
food was given him by his wife; while the other testified that he was assisted into a
sitting position, and was given something to eat before he signed his name. We
think the evidence discloses that his wife aided the sick man to sit up in bed at the
time when he signed his name to the instrument, and that he was given
nourishment while he was in that position, but it is not quite clear whether this was
immediately before or after, or both before and after he attached his signature to
the will. To say that the sick man sat up or raised himself up in bed is not
necessarily in conflict with the fact that he received assistance in doing so; and it is

not at all improbable or impossible that nourishment might have been given to him
both before and after signing the will, and that one witness might remember the
former occasion and the other witness might recall the latter, although neither
witness could recall both. But, however this may have been, we do not think that a
slight lapse of memory on the part of one or the other witness, as to the precise
details of an unimportant incident, to which his attention may not have been
particularly directed, is sufficient to raise a doubt as to the veracity of these
witnesses, or as to the truth and accuracy of their recollection of the fact of the
execution of the instrument. Of course, a number of contradictions in the testimony
of alleged subscribing witnesses to a will as to the circumstances under which it was
executed, or even a single contradiction as to a particular incident, where the
incident was of such a nature that the intention of any person who was present
must have been directed to it, and where the contradictory statements in regard to
it are so clear and explicit as to negative the possibility or probability of mistake,
might well be sufficient to justify the conclusion that the witnesses could not
possibly have been present, together, at the time when it is alleged the will was
executed; but the apparent contradictions in the testimony of the witnesses in the
case at bar fall far short of raising a doubt a to their veracity, and on the other hand
their testimony as a whole gives such clear, explicit, and detailed account of all that
occurred, and is so convincing and altogether satisfactory that we have no doubt
that the trial judge who heard them testify properly accepted their testimony as
worthy of entire confidence and belief.

The contestants put upon the stand four witnesses for the purpose of proving that
at the time and on the occasion when the subscribing witnesses testified that the
will was executed, these witnesses were not in the house with the testator, and that
the alleged testator was at that time in such physical and mental condition that it
was impossible for him to have made a will. Two of these witnesses, upon crossexamination, admitted that they were not in the house at or between the hours of
four and six in the afternoon of the day on which the will is alleged to have been
made, this being the time at which the witnesses in support of the will testified that
it was executed. Of the other witnesses, one is a contestant of the will, Macario
Ubag, a brother of the testator, and the other, Canuto Sinoy, his close relative.
These witnesses swore that they were in the house of the deceased, where he was
lying ill, at or about the time when it is alleged that the will was executed, and that
at that time the alleged subscribing witnesses were not in the house, and the
alleged testator was so sick that he was unable to speak, to understand, or to make
himself understood, and that he was wholly incapacitated to make a will. But the
testimony of Macario Ubag is in our opinion wholly unworthy of credence. In
addition to his manifest interest in the result of the investigation, it clearly discloses
a fixed and settled purpose to overthrow the will at all costs, and to that end an
utter disregard of the truth, and readiness to swear to any fact which he imagined

would aid in securing his object. An admittedly genuine and authentic signature of
the deceased was introduced in evidence for comparison with the signature
attached to the will, but this witness in his anxiety to deny the genuineness of the
signature of his brother to the will, promptly and positively swore that the
admittedly genuine signature was not his brother's signature, and only corrected his
erroneous statement in response to a somewhat suggestive question by his
attorney which evidently gave him to understand that his former answer was likely
to prejudice his own cause. On cross-examination, he was forced to admit that
because his brother and his brother's wife (in those favor the will was made) were
Aglipayanos, he and his other brothers and sisters had not visited them for many
months prior to the one particular occasion as to which testified; and he admitted
further, that, although he lived near at hand, at no time thereafter did he or any of
the other members of his family visit their dying brother, and that they did not even
attend the funeral. If the testimony of this witness could be accepted as true, it
would be a remarkable coincidence indeed, that the subscribing witnesses to the
alleged will should have falsely pretended to have joined in its execution on the very
day, and at the precise hour, when this interested witness happened to pay his only
visit to his brother during his last illness, so that the testimony of this witness would
furnish conclusive evidence in support of the allegations of the contestants that the
alleged will was not executed at the time and place or in the manner and form
alleged by the subscribing witnesses. We do not think that the testimony of this
witness nor any of the other witnesses for the contestants is sufficient to raise even
a doubt as to the truth of the testimony of the subscribing witnesses as to the fact
of the execution of the will, or as to the manner and from in which it was executed.

In the course of the proceedings, an admittedly genuine signature of the deceased

was introduced in evidence, and upon a comparison of this signature with the
signature attached to the instrument in question, we are wholly of the opinion of the
trial judge, who held in this connection as follows:

No expert evidence has been adduced with regard to these two signatures, and the
presiding judge of this court does not claim to possess any special expert
knowledge in the matter of signatures; nevertheless, the court has compared these
two signatures, and does not find that any material differences exists between the
same. It is true that the signature which appears in the document offered for
authentication discloses that at the time of writing the subscriber was more
deliberate in his movements, but two facts must be acknowledge: First, that the
testator was seriously ill, and the other fact, that for some reason which is not
stated the testator was unable to see, and was a person who was not in the habit of
signing his name every day.

These facts should sufficiently explain whatever difference may exist between the
two signatures, but the court finds that the principal strokes in the two signatures
are identical.

That the testator was mentally capable of making the will is in our opinion fully
established by the testimony of the subscribing witnesses who swore positively that,
at the time of its execution, he was of sound mind and memory. It is true that their
testimony discloses the fact that he was at that time extremely ill, in an advanced
stage of tuberculosis complicated with severe intermittent attacks of asthma; that
he was too sick to rise unaided from his bed; that he needed assistance even to rise
himself to a sitting position; and that during the paroxysms of asthma to which he
was subject he could not speak; but all this evidence of physical weakness in no
wise establishes his mental incapacity or a lack of testamentary capacity, and
indeed the evidence of the subscribing witnesses as to the aid furnished them by
the testator in preparing the will, and his clear recollection of the boundaries and
physical description of the various parcels of land set out therein, taken together
with the fact that he was able to give to the person who wrote the will clear and
explicit instructions as to his desires touching the disposition of his property, is
strong evidence of his testamentary capacity.

Counsel for appellant suggests that the fact that the alleged will leaves all the
property of the testator to his widow, and wholly fails to make any provision for his
brothers or sisters, indicates a lack of testamentary capacity and undue influence;
and because of the inherent improbability that a man would make so unnatural and
unreasonable a will, they contend that this fact indirectly corroborates their
contention that the deceased never did in fact execute the will. But when it is
considered that the deceased at the time of his death had no heirs in the ascending
or descending line; that a bitter family quarrel had long separated him from his
brothers and sisters, who declined to have any relations with the testator because
he and his wife were adherents of the Aglipayano Church; and that this quarrel was
so bitter that none of his brothers or sisters, although some of them lived in the
vicinity, were present at the time of his death or attended his funeral; we think the
fact that the deceased desired to leave and did leave all of his property to his widow
and made no provision for his brothers and sisters, who themselves were grown
men and women, by no means tends to disclose either an unsound mind or the
presence of undue influence on the part of his wife, or in any wise corroborates
contestants' allegation that the will never was executed.

It has been said that "the difficulty of stating standards or tests by which to
determine the degree of mental capacity of a particular person has been
everywhere recognized, and grows out of the inherent impossibility of measuring
mental capacity, or its impairment by disease or other causes" (Greene vs. Greene,
145 III., 264, 276); and that "it is probable that no court has ever attempted to lay
down any definite rule in respect to the exact amount of mental capacity requisite
for the making of a valid will, without appreciating the difficulty of the undertaking"
(Trish vs. Newell, 62 III., 196, 203).

Between the highest degree of soundness of mind and memory which

unquestionably carries with it full testamentary capacity, and that degree of mental
aberration generally known as insanity or idiocy, there are numberless degrees of
mental capacity or incapacity, and while on one hand it has been held that "mere
weakness of mind, or partial imbecility from the disease of body, or from age, will
not render a person incapable of making a will, a weak or feeble minded person
may make a valid will, provided he has understanding memory sufficient to enable
him to know what he is about, and how or to whom he is disposing of his property"
(Lodge vs. Lodge, 2 Houst. (Del.), 418); that, "To constitute a sound and disposing
mind, it is not necessary that the mind should be unbroken or unimpaired,
unshattered by disease or otherwise" (Sloan vs. Maxwell, 3 N. J. Eq., 563); that "it
has not been understood that a testator must possess these qualities (of sound and
disposing mind and memory) in the highest degree. . . . Few indeed would be the
wills confirmed, if this is correct. Pain, sickness, debility of body, from age or
infirmity, would, according to its violence or duration, in a greater or less degree,
break in upon, weaken, or derange the mind, but the derangement must be such as
deprives him of the rational faculties common to man" (Den. vs. Vancleve, 5 N. J.
L.,680); and, that "Sound mind does not mean a perfectly balanced mind. The
question of soundness is one of degree" (Boughton vs. Knight, L. R.,3 P. & D., 64; 42
L. J. P., 25); on the other hand, it has been held that "testamentary incapacity does
not necessarily require that a person shall actually be insane or of an unsound
mind. Weakness of intellect, whether it arises from extreme old age from disease, or
great bodily infirmities or suffering, or from all these combined, may render the
testator incapable of making a valid will, providing such weakness really disqualifies
her from knowing or appreciating the nature, effects, or consequences of the act
she is engaged in" (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).

But for the purposes of this decision it is not necessary for us to attempt to lay
down a definition of testamentary capacity which will cover all possible cases which
may present themselves, because, as will be seen from what has already been said,
the testator was, at the time of making the instrument under consideration,
endowed with all the elements of mental capacity set out in the following definition

of testamentary capacity which has been frequently announced in courts of last

resort in England and the United States; and while is some cases testamentary
capacity has been held to exist in the absence of proof of some of these elements,
there can be no question that, in the absence of proof of very exceptional
circumstances, proof of the existence of all these elements in sufficient to establish
the existence of testamentary capacity.

Testamentary capacity is the capacity to comprehend the nature of the transaction

which the testator is engaged at the time, to recollect the property to be disposed
of and the person who would naturally be supposed to have claims upon the
testator, and to comprehend the manner in which the instrument will distribute his
property among the objects of his bounty.

(Cf. large array of cases cited in support of this definition in the Encyclopedia of
Law, vol. 23, p. 71, second edition.)

In our opinion, the evidence of record establishes in a strikingly conclusive manner

the execution of the instrument propounded as the last will and testament of the
deceased; that it was made in strict conformity with the requisites prescribed by
law; and that, at the time of its execution, the deceased was of sound mind and
memory, and executed the instrument of his own free will and accord.

The order probating the will should be land is hereby affirmed, with the cost of this
instance against the appellants.

JULIANA BAGTAS, plaintiffs-appellee,

vs.
ISIDRO PAGUIO, ET AL., defendants-appellants.

Salas and Kalaw for appellants.

Jose Santiago for appellee.

TRENT, J.:

This is an appeal from an order of the Court of First Instance of the Province of
Bataan, admitting to probate a document which was offered as the last will and
testament of Pioquinto Paguio y Pizarro. The will purports to have been executed in
the pueblo of Pilar, Province of Bataan, on the 19th day of April, 1908. The testator
died on the 28th of September, 1909, a year and five months following the date of
the execution of the will. The will was propounded by the executrix, Juliana Bagtas,
widow of the decedent, and the opponents are a son and several grandchildren by a
former marriage, the latter being the children of a deceased daughter.

The basis of the opposition to the probation of the will is that the same was not
executed according to the formalities and requirements of the law touching wills,
and further that the testator was not in the full of enjoyment and use of his mental
faculties and was without the mental capacity necessary to execute a valid will.

The record shows that the testator, Pioquinto Paguio, for some fourteen of fifteen
years prior to the time of his death suffered from a paralysis of the left side of his
body; that a few years prior to his death his hearing became impaired and that he
lost the power of speech. Owing to the paralysis of certain muscles his head fell to
one side, and saliva ran from his mouth. He retained the use of his right hand,
however, and was able to write fairly well. Through the medium of signs he was able
to indicate his wishes to his wife and to other members of his family.

At the time of the execution of the will there were present the four testamentary
witnesses, Agustin Paguio, Anacleto Paguio, and Pedro Paguio, and attorney, Seor
Marco, and one Florentino Ramos. Anacleto Paguio and the attorney have since
died, and consequently their testimony was not available upon the trial of the case
in the lower court. The other three testamentary witnesses and the witness
Florentino Ramos testified as to the manner in which the will was executed.
According to the uncontroverted testimony of these witnesses the will was executed
in the following manner:

Pioquinto Paguio, the testator, wrote out on pieces of paper notes and items relating
to the disposition of his property, and these notes were in turn delivered to Seor
Marco, who transcribed them and put them in form. The witnesses testify that the
pieces of paper upon which the notes were written are delivered to attorney by the
testator; that the attorney read them to the testator asking if they were his
testamentary dispositions; that the testator assented each time with an affirmative
movement of his head; that after the will as a whole had been thus written by the
attorney, it was read in a loud voice in the presence of the testator and the
witnesses; that Seor Marco gave the document to the testator; that the latter, after
looking over it, signed it in the presence of the four subscribing witnesses; and that
they in turn signed it in the presence of the testator and each other.

These are the facts of record with reference to the execution of the will and we are
in perfect accord with the judgment of the lower court that the formalities of the
Code of Civil Procedure have been fully complied with.

This brings us now to a consideration of appellants' second assignment of error, viz,

the testator's alleged mental incapacity at the time of the execution of the will.
Upon this point considerable evidence was adduced at the trial. One of the attesting
witnesses testified that at the time of the execution of the will the testator was in
his right mind, and that although he was seriously ill, he indicated by movements of
his head what his wishes were. Another of the attesting witnesses stated that he
was not able to say whether decedent had the full use of his mental faculties or not,
because he had been ill for some years, and that he (the witnesses) was not a
physician. The other subscribing witness, Pedro Paguio, testified in the lower court
as a witness for the opponents. He was unable to state whether or not the will was
the wish of the testator. The only reasons he gave for his statement were the
infirmity and advanced age of the testator and the fact that he was unable to speak.
The witness stated that the testator signed the will, and he verified his own
signature as a subscribing witness.

Florentino Ramos, although not an attesting witness, stated that he was present
when the will was executed and his testimony was cumulative in corroboration of
the manner in which the will was executed and as to the fact that the testator
signed the will. This witness also stated that he had frequently transacted matters
of business for the decedent and had written letters and made inventories of his
property at his request, and that immediately before and after the execution of the
will he had performed offices of his character. He stated that the decedent was able
to communicate his thoughts by writing. The testimony of this witness clearly
indicates the presence of mental capacity on the part of the testator. Among other
witnesses for the opponents were two physician, Doctor Basa and Doctor Viado.
Doctor Basa testified that he had attended the testator some four or five years prior
to his death and that the latter had suffered from a cerebral congestion from which
the paralysis resulted. The following question was propounded to Doctor Basa:

Q.
Referring to mental condition in which you found him the last time you
attended him, do you think he was in his right mind?

A.
I can not say exactly whether he was in his right mind, but I noted some
mental disorder, because when I spoke to him he did not answer me.

Doctor Basa testified at more length, but the substance of his testimony is that the
testator had suffered a paralysis and that he had noticed some mental disorder. He
does not say that the testator was not in his right mind at the time of the execution
of the will, nor does he give it at his opinion that he was without the necessary
mental capacity to make a valid will. He did not state in what way this mental
disorder had manifested itself other than that he had noticed that the testator did
not reply to him on one occasion when he visited him.

Doctor Viado, the other physician, have never seen the testator, but his answer was
in reply to a hypothetical question as to what be the mental condition of a person
who was 79 years old and who had suffered from a malady such as the testator was
supposed to have had according to the testimony of Doctor Basa, whose testimony
Doctor Viado had heard. He replied and discussed at some length the symptoms
and consequences of the decease from which the testator had suffered; he read in
support of his statements from a work by a German Physician, Dr. Herman Eichost.
In answer, however, to a direct question, he stated that he would be unable to
certify to the mental condition of a person who was suffering from such a disease.

We do not think that the testimony of these two physicians in any way strengthens
the contention of the appellants. Their testimony only confirms the fact that the
testator had been for a number of years prior to his death afflicted with paralysis, in
consequence of which his physician and mental strength was greatly impaired.
Neither of them attempted to state what was the mental condition of the testator at
the time he executed the will in question. There can be no doubt that the testator's
infirmities were of a very serious character, and it is quite evident that his mind was
not as active as it had been in the earlier years of his life. However, we can not
include from this that he wanting in the necessary mental capacity to dispose of his
property by will.

The courts have been called upon frequently to nullify wills executed under such
circumstances, but the weight of the authority is in support if the principle that it is
only when those seeking to overthrow the will have clearly established the charge
of mental incapacity that the courts will intervene to set aside a testamentary
document of this character. In the case of Bugnao vs. Ubag (14 Phil. Rep., 163), the
question of testamentary capacity was discussed by this court. The numerous
citations there given from the decisions of the United States courts are especially
applicable to the case at bar and have our approval. In this jurisdiction the
presumption of law is in favor of the mental capacity of the testator and the burden
is upon the contestants of the will to prove the lack of testamentary capacity. (In the
matter of the will of Cabigting, 14 Phil. Rep., 463; in the matter of the will of Butalid,
10 Phil. Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep., 689.)

The rule of law relating to the presumption of mental soundness is well established,
and the testator in the case at bar never having been adjudged insane by a court of
competent jurisdiction, this presumption continues, and it is therefore incumbent
upon the opponents to overcome this legal presumption by proper evidence. This
we think they have failed to do. There are many cases and authorities which we
might cite to show that the courts have repeatedly held that mere weakness of
mind and body, induced by age and disease do not render a person incapable of
making a will. The law does not require that a person shall continue in the full
enjoyment and use of his pristine physical and mental powers in order to execute a
valid will. If such were the legal standard, few indeed would be the number of wills
that could meet such exacting requirements. The authorities, both medical and
legal, are universal in statement that the question of mental capacity is one of
degree, and that there are many gradations from the highest degree of mental
soundness to the lowest conditions of diseased mentality which are denominated as
insanity and idiocy.

The right to dispose of property by testamentary disposition is as sacred as any

other right which a person may exercise and this right should not be nullified unless
mental incapacity is established in a positive and conclusive manner. In discussing
the question of testamentary capacity, it is stated in volume 28, 70, of the American
and English Encyclopedia of Law, that

Contrary to the very prevalent lay impression, perfect soundness of mind is not
essential to testamentary capacity. A testator may be afflicted with a variety of
mental weaknesses, disorders, or peculiarities and still be capable in law of
executing a valid will. (See the numerous cases there cited in support of this
statement.)

The rule relating to testamentary capacity is stated in Buswell on Insanity, section

365, and quoted with approval in Campbell vs. Campbell (130 Ill., 466), as follows:

To constitute a sound and disposing mind, it is not necessary that the mind shall be
wholly unbroken, unimpaired, or unshattered by disease or otherwise, or that the
testator should be in the full possession of his reasoning faculties.

In note, 1 Jarman on Wills, 38, the rule is thus stated:

The question is not so much, that was the degree of memory possessed by the
testator, as, had he a disposing memory? Was he able to remember the property he
was about to bequeath, the manner of disturbing it, and the objects of his bounty?
In a word, were his mind and memory sufficiently sound to enable him to know and
understand the business in which he was engaged at the time when he executed his
will. (See authorities there cited.)

In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of
the case: The testator died at the age of nearly 102 years. In his early years he was
an intelligent and well informed man. About seven years prior to his death he
suffered a paralytic stroke and from that time his mind and memory were mush
enfeebled. He became very dull of hearing and in consequence of the shrinking of
his brain he was affected with senile cataract causing total blindness. He became

filthy and obscene in his habits, although formerly he was observant of the
properties of life. The court, in commenting upon the case, said:

Neither age, nor sickness, nor extreme distress, nor debility of body will affect the
capacity to make a will, if sufficient intelligence remains. The failure of memory is
not sufficient to create the incapacity, unless it be total, or extend to his immediate
family or property. . . .

xxx

xxx

xxx

Dougal (the testator) had lived over one hundred years before he made the will, and
his physical and mental weakness and defective memory were in striking contrast
with their strength in the meridian of his life. He was blind; not deaf, but hearing
impaired; his mind acted slowly, he was forgetful or recent events, especially of
names, and repeated questions in conversation; and sometimes, when aroused for
sleep or slumber, would seem bewildered. It is not singular that some of those who
had known him when he was remarkable for vigor and intelligence, are of the
opinion that his reason was so far gone that he was incapable of making a will,
although they never heard him utter an irrational expression.

In the above case the will was sustained. In the case at bar we might draw the same
contrast as was pictured by the court in the case just quoted. The striking change in
the physical and mental vigor of the testator during the last years of his life may
have led some of those who knew him in his earlier days to entertain doubts as to
his mental capacity to make a will, yet we think that the statements of the
witnesses to the execution of the will and statements of the conduct of the testator
at that time all indicate that he unquestionably had mental capacity and that he
exercised it on this occasion. At the time of the execution of the will it does not
appear that his conduct was irrational in any particular. He seems to have
comprehended clearly what the nature of the business was in which he was
engaged. The evidence show that the writing and execution of the will occupied a
period several hours and that the testator was present during all this time, taking an
active part in all the proceedings. Again, the will in the case at bar is perfectly
reasonable and its dispositions are those of a rational person.

For the reasons above stated, the order probating the will should be and the same is
hereby affirmed, with costs of this instance against the appellants.

SANTIAGO GALVEZ, petitioner-appellant,

vs.
CANUTA GALVEZ, opponent-appellee.

Eugenio Paguia, for appellant.

Antonio Constantino, for appellee.

TORRES, J.:

This appeal was raised by counsel for Santiago Galvez from the judgment of
October 25, 1910, whereby the Honorable Simplicio del Rosario, judge, denied the
petition presented by the said Galvez for the probate of the will, Exhibit B, and
appointed as administratrix of the testator's estate, the latter's only legitimate
daughter, Canuta Galvez, under condition that she furnish bond in the sum of
P2,000 for the faithful discharge of the duties of her office.

Counsel for Santiago Galvez petitioned the Court of First Intance of Bulacan for the
probate of the will which it was alleged Victor Galvez executed in the dialect of the

province, on August 12, 1910, in presence of the witnesses Juan Dimanlig, J.

Leoquinco, and Nazaria Galvez. This instrument appears also to have been signed
by the witness Lorenzo Galvez, below the name and surname of the testator. (p. 3,
B. of E., translated into Spanish on p. 5.)

Further on in the same record, pages 6 to 7, there appears another will written in
Tagalog and executed on the same date by Victor Galvez in presence of the
witnesses Cirilo Paguia, Florentino Sison, and Juan Menodoza.

In the course of the proceedings various witnesses were examined by the petitioner
and by the respondent, Canuta Galvez, the only daughter of the alleged testator,
and the attorney Antonio Constantino stated that he waived the right to present
evidence and acquiesced in the petition made by Santiago Galvez for the probate of
the will, in view of a transaction entered into by the parties; but the court did not
accept the compromise, on the ground that it is improper to hold that a will is the
faithful expression of the last wishes of a decedent, upon the mere fact of the
parties' petitioning to that effect, when such will, as in the case at bar, was assailed
at the commencement of the suit.

After due trial the judgment aforementioned was rendered, from which an appeal
was entered by counsel for the petitioner, Santiago Galvez.

This case deals with the probate of the second will executed by Victor Galvez on
August 12, 1910, and signed in his presence by the witness Juan Dimanlig, Nazaria
Galvez and J. Leoquinco, and, as the testator was no longer able to sign on account
of his sickness, Lorenzo Galvez, at his request, affixed his own signature to the
instrument, for him and below his written name. This will, written in Tagalog and
translated into Spanish, is marked as Exhibit B and is found on pages 3 and 5 of the
bill of exceptions.

The other will, written in Tagalog and marked Exhibit A, was presented during the
proceedings; it was the first one the testator executed on the same date, and, for
the purpose of correcting an error contained in this first will, he executed another
will, the second, which is the one exhibited for probate.

Notwithstanding the opposition by Canuta Galvez, the testator's daughter, who

alleged that her father, owing to his very serious sickness with cholera, lacked the
intellectual capacity and clear judgment requisite for making a will, and
notwithstanding her testimony adduced in corroboration of her brief, the record
sufficiently proved the contrary; the subscribing witnesses to the will affirmed under
oath that they were present when Victor Galvez, then sick in his house, stated to
them that the document read before them by Lorenzo Galvez contained his last will
and testament, and that, as the testator was no longer able to sign, he charged his
nephew Lorenzo to do so in his stead, which he latter did by affixing his own
signature to the document, after having written at the foot of the same the name
and surname of the testator, Victor Galvez, who as these witnesses observed, was
of sound mind and in the full enjoyment of his mental faculties; he talked
intelligently and with perfect knowledge of what was taking place. They further
testified that they all, including the said Lorenzo Galvez, signed the will in the
presence of the testator, Victor Galvez, who was at the time lying on his bed.

In order to hold that Victor Galvez, on account of serious sickness, was not then of
sound mind and did not have full knowledge of his acts and, therefore, was
incapable to execute a will, it is necessary that the proceedings disclose conclusive
proof of his mental incapacity and of his evident lack of reason and judgment at the
time he executed his will in the presence of the witnesses whose signatures appear
at the foot thereof, for these witnesses capacity positively affirmed that Victor
Galvez, on executing his will showed that he was in full possession of his intellectual
faculties and was perfectly cognizant of his acts.

The physician Dr. Vicente de Jesus, in his testimony, referred to the effects and
results of cholera on a patient in ordinary cases and in the regular course of this
disease; but his statements, taken in general, cannot, in the present suit, served as
a ground upon which to predicate incapacity, for the reason that he did not examine
Victor Galvez, nor did he even see him between the hours of 12 in the morning and
3 in the afternoon of the 12th of August, 1910, during which period the testator
ordered his will drawn up and the attesting witnesses signed it, Galvez having died
at about 6 o'clock that same afternoon. It may be true that cholera patients do, in
the majority of cases, become incapacitated in the manner described by the
witness; but there may be exceptions to the general rule, and to judge from the
testimony of the witnesses who saw and communicated with the patient Victor
Galvez at the time he executed his will, his physical and mental condition must have
been an exception, since he demonstrated that he had sufficient energy and clear
intelligence to execute his last will in accordance with the requirements of the law.

Besides the attestation of the aforesaid subscribing witnesses, the contents of the
will and the testator's positive determination to rectify the error he incurred in the
execution of his first will, show that Victor Galvez was in his sound mind and was
perfectly aware of his duties in respect to the legal, inviolable rights of his daughter
and sole heir, Canuta Galvez.

Inasmuch as, in the drafting and execution of the second will (Exhibit B), signed in
the name of the testator by Lorenzo Galvez and the witnesses Juan Dimanlig,
Nazaria Galvez, and J. Leoquinco, the formalities prescribed by section 618 of the
Code of Civil Procedure were observed, for the testator's name appears written at
the foot of the will and under this name Lorenzo Galvez signed by direction of the
testator himself, and the instrument was also signed by the attesting witnesses
before mentioned who affirmed that they heard and attested the dispositions made
by the testator and witnessed the reading of the will, that they were present when
the said Lorenzo Galvez signed the will in the name of the testator and that they
signed it in the presence of all the persons assembled in the latter's house, the
conclusion is inevitable that Victor Galvez, in executing his will, did so with a sound
mind and the full use of his mental faculties; therefore, the will must be admitted to
probate.

For the foregoing reasons, with a reversal of the judgment appealed from in so far
as it denies the probate of the said will, we hereby hold that the same was duly
executed by Victor Galvez and expresses his last wishes, and we affirm the rest of
the said judgment, with respect to the appointment, as administratrix, of Canuta
Galvez, the testator's daughter and sole heir.

SERAPIA DE GALA, petitioner-appellant,

vs.
APOLINARIO GONZALES and SINFOROSO ONA, opponents-appellants.

Sumulong, Lavides & Hilado for petitioner-appellant.

Godofredo Reyes for opponent-appellant Gonzales.

Ramon Diokno for opponent-appellant Ona.

OSTRAND, J.:

On November 23, 1920, Severina Gonzales executed a will in which Serapia de Gala,
a niece of Severina, was designated executrix. The testatrix died in November,
1926, leaving no heirs by force of law, and on December 2, 1926, Serapia, through
her counsel, presented the will for probate. Apolinario Gonzales, a nephew of the
deceased, filed an opposition to the will on the ground that it had not been
executed in conformity with the provisions of section 618 of the Code of Civil
Procedure. On April 2, 1927, Serapia de Gala was appointed special administratrix of
the estate of the deceased. She returned an inventory of the estate on March 31,
1927, and made several demands upon Sinforoso Ona, the surviving husband of the
deceased, for the delivery to her of the property inventoried and of which he was in
possession.

On September 20, 1928, the Court of First Instance ordered Sinforoso Ona to deliver
to Serapia de Gala all the property left by the deceased. Instead of delivering the
property as ordered, Sinforoso filed a motion asking the appointment of Serapia de
Gala as special administratrix be cancelled and that he, Sinforoso, be appointed in
her stead. The motion was opposed by both Apolinario Gonzales and by Serapia de
Gala, but on March 3, 1928, it was nevertheless granted, Serapia was removed, and
Sinforoso was appointed special administrator in her place, principally on the
ground that he had possession of the property in question and that his appointment
would simplify the proceedings.

In the meantime and after various continuances and delays, the court below in an
order dated January 20, 1928, declared the will valid and admitted it to probate. All
of the parties appealed, Serapia de Gala from the order removing her from the
office of special administratrix, and Apolinario Gonzales and Sinforoso Ona from the
order probating the will.

Serapia's appeal requires but little discussion. The burden of the argument of her
counsel is that a special administrator cannot be removed except for one or more of
the causes stated in section 653 of the Code of Civil Procedure. But that section can

only apply to executors and regular administrators, and the office of a special
administrator is quite different from that of regular administrator. The appointment
of a special administrator lies entirely in the sound discretion of the court; the
function of such an administrator is only to collect and preserve the property of the
deceased and to return an inventory thereof; he cannot be sued by a creditor and
cannot pay any debts of the deceased. The fact that no appeal can be taken from
the appointment of a special administrator indicates that both his appointment and
his removal are purely discretionary, and we cannot find that the court below
abused its discretion in the present case. In removing Serapia de Gala and
appointing the present possessor of the property pending the final determination of
the validity of the will, the court probably prevented useless litigation.

The appellants Sinforoso Ona and Apolinario Gonzales argue that the will in question
was not executed in the form prescribed by section 618 of the Code of Civil
Procedure as amended by Act No. 2645. That section reads as follows:

No will, except as provided in the preceding section, shall be valid to pass any
estate, real or personal, nor charge or affect the same, unless it be written in the
language or dialect known by the testator and signed by him, or by the testator's
name written by some other person in his presence, and by his express direction,
and attested and subscribed by three or more credible witnesses in the presence of
the testator and of each other. The testator or the person requested by him to write
his name and the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, on the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each sheet. The attestation shall
state the number of sheets or pages used, upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.

The principal points raised by the appeal are (1) that the person requested to sign
the name of the testatrix signed only the latter's name and not her own; (2) that the
attestation clause does not mention the placing of the thumb-mark of the testatrix
in the will; and (3) that the fact that the will had been signed in the presence of the
witnesses was not stated in the attestation clause but only in the last paragraph of
the body of the will.

The first point can best be answered by quoting the language of this court in the
case of the Estate of Maria Salva, G. R. No. 26881:1

An examination of the will in question disclosed that it contains five pages. The
name of the old woman, Maria Salva, was written on the left hand margin of the first
four pages and at the end of the will. About in the center of her name she placed
her thumb-mark. About in the center of her name she placed her thumb-mark. The
three witnesses likewise signed on the left-hand margin and at the end of the will.

On these facts, the theory of the trial judge was that under the provisions of section
618 of the Code of Civil Procedure, as amended by Act No. 2645, it was essential to
the validity of the will that the person writing the name of the maker of the will also
sign. Under the law prior to the amendment, it had been held by this court that
where a testator is unable to write and his name is signed by another at his request,
in his presence and in that of the subscribing witnesses thereto, it is unimportant,
so far as the validity of the will is concerned, whether the person who writes the
name of the testator signs his own or not. (Barut vs. Cabacungan (1912), 21 Phil.,
461). But his Honor, the trial judge emphasizes that the amendment introduced into
the law the following sentence: 'The testator or the person requested by him to
write his name and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, on the left margin . . ..' This requirement, it
is said, was not lived up to in this instance.

There is, however, an entirely different view which can be taken of the situation.
This is that the testatrix placed her thumb-mark on the will in the proper places.
When, therefore, the law says that the will shall be 'signed' by the testator or
testatrix, the law is fulfilled not only by the customary written signature but by the
testator or testatrix' thumb-mark. The construction put upon the word 'signed' by
most courts is the original meaning of a signum or sign, rather than the derivative
meaning of a sign manual or handwriting. A statute requiring a will to be 'signed' is
satisfied if the signature is made by the testator's mark. (28 R. C. L., pp. 116-117).

The opinion quoted is exactly in point. The testatrix thumb-mark appears in the
center of her name as written by Serapia de Gala on all of the pages of the will.

The second and third points raised by Sinforoso Ona and Apolinario Gonzales are
sufficiently refuted by quoting the last clause of the body of the will together with

the attestation clause, both of which are written in the Tagalog dialect. These
clauses read as follows:

Sa katunayang ang kasulatang ito, na may anim na dahon, ay siyang naglalaman ng

aking huling tagubilin, at sa hindi ko kaalamang lumagda ng aking pangalan,
ipinamanhik ko sa aking pamankin na si Serapia de Gala na isulat ang aking
pangalan at apellido, at sa tapat ay inilagda ko ang titik ng kanang daliri kong
hinlalaki, sa walkas at sa bawat isa sa anim (6) na dahon ng kasulatang ito, at ito's
ginawa niya sa kautusan at sa harap ko at ng tatlong saksing nagpapatutuo sa huli
ngayon ika dalawang po't tatlo ng Nobiembre ng 1920.

(Sgd.) SEVERINA GONZALES

Pinatutunayan namin na ang kasulatang ito na binubuo ng anim (6) na dahon na

pinirmahan sa harap namin ni Serapia de Gala sa kahilingan ni Severina Gonzales sa
wakas at sa mga gilid ng bawa't isa sa anim (6) na dahon at isinaysay na ang
kasulatang ito ay siyang huling habilin o testamento ni Severina Gonzales, ay
pinirmahan namin, bilang mga saksi sa wakas at sa gilid ng bawa't dahon sa harap
at sa kahilingan ng tinurang testadora, at ang bawat isa sa amin ay pumirma sa
harap ng lahat at bawat isa sa amin, ngayon ika dalawang po't tatlo ng noviembre
ng taong 1920 ng taong 1920.

(Sgd.) ELEUTERIO NATIVIDAD

JUAN SUMULONG
FRANCISCO NATIVIDAD

The translation in English of the clauses quoted reads as follows:

In virtue of this will, consisting of six pages, that contains my last wish, and because
of the fact that I cannot sign my name, I request my niece Serapia de Gala to write
my name, and above this I placed my right thumb-mark at the end of this will and to
each of the six pages of this document, and this was done at my direction and in the
presence of three attesting witnesses, this 23rd of November, 1920.

(Sgd.) SEVERINA GONZALES

We certify that this document, which is composed of six (6) sheets and was signed
in our presence by Serapia de Gala at the request of Severina Gonzales at the end
and on the margins of each of the six (6) sheets and was declared to contain the
last will and testament of Severina Gonzales, was signed by us as witnesses at the
end and on the margins of each sheet in the presence and at the request of said
testatrix, and each of us signed in the presence of all and each of us, this 23rd day
of November of the year 1920.

(Sgd.) ELEUTERIO NATIVIDAD

JUAN SUMULONG
FRANCISCO NATIVIDAD

As will be seen, it is not mentioned in the attestation clause that the testatrix signed
by thumb-mark, but it does there appear that the signature was affixed in the
presence of the witnesses, and the form of the signature is sufficiently described
and explained in the last clause of the body of the will. It maybe conceded that the
attestation clause is not artistically drawn and that, standing alone, it does not quite
meet the requirements of the statute, but taken in connection with the last clause of
the body of the will, it is fairly clear and sufficiently carries out the legislative intent;
it leaves no possible doubt as to the authenticity of the document.

The contention of the appellants Sinforoso Ona and Apolinario Gonzales that the
fact that the will had been signed in the presence of the witnesses was not stated in
the attestation clause is without merit; the fact is expressly stated in that clause.

In our opinion, the will is valid, and the orders appealed from are hereby affirmed
without costs. So ordered.

G.R. No. 33365, Dolar v. Diancin et al., 55 Phil. 479

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

December 20, 1930

G.R. No. 33365

Estate of the deceased Paulino Diancin. TEOPISTA DOLAR, proponent-appellant,
vs.
FIDEL DIANCIN, ET AL., oppositors-appellees.

Montinola, Montinola and Hilado for appellant.

Lopez Vito and Lopez Vito for appellees.

MALCOLM, J.:

The will of the deceased Paulino Diancin was denied probate in the Court of First
Instance of Iloilo on the sole ground that the thumbmarks appearing thereon were
not the thumbmarks of the testator. Disregarding the other errors assigned by the
proponent of the will, we would direct attention to the third error which challenges
squarely the correctness of this finding.

The will in question is alleged to have been executed by Paulino Diancin at

Dumangas, Iloilo, on November 13, 1927. A thumbmark appears at the end of the
will and on the left hand margin of each of its pages in the following manner:
"Paulino Diancin, Su Signo, Por Pedro Diamante." The witnesses to the will were the
same Pedro Diamante, Inocentes Deocampo, and Juan Dominado. The will is
detailed in nature, and disposes of an estate amounting approximately to P50,000.

For comparative purposes, Exhibit 8, a document of sale containing an admittedly

genuine thumbmark of Paulino Diancin, was presented. Photographs of the
thumbmarks on the will and of the thumbmark on Exhibit 8 were also offered in
evidence. One, Carlos J. Jaena, attempted to qualify as an "expert," and thereafter
gave as his opinion that the thumbmarks had not been made by the same person
.One, Jose G. Villanueva, likewise attempted to qualify as were authentic. The
petition of the proponent of the will to permit the will to be sent to Manila to be
examined by an expert was denied. On one fact only were the opposing witnesses
agreed, and this was that the ink used to make the thumbmarks on the will was of
the ordinary type which blurred the characteristics of the marks, whereas the
thumbmark on Exhibit 8 was formed clearly by the use of the special ink required
for this purpose. The trial judge expressed his personal view as being that great
differences existed between the questioned marks and the genuine mar.

The requirement of the statute that the will shall be "signed" is satisfied not only the
customary written signature but also by the testator's or testatrix' thumbmark
.Expert testimony as to the identity of thumbmarks or fingerprints is of course
admissible. The method of identification of fingerprints is a science requiring close
study .Where thumb impressions are blurred and many of the characteristic marks
far from clear, thus rendering it difficult to trace the features enumerated by
experts as showing the identity or lack of identity of the impressions, the court is
justified in refusing to accept the opinions of alleged experts and in substituting its
own opinion that a distinct similarity in some respects between the admittedly
genuine thumbmark and the questioned thumbmarks, is evident .This we do here.
(Emperor vs. Abdul Hamid [1905], 32 Indian L. Rep., 759, cited in 3 Chamberlayne
on the Modern Law of Evidence, sec. 2561, notes 3.)

There is another means of approach to the question and an obvious one. The three
instrumental witnesses united in testifying concerning the circumstances
surrounding the execution of the will. It was stated that in addition to the testator
and themselves, on other person, Diosdado Dominado, was present. This latter
individual was called as a witness by the oppositors to the will to identify Exhibit 8.
He was later placed on the witness stand by the proponent on rebuttal, and

thereupon declared positively that he was the one who prepared the will for the
signature of Paulino Diancin; that the thumbmarks appearing on the will were those
of Paulino Diancin, and that he saw Paulino Diancin make these impressions. The
testimony of a witness called by both parties is worthy of credit.

We reach the very definite conclusion that the document presented for probate as
the last will of the deceased Paulino Diancin was, in truth, his will, and that the
thumbmarks appearing thereon were the thumbmarks of the testator .Accordingly,
error is found, which means that the judgment appealed from must be, as it is
hereby, reversed, and the will ordered admitted to probate, without special finding
as to costs in this instance.