89858049 Succession Digests Part 1a

8/12/2019 89858049 Succession Digests Part 1a

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SUCCESSION A2010 page 1

NERI v AKUTIN74 PHIL 185

MORAN; May 21, 1943

NATUREPetition for review on certiorari

FACTS- Testator Neri indicated in his will that he was leaving all of his properties by universal title to his children by his secondmarriage with preterition of his children by his first marriage.- Eleuterio, Agripino, Agapita, Getulia, Rosario and Celerina are all Neris children by his first marriage. - The trial court annulled the institution of the heirs and declared total intestacy.- The children by the second marriage filed a motion for reconsideration on the grounds that:1) there is no preterition as to the children of the first marriage have received their shares in the property left by thetestator2) assuming that there has been a preterition, the effect would not be the annulment of the institution of heirs but simplythe reduction of the bequest made to them.- The children by the second marriage anchor their argument on the concept of heir whose A814 definition is deemedrepealed by that of the Code of Civil Procedure. It is maintained that the word "heredero" under the Civil Code, is notsynonymous with the term "heir" under the Code of Civil Procedure, and that the "heir" under the latter Code is nolonger personally liable for the debts of the deceased as was the "heredero" under the Civil Code

ISSUES1. WON there is preterition 2. WON there should be annulment of the institution of the heirs and open the estate to total intestacy

HELD1. YES, there is preterition-According to the courts findings, none of the children by the first marriage received their respective shares from thetestators property- Even if clause 8 of the will is invoked (said clause states that the children by his first marriage had already receivedtheir shares in his property excluding what he had given them as aid during their financial troubles and the money theyhad borrowed from him) the Court can rely only on the findings of the trial court that the inventory indicates that theproperty of Neri has remained intact and that no portion has been given to the children of the first marriage.- Neri left his property by universal title to the children by his second marriage and did not expressly disinherit hischildren by his first marriage but did not leave anything to them. This fits the case of preterition according to A814, CCwhich provides that the institution of heirs shall be annulled and intestate succession should be declared open.2. YES- The word "heir" as used in A814 of the Civil Code may not have the meaning that it has under the Code of CivilProcedure, but this does prevent a bequest from being made by universal title as is in substance the subject-matter ofA814 of the Civil Code.- It may also be true that heirs under the Code of Civil Procedure may receive the bequest only after payment of debtsleft by the deceased and not before as under the Civil Code, but this may have a bearing only upon the question as towhen succession becomes effective and can in no way destroy the fact that succession may still be by universal orspecial title.- Since a bequest may still be made by universal title and with preterition of forced heirs, its nullity as provided in article814 still applies there being nothing inconsistent with it in the Code of Civil Procedure. The basis for its nullity is thenature and effect of the bequest and not its possible name under the Code of Civil Procedure.- In addition, Secs. 755 and 756 of the Code of Civil Procedure affected A814 and A851 of the Civil Code. But thesesections have been expressly repealed by Act No. 2141, thus restoring force to A814 and A851.

OZAETA [concur]

- Whether or not there was preterition of the testator's surviving children by his first marriage, may not be entirely beyonddispute, because it is not altogether improbable that, before the testator made his will said children of his had received

cash advances from him. But, to my mind, there can be no doubt that there was preterition of the testator'sgrandchildren by his daughter Getulia, who died long before the testator made his will. These lineal descendants of thetestator, who are also forced heirs of his, were completely ignored and omitted in the will.- In the absence of proof it cannot be presumed that the testator made the declarations in bad faith - that he made themknowing that it was not true that he had given each of his surviving children by his first wife at least an equal if not agreater share in his inheritance than what he left to each of his children by his second wife.- But if he had made those declarations in bad faith or as a subterfuge to deprive his children and grandchildren by his

first marriage of their legal share in his inheritance, he could only have done so with the intention to frustrate their right.In that case the preterition would only assume a different form, voluntary instead of involuntary. But the result would bethe same.

BOCOBO [dissent]- There is no preterition because the findings of both the Court of First Instance and of the Court of Appeals show that allthe children of the first marriage have received, in property and in cash, a part of their short legitime. One of therequisites of preterition is that one or some of the heirs of the direct line be totally deprived of their legitime.- The children of the first marriage not having been entirely forgotten, the will should be respected and carried out, butthe children of the first marriage should have their respective shares in the strict legitime completed after taking intoaccount the amounts already received by them from their father.- But granting that there was a preterition because one or some of the children of the first marriage never received, bydonation inter vivos or by will, anything from their father, it is clear from the will in question that the children of thesecond marriage are entitled to the third for free disposal and to the third for mejora (in addition to their share in the strictlegitime.

- "Anular la institucin de heredero" does not mean that the whole will is of no effect. It merely nullifies the clausedesignating the children of the second marriage. As the only "herederos" or continuers of the testator's personality andin the place of such clause, article 814 orders that all the children, of both marriages, shall be such continuers of Neri'spersonality. This does not mean that all the children shall divide the whole estate equally, by the rules of intestacy. Itsimply signifies that the children of both marriages become continuers of Neri's personality, and as such liablepersonally for all of Neri's obligations, so that, under the system of the Spanish Civil Code, which distinguishes"herederos" from "legatarios," all the children are liable personally for the debts of their father, even beyond and inexcess of the property received by each of them.

ALVAREZ v IAC (YANES)185 SCRA 8

FERNAN; May 7, 1990


FACTS- Two parcels of land were registered in the names of the heirs of Aniceto Yanes, under an Original Certificate of Title.- Fortunato D. Santiago was issued a Transfer Certificate of Title. Santiago then sold the lots to Monico B. Fuentebella,Jr. The lots were sold thereafter Rosendo Alvarez.- The Yaneses filed a complaint against Santiago, Arsenia Vda. de Fuentebella, Alvarez and the Register of Deeds ofNegros Occidental for the "return" of the ownership and possession of the lots, and prayed for an accounting of theproduce of the land from 1944 up to the filing of the complaint, and that the share or money equivalent due the heirs bedelivered to them, and damages.- During the pendency of the case, Alvarez sold the lots to Dr. Rodolfo Siason.- The CFI ordered Alvarez to reconvey and deliver the possession of the lots to the Yaneses. However, execution ofsaid decision proved unsuccessful with respect to one of the lots, as it had been subdivided into two and that that theywere "in the name" of Rodolfo Siason who had purchased them from Alvarez, and that the lot could not be delivered tothe plaintiffs as Siason was "not a party per writ of execution."- The Yaneses filed a petition for the issuance of a new certificate of title and for a declaration of nullity of the TCTs

issued to Rosendo Alvarez.The court required Rodolfo Siason to produce the certificates of title covering the lots, whichorder was later nullified by the court in view of a manifestation filed by Siason.


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- the lower court found Siason as a buyer in good faith, and ordered the heirs of Alvarez to pay the Yaneses the actualvalue of the lots, plus damages. The IAC affirmed except as to damages.- Petitioners contend, among others, that the liability arising from the sale of the lots made by Rosendo Alvarez to Dr.Rodolfo Siason should be the sole liability of the late Rosendo Alvarez or of his estate, after his death.

ISSUEWON the liability arising from the sale of the lots made by Rosendo Alvarez to Dr. Rodolfo Siason should be the sole

liability of the late Rosendo Alvarez or of his estate, after his death.

HELDNO.- It overlooks the doctrine obtaining in this jurisdiction on the general transmissibility of the rights and obligations of thedeceased to his legitimate children and heirs. Under our law, the general rule is that a party's contractual rights andobligations are transmissible to the successors.- The pertinent provisions of the Civil Code state:Art. 774.Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of thevalue of the inheritance, of a person are transmitted through his death to another or others either by his will or byoperation of law.Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by hisdeath.Art. 1311. Contract stake effect only between the parties, their assigns and heirs except in case where the rights andobligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The

heir is not liable beyond the value of the property received from the decedent.- Estate of Hemady vs. Luzon Surety Co., Inc.: The binding effect of contracts upon the heirs of the deceased party isnot altered by the provision of our Rules of Court that money debts of a deceased must be liquidated and paid from hisestate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus madefrom the state is ultimately a payment by the heirs or distributees, since the amount of the paid claim in fact diminishesor reduces the shares that the heirs would have been entitled to receive.- The general rule (above) is a consequence of the progressive "depersonalization" of patrimonial rights and duties that,as observed by Victorio Polacco, has characterized the hi story of these institutions. From the Roman concept of arelation from person to person, the obligation has evolved into a relation from patrimony to patrimony with the personsoccupying only a representative position, barring those rare cases where the obligation is strictly personal, i.e., iscontracted intuitu personae, in consideration of its performance by a specific person and by no other.- Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape the legal consequences of their father'stransaction, which gave rise to the present claim for damages. That petitioners did not inherit the property involved is ofno moment because by legal fiction, the monetary equivalent thereof devolved into the mass of their father's hereditaryestate, and hereditary assets are always liable in their totality for the payment of the debts of the estate.It must,

however, be made clear that petitioners are liable only to the extent of the value of their inheritance.

VITUG v CA (ROWENA FAUSTINO-CORONA)183 SCRA 755

SARMIENTO; March 29, 1990

NATUREThis case is a chapter in an earlier suit involving the probate of the two wills of the late Dolores Luchangco Vitug namingprivate respondent Rowena Faustino-Corona executrix. In that case, the appointment of Nenita Alonte as co-specialadministrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate wasupheld.

FACTS- Jan.13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares ofstock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of

P667,731.66, plus interests, which he claimed were personal funds (as found by CA, the alleged advances consisted ofP58,147.40 estate tax, P518,834.27 deficiency estate tax, a nd P90,749.99 as increment thereto).

- April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from one ofthe savings account were conjugal partnership properties and part of the estate, and hence, there was allegedly noground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for"concealment of funds belonging to the estate."- Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreementexecuted with his late wife and the bank on June 19, 1970, where it was stipulated that all the money that will bedeposited by either of them (Romarico and Dolores) in their joint savings current account shall be their property, and

after the death of either of them shall belong to and be the sole property of the survivor.- The trial courts upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores, theproceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667,731.66 ... ."- On the other hand, the CA, in the petition for certiorari filed by Rowena, held that the above-quoted survivorshipagreement constitutes a conveyance mortis causa which "did not comply with the formalities of a valid will as prescribedby Article 805 of the Civil Code," and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donationunder the provisions of Article 133 of the Civil Code, setting aside the order granting Romaricos motion to sellproperties of Dolores for reimbursement of his alleged advances to the estate.- Romarico assails CAs ruling on the strength of Rivera v. People's Bank and Trust Co. and Macam v. Gatmaitansustaining the validity of " survivorship agreements" and considering them as aleatory contracts.

ISSUEWON the survivorship agreement constitutes a conveyance mortis causa.

HELD

NO.- The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has beendefined as "a personal, solemn, revocable and free act by which a capacitated person disposes of his property andrights and declares or complies with duties to take effect after his death." In other words, the bequest or device mustpertain to the testator. In this case, the monies subject of the savings account were in the nature of conjugal funds.- In the Rivera case, the court rejected claims that a survivorship agreement purports to deliver one party's separateproperties in favor of the other, but simply, their joint holdings- In the Macam case, it was held that the agreement is an aleatory contract whereby, according to article 1790 of theCivil Code, one of the parties or both reciprocally bind themselves to give or do something as an equivalent for thatwhich the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at anindeterminate time.- There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal,having been acquired during the existence of the marital relations.- Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect afterthe death of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a

spouse's own properties to the other.- Also, the agreement involves no modification petition of the conjugal partnership, as held by the CA, by "merestipulation" and that it is no "cloak" to circumvent the law on conjugal property relations as the spouses are notprohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonlydenominated in banking parlance as an "and/or" account. In the case at bar, the spouses Vitug did not dispose ofproperty in favor of the other, which would have arguably been sanctionable as a prohibited donation. And since thefunds were conjugal, it can not be said that one spouse could have pressured the other in placing his or her deposits inthe money pool.- The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that contractimposed a mere obligation with a term, the term being death. Such agreements are permitted by the Civil Code underArticle 20101- While the court has warned that although the survivorship agreement is per se not contrary to law its operation oreffect may be violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak to

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ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do something in con sideration of what the other shallgive or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time.


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hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced heir, it may beassailed and annulled upon such grounds, there is no demonstration in this case that the survivorship agreement hadbeen executed for such unlawful purposes.

MONTINOLA v HERBOSACA REP 2ND 377

CAPISTRANO; 1963NATUREAppeal from a judgment of the CFI Manila

FACTS

Montinola filed this action against the heirs of Jose Rizal for the recovery of possession of personal property (the RIZALRELICS) allegedly sold to him by Dona Trinidad Rizal. The trial court held that neither party is entitled to possession ofproperty, relying principally on the fact that in Rizals MI ULTIMO ADIOS, there was a stanza where Rizal allegedlybequeathed all his property to the Filipino people: Sintang Pilipinas, lupa kong hinirangHuling paalam kotsayoy iiwan. Ang lahat at madlang iniwan sa buhay. The handwritten work of Rizal to the mind of the trial courtconstitutes a holographic will giving to the State all his property.(The Court also relied on the enforceability of Spanish judgment convicting Rizal and adjudging in favor of the stateP100,000 as indemnity as another basis for holding that it is the State that had superior lien over Rizals property but forour purposes, only the issue of succession is herein discussed)

ISSUEWON Rizals MI ULTIMU ADIOS which was handwritten by Rizal is a holographic will, which bequeaths to the State allhis property (the Rizal relics).

HELD- An instrument which merely expresses a last wish as a thought or advice but does not contain a disposition of propertyand was not executed with ANIMUS TESTANDI cannot be legally considered a will.- Rizals MI ULTIMO ADIOS is a literary piece of work and was so intended. It may be considered a will in a grammaticalsense, but not in a legal or juridical sense. Assuming arguendo that the concerned 13 thstanza in the said writing was aholographic will, the fact remains that it is still worthless for noncompliance with the mandatory provisions of the SpanishCivil Code.- Art 688 requires that it be drawn on stamped paper corresponding to the year of its execution, written in its entirety bythe testator and signed by him and must contain a statement of the year, month and day of execution. Art. 689 requiresthat holographic wills be protocoled and shall be presented for this purpose to the judge of first instance of the lastdomicile of the testator or to the one of the place where he died within 5 years from the day of the testators death.Without these requisites, the holographic will shall not be valid.

ENRIQUEZ v ABADIA95 Phil 927

MONTEMAYOR; August 9, 1954

FACTS- September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be hisLast Will and Testament. He died on January 14, 1943 .Andres Enriquez, one of the legatees filed a petition for its probate which was opposed by some cousins and nephewswho would inherit the estate of the deceased if he left no will.- One of the attesting witnesses testified without contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand said will in Spanish which the testator spoke and understood; that he

(testator) signed on he left hand margin of the front page of each of the three folios or sheets of which the document iscomposed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the

last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the saidthree witnesses signed their names on the last page after the attestation clause in his presence and in the presence ofeach other. The oppositors did not submit any evidence.- The trial court found said will to be a holographic will. Although at the time it was executed and at the time of thetestator's death, holographic wills were not permitted by law , the trial court still admitted to probate the Last Will andTestament of Father Sancho Abadia. The TC did so because at the time of the hearing and when the case was to bedecided the new Civil Code was already in force, which permitted the execution of holographic wills. According to the

trial court, to carry out the intention of the testator is the controlling factor and may override any defect in form.

ISSUEWON The New Civil Code may be applied to the probate of Father Abadias will

HELDNo.Article 795 of the new Civil Code expressly provides: "The validity of a will as to its form depends upon the observanceof the law in force at the time it is made."The validity of a will is to be judged not by the law in force at the time of the testator's death or at the time the supposedwill is presented in court for probate or when the petition is decided by the court but at the time the instrument wasexecuted.One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes ofthe testator about the disposition of his estate among his heirs and among the legatees is given solemn expression atthe time the will is executed, and in reality, the. legacy or bequest then becomes a completed act.

From the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it becomes avested right, protected under the due process clause of the constitution against a subsequent change in the statuteadding new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning, when oneexecutes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution thenupon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestatesucession, and no subsequent law with more liberal requirements or which dispenses with such requirements as toexecution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate byintestate succession. The general rule is that the Legislature can not validate void wills.

IN RE: PROBATE OF WILL OF JOSE RIOSAGR L-14074

MALCOLM; November 7, 1918

NATUREAppeal from decision of CFI Albay which disallowed the will of RIosa

FACTS- Jose Riosa made a will in January 1908, disposing of his entire estate. The will was executed according to the law inforce at that time, complying with all the requisites then required. He died April 17, 1917. However, between theexecution of the will and his death, the law on formalities on execution of wills was amended by Act No. 2645 (July 1,1916; it added formalities required such as signatures on each page of the will). The new law, therefore, went into effectafter the making of the will and before the death of the testator, without the testator having left a will that conforms to thenew requirements.

ISSUEWON the will is valid

HELD1. YESThe validity of the execution of a will must be tested by the statutes in force at the time of its execution and statutes

subsequently enacted have no retrospective effect.


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All statutes are to be construed as having only a prospective operation unless the purpose and intention of theLegislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used. Inevery case of doubt, the doubt must be resolved against the restrospective effect.-The language of Act No. 2645 gives no indication of retrospective effect. Such, likewise, has been the uniform tendencyof the SC on cases having special a pplication to testamentary succession.- Our statute announces a positive rule for the transference of property which must be complied with as a completed actat the time of the execution, so far as the act of the testator is concerned, as to all testaments made subsequent to the

enactment of Act No. 2645, but is not effective as to testaments made antecedent to that date.- the court considered 3 views in addressing the issue:(1) validity of wills are tested by the laws in force at the time of death of the testator (considered the right of one to makea will as an inchoate right). This view was rejected by the court. The act of bequeathing or devising is something morethan inchoate or ambulatory. In reality, it becomes a completed act when the will is executed and attested according tothe law, although it does not take effect on the property until a future time. (2) validity of wills must be tested by statutes in force at time of execution. This view is the one adopted by SC(3) statutes relating to the execution of wills, when they increase the necessary formalities, should be construed so asnot to impair the validity of a will already made and, when they lessen the formalities required, should be construed soas to aid wills defectively executed according to the law in force at the time of their making. The court did not directlyaddress this view, but clearly stated that they are adopting the 2ndrule

JIMENEZ v FERNANDEZ184 SCR 190

PARAS; April 6, 1990


FACTS- land in question is the Eastern portion of parcel of residential land with an area of 436 sqm situated in Barrio Dulig,Labrador, Pangasinan in the name of Sulpicia Jimenez. The entire parcel of land with area of 2,932 sqm, formerlybelonged to Fermin Jimenez. Fermin has 2 sons named Fortunato and Carlos Jimenez. Fortunato who predeceased hisfather has only one child, the petitioner Sulpicia. After the death of Fermin, the entire parcel of land was registered underAct 496 in the name of Carlos Jimenez and Sulpicia Jimenez (uncle and niece) in equal shares pro-indiviso withrespective OCTs issued on February 28, 1933. Carlos died on July 9, 1936 and his illegitimate daughter, MeleciaCayabyab, also known as Melecia Jimenez, took possession of the eastern portion of the property consisting of 436sqm.- January 20, 1944, Melecia sold said 436 sqm portion to Edilberto Cagampan. Defendant Teodora Grado executed acontract entitled "Exchange of Real Properties" whereby the Edilberto transferred said 436 sqm portion to the Teodora,who has been in occupation since.- August 29, 1969, Sulpicia executed an affidavit adjudicating unto herself the other half of the property appertaining toCarlos, upon manifestation that she is the only heir of her deceased uncle. Consequently, TCT was issued on October1, 1969 in Sulipicias name alone over the entire 2,932 sqm property.- April 1, 1970, Sulpicia, joined by her husband, instituted the present action for the recovery of the eastern portionconsisting 436 sqm occupied by defendant Teodora and her son.- TRIAL COURT: dismissed the complaint and held defendant Teodora the absolute owner of the land in question- CA: affirmed in toto, MFR deined.

ISSUEWON Melecia Cayabyab (aka Melecia Jimenez) has right to transfer (Melecia to Edilberto) (and consequent transfer(Edilberto to Teodora)) over the said property given that she is illegitimate child of Carlos Jimenez

HELDNO

Reasoning

- Melecia is not the daughter of Carlos Jimenez and therefore, had no right over the property in question. Teodora et alfailed to present concrete evidence to prove that Melecia Cayabyab was really the daughter of Carlos Jimenez.Assuming that Melecia was the illegitimate daughter of Carlos Jimenez there can be no question that Melecia had noright to succeed to the estate of Carlos Jimenez and could not have validly acquired, nor legally transferred to EdilbertoCagampan that portion of the property subject of this petition.- It is well-settled in this jurisdiction that the rights to the succession are transmitted from the moment of the death of thedecedent (A777 CC). Moreover, A2263 CC saysRights to the inheritance of a person who died with or without a will,

before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rulesof Court . . ." Since Carlos died on July 9, 1936, the successional rights pertaining to his estate must be determined inaccordance with the Civil Code of 1889.Cid v. Burnaman: To be an heir under the rules of Civil Code of 1889, a child must be either a child legitimate,legitimated, or adopted, or else an acknowledged natural child for illegitimate not natural are disqualified to inherit. (CivilCode of 1889, Art. 807, 935)- Even assuming that Melecia was born out of the common-law-relationship between her mother (Maria Cayabyab) andCarlos Jimenez, she could not even be considered an acknowledged natural child because Carlos Jimenez was thenlegally married to Susana Abalos and therefore not qualified to marry Maria Cayabyab and consequently MeleciaCayabyab was an illegitimate spurious child and not entitled to any successional rights in so far as the estate of CarlosJimenez was concerned.- Melecia could not even legally transfer the parcel of land to Edilberto who accordingly, could not also legally transferthe same to Teodora.- Melecias possession or of her predecessors-in-interest would be unavailing against Sulpicia who was the holder pro-indiviso with Carlos Jimenez of the Torrens Certificate of Title covering a tract of land which includes the portion now in

question, from February 28, 1933, when the OCT was issued.Benin v. Tuason: No possession by any person of any portion of the land covered by said original certificate of titles,could defeat the title of the registered owner of the land covered by the certificate of title.

MICIANO v BRIMO50 Phil 867

ROMUALDEZ

NATUREAppeal from various Manila CFI orders

FACTS- Joseph Brimo. a Turkish national but a long time resident of the Philippines, died and left behind a testamentary willwith Andre Brimo, one the decedents brother as a legatee.- Andre Brimo opposed the will on the ground that the provisions therein are not in accord with Turkish law and thus aviolation of the Philippine Civil Code, Article 10 which states:"Nevertheless, legal a testamentary successions, in respect to the order of succession as well as to the amount of thesuccessional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the personwhose succession is in question, whatever may be the nature of the property or the country in which it may be situated."- He was also excluded from the will in view of the provision therein that the testator annuls and cancels the dispositionfound in the will favorable to persons who do not respect the provisions of the said will.- The lower court also dismissed the opposition to the will as the oppositor did not prove that said testamentarydispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing whatthe Turkish laws ae on the matter, and in the absence of evidence on such laws, they are presumed to be the same asthose of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)

ISSUES1. WON the will complied with Turkish law xxx2. WON the exclusion of Andre Brimo from the will is valid

HELD1. Yes. The ratiocination of the lower court with regard the presumption that Philippine and Turkish laws are the same is


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valid in the absence of evidence that showing what the Turkish laws are on the matter. Hence the will must be compliedwith and executed as the same is not contrary to Philippine laws.2. No. The condition imposed in the will that legatees must respect the testators will to distribute his property inaccordance with the laws of the Philippines is void for being contrary to law under Article 792 0f the Civil Code whichprovides as follows:"Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall notprejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide."

Said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 ofthe Civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions.Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution oflegatees in said will is unconditional and consequently valid and effective even as to the herein oppositor.

CAYETANO v LEONIDAS129 SCRA 524

GUTIERREZ; May 30, 1984


FACTS- Adoracion Campos died, leaving her father, Hermogenes and her sisters, Nenita Paguia, Remedios Lopez and MarietaMedina as the surviving heirs.- As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication whereby headjudicated unto himself the ownership of the entire estate of Adoracion- Eleven months after, Nenita Paguia filed a petition for the reprobate of a will of Adoracion, which was allegedlyexecuted in the US and for her appointment as administratrix of the estate of the deceased testatrix.- An opposition to the reprobate of the will was filed by Hermogenes alleging among other things, that he has everyreason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and thateven if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they wouldwork injustice and injury to him.- Hermogenes filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able toverify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his daughterAdoracion." Hence, anex-partepresentation of evidence for the reprobate of the questioned will was made.- Respondent judge issued an order admitting the Last Will and Testament of Adoracion and allowed probate in thePhilippines, and Nenita Paguia was appointed Administratrix of the estate of said decedent.- Hermogenes filed a petition for relief, praying that the order allowing the will be set aside on the ground that thewithdrawal of his opposition to the same was secured through fraudulent means. He filed another motion entitled"Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction.- Respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof.Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also deniedthe motion to vacate for lack of merit.

ISSUEWON the provisions of the will are valid.

HELD- NO. As a general rule, the probate court's authority is limited only to the extrinsic validity of t he will, the due executionthereof, 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 dulyauthenticated. However, 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.- Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have

denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of herdeath, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A.

- Capacity to succeed is governed by the law of the nation of the decedent. The law which governs Adoracion Campo'swill is the law of Pennsylvania, U.S.A., which is the national law of the decedent. It is a settled rule that as regards theintrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the national lawof the decedent must apply.- The settlement of the estate of Adoracion Campos was correctly filed with the CFI of Manila where she had an estatesince it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident ofPennsylvania, and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is estopped from

questioning the jurisdiction of the probate court in the petition for relief.

ABANGAN v ABANGAN(Ajang)

SUREZA v SALUD(Giulia)

MATIAS v SALUD104 Phil 1046

Reyes; June 23, 1958

NATURE

Appeal from an order of the CFI of Cavite denying probate of the purported will of the late Gabina Raquel

FACTS- Gabina Raquel executed a will bequeathing most of her properties to her niece Aurea Matias, in recompense for theservices rendered for 30 years, and some legacies are made to her other nephews and nieces surnamed Salud andMatias.- The document appears to be composed of three pages. On the lower half of the second page, preceding theattestation clause, appears the signature Gabina Raquel which is apparently of admitted authenticity. Alongside it is asmudge in violet ink, with blurred ridge lines, claimed by the proponents to be a thumbmark affixed by the testatrix.Gabina had no choice but just to affix her thumbmark as she had difficulty signing the document due to her herpeszoster that afflicted her right arm and shoulder. On the third page, at the end of the attestation clause appear thesignature on the left margin of each page; and on the upper part of each pages left margin appears a violet ink smudgesimilar to the one previously described, accompanied by t he written words Gabina Raquel and underneath said nameby Lourdes Samonte (one of the witnesses).- The probate of the will has been opposed by Salud. She urges that the fingermark of the testatrix cannot be regarded

as her valid signature since it does not show distinct identifying ridge lines; and thence, that the attestation clauseshould be held defective because it fails to state that Lourdes Samonte signed for the testator.- The CFI Judge ruled in favor her, denying probate of the purported will based primarily on the testimony of theconsultants expert witness. Thus, this appeal.

ISSUEWON the specific legal requirements of a notarial will were satisfied

HELDYES. The legal requisite that the will should be signed by the testator is satisfied by a thumbprint or other mark affixedby him; and that where such mark is affixed by the decedent, it is necessary to state in the attestation clause thatanother person wrote the testators name at his request. While in the some cases the signing by mark was described inthe will or in the attestation clause, it does not appeat that the Court ever held that the absence of such description is afatal defect.


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GARCIA v LACUESTA90 Phil 489

PARAS; November 29, 1951

FACTSThe will of Antero Mercado, dated January 3, 1943 and written Ilocano, appears to have been signed by Atty. Florentino

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

ISSUEWON the attestation clause is defective

HELDYES.The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to writethe testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. PetitionerRosario Garcia argues, however, that there is no need for such recital because the cross written by the testator after hisname is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that thecross is as much a signature as a thumbmark.The court is not prepared to liken the mere sign of a cross to a thumbmark, and the reason is obvious. The cross cannotand does not have the trustworthiness of a thumbmark.

BALONAN V ABELLANA109 PHIL 358

LABRADOR, August 31, 1960

NATUREAppeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one AnacletaAbellana.

FACTS-The last Will and Testament, which is sought to be probated, was written in the Spanish language and consists of two(2) typewritten pages double spaced. The first page was signed by Juan Bello and under his name appearstypewritten "Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad deZamboanga'(which I think means, for the testatrix Anacleta Abellana, residence certificate A-1167629, January 20,1951, City of Zamboanga)-On the second page appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso andRafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his officialdesignation as the notary public who notarized the said testament. On the first page on the left margin of the saidinstrument also appear the signatures of the instrumental witnesses. On the second page, which is the last page of saidlast Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page onthe left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase, "Por laTestadora Anacleta Abellana'.The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos.

ISSUE

WON the signature of Dr. Juan Abello above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudadde Zamboanga," comply with the requirements of law prescribing the manner in which a will shall be executed

HELDNO. The deceased Anacleta Abellana may not be admitted to probate.Anacleta Abellanas name does not appear written under the will by said Abellana herself, or by Dr. Juan Abello.Article 805 of t he Civil Code, as well as Section 618 of the Code of Civil Procedure (Act No. 190 probably old) requirethat the testator himself sign the will, or if he cannot do so, the testators name must be written by some other person inhis presence and by his express direction.

-Ex Parte Pedro Arcenas, et al., Phil, 700: If the testator will not be able to sign the will, the attesting witnesses shouldsign the will at the testators request, the notary certifying thereto, then the testators name should be written by theperson signing in his stead in the place where he could have signed if he knew how or was able to do so, and do this inthe testators presence and by the testators express direction. It should be signed in the following manner: John Doe bythe testator, Richard Doe; or in this form: "By the testator, John Doe, Richard Doe." All this must be written by thewitness signing at the request of the testator.-Barut vs. Cabacungan, 21 Phil, 461: is should clearly appear that the name of the testatrix was signed at her expressdirection; it is unimportant whether the person who writes the name of the testatrix signs his own or not.

NERA v RIMANDO18 PHIL 450

CARSON; February 27, 1911

NATUREAppeal from a decree of CFI La Union admitting the instrument propounded therein to probate as the last will andtestament of Pedro Rimando

FACTS- It is alleged that at the time when the testator and the subscribing witnesses attached their signatures to theinstrument, one of the subscribing parties (Javellana) was in another room.- Hence, it was impossible for him to see the whole act of signing because a curtain would block his view. This wouldthen negate the finding of the CFI as to the due execution of the instrument propounded as a will.- The trial judge did not consider this relevant as he was of the opinion that this allegation, even if proven, would not besufficient to invalidate the will on the basis of Jaboneta v Gustilo.

ISSUEWON one of the subscribing witnesses was present in the small room where it was executed at the time when thetestator and the other witnesses attached their signatures

HELD

YESRatio The true test of presence of the testator and the witnesses in the execution of a will is not whether theyactually saw each other sign, but whether they might have seen each other sign , had they chosen to do so ,considering their mental and physical condition and position with relation to each other at the moment ofinscription of each signature. (Jaboneta v Gustilo)2Reasoning Evidence shows that at the moment when Javellana signed the document, he was actually and physicallypresent and in such position with relation to Jaboneta that he could see everything that took place by merely casting hiseyes in the proper direction and without any physical obstruction to prevent his doing so.* The question whether the testator and the subscribing witnesses to an alleged will signed the instrument in thepresence of each other does NOT depend upon proof of the fact that their eyes were actually cast upon the paper at themoment of its subscription by each of them, but that at that moment, existing conditions and their position with relation toeach other were such that by merely casting the eyes in the proper direction, they could have seen each other sign. Toextend the doctrine further would lead to the possibility of all manner of fraud, substitution and the like, and would defeatthe purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.

2CFI judge misapplied the doctrine laid down in Jaboneta v Gustilo.


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TABOADA v ROSAL118 SCRA 195

GUTIERREZ, JR.; November 5, 1982

NATUREPetition for review of the orders issued by the CFI of Southern Leyte

FACTS-Taboada filed a petition for probate, and attached therewith the alleged last will and testament of Dorotea Perez writtenin the Cebuano-Visayan dialect-The will consists of two pages: the first page contains the entire testamentary dispositions and is signed at the end orbottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses ,and the second page contains the attestation clause and the acknowledgment is signed at the end of the attestationclause by the three (3) attesting witnesses and at the left hand margin by the testatrix.-The petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, whotestified on its genuineness and due execution.-TC, thru then Presiding Judge Pamatian, denied the probate of the will of Dorotea Perez for want of a formality in itsexecution, and petitioner was also required to submit the names of the intestate heirs with their correspondingaddresses so that they could be properly notified and could intervene in the summary settlement of the estate.-The petitioner filed an MFR, and subsequently, a motion for the appointment of special administrator.-The said motion was still pending resolution when respondent Judge Rosal assumed the position of presiding judge,and denied said motion, along with the motion for the appointment of special administrator-The petitioner filed the present petition.

ISSUEWON the probate of the will should be denied for want of a formality in its execution

HELDNO.While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should beignored, especially where the authenticity of the will is not assailed.-The respondent Judge interprets Art 805 of the CC to require that, for a notarial will to be valid, it is not enoughthat only the testatrix signs at the "end" but that the three subscribing witnesses must also sign at the sameplaceat the endnot on the left hand margin.-Under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by thetestator's name written by another person in his presence, and by his express direction, and attested and subscribed bythree or more credible witnesses in the presence of the testator and of one another.

-Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that thosethings which the statute requires for the execution of a will are done, and that the signature of the testator exists as afact. Subscription is the signing of the witnesses' names upon the same paper-The law is to be liberally construed, the underlying and fundamental objective being the liberalization of the manner oftheir execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficientsafeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure andinfluence upon the testator.-The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumentalwitnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so whenthe will was properly identified by subscribing witness Vicente Timkang.-We have examined the will in question and noticed that the attestation clause failed to state the number of pages usedin writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from theentire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumentalwitnesses.

ICASIANO v ICASIANO11 SCRA 4222

REYES; June 30, 1964

FACTS. This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the

original as the alleged will of Josefa Villacorte (testatrix), deceased.. The court set the proving of the alleged will and caused notice thereof to be published for 3 successive weeks,previous to the time appointed, in the newspaper "Manila Chronicle", and also caused personal service of copies thereofupon the known heirs.A daughter and son of the testatrix opposed the probate of the alleged will.. Celsolater filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left awill executed in duplicate with all the legal requirements, and that he was submitting the signed duplicate . Thiswas also opposed.-Court, after hearing the parties, issued the order admitting the will and its duplicate to probate . Natividad andEnrique were unhappy so they appealed to SC directly.The evidence presented for the petitioner is summarized as follows: Testatrix executed a last will and testament induplicate at the house of her daughter Mrs. Felisa Icasiano at Manila, published before and attested by 3 instrumentalwitnesses, namely; attorneys Torres, Jr. and Jose Natividad ( Jose), and Dr. Diy; that the will was acknowledged by thetestatrix and by the said three instrumental witnesses on the same date before attorney Ong, Notary Public in and forManila; and that the will was actually prepared by attorney Samson, who was also present during the execution andsigning of the decedent's last will and testament, together with former Governor Rustia of Bulacan, Judge RamonIcasiano, and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will andtestament attorneys Torres and Josewere in the Philippines at the time of the hearing, and both testified as to the dueexecution and authenticity of the said will. So did the Notary Publicbefore whom the will was acknowledged by thetestatrix and attesting witnesses, and also attorney Samson.. The original consists of five pages, and while signed at the end and in every page,it does not contain the signatureof one of the attesting witnesses , Jose, on page (3); but the duplicatecopyis signed by the testatrix and her 3attesting witnesses in each and every page..Witness Joseadmits that he may have lifted two pages instead of one when he signed the same, but affirmed thatpage 3 was signed in his presence.

ISSUEWON the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneouslifting of two pages in the course of signing, is NOTper sesufficient to justify denial of probate.

HELD

YES. It DOES NOTJUSTIFYDENIAL of probate. Impossibility of substitution of this page is assured not only the factthat the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of theseal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should notbe so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness overwhose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and itscomponent pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on recordattests to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil vs. Murciano, "witnessesmay sabotage the will by muddling or bungling it or the attestation clause"..This would not be the first time that this Court departs from a strict and literal application of the statutory requirements,where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held thata testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could neverthelessbe probated (Abangan vs. Abangan); and that despite the requirement for the correlative lettering of the pages of a will,the failure to mark the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro). These precedentsexemplify the Court's policy to require satisfaction of the legal requirements in order to guard against fraud and bad faithbut without undue or unnecessary curtailment of the testamentary privilege.

. SC is satisfied that : the testatrix signed both original and duplicate copies of the will spontaneously, on the sameoccasion, in the presence of the three attesting witnesses, the notary public who acknowledged the will, and Atty.


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Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a languageknown to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Samson togetherbefore they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrixand the witnesses. .The opinion of expert for oppositors did not convince the SC principally because said expert failed toshow convincingly that there are radical differences that would justify the charge of forgery, taking into account theadvanced age of the testatrix..There is also no adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others

is proof of neither..That the carbon duplicate was produced & admitted without a new publication does not affect the jurisdiction of theprobate court, already conferred by the original publication of the petition for probate

CAGRO v CAGRO92 Phil 1032

PARAS; April 29, 1953

FACTSIn the will allegedly executed by decedent Vicente Cagro, the signatures of the 3 witnesses do not appear at the bottomof the attestation clause, although their signatures appear at the left-hand margin of the same page. The CFI admittedthe will to probate. Oppositors appeal this decision.

ISSUEWON the absence of the signatures of the witnesses at the bottom of the attestation clause, although their signaturesappear at the left-hand margin of the same page, is a fatal defect.

HELDYES.The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to bemade by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot beconsidered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives theirparticipation.The Court also ruled that the signatures appearing at the left-hand margin cannot be admitted as sufficient because thenit would be easy to just add the attestation clause on a subsequent occasion.

J. Angelo (dissenting).The will has substantially complied with the requirements of the law. The witnesses testifiedthat when they signed the will, the attestation clause was already there. This was not contradicted. The objection is tootechnical because inAbangan v. Abangan, the Court said that when the testamentary dispositions "are wholly written ononly one sheet signed at the bottom by the testator and three witnesses (as the instant case), their signatures on the leftmargin of said sheet would be completely purposeless." In such a case, the court said, the requirement of the signatures

on the left hand margin was not necessary because the purpose of the law which is to avoid the substitution of any ofthe sheets of the will, thereby changing the testator's dispositions has already been accomplished. We should notalso overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose of which, in caseof doubt, is to give such interpretation that would have the effect of preventing intestacy (articles 788 and 791, New CivilCode).

J. Tuason (dissenting). The law on wills does not provide that the attesting witness should sign the clause at thebottom. In the absence of such provision, there is no reason why signatures on the margin are not good. A letter is notany the less the writer's simply because it was signed, not at the conventional place but on the side or on top.

CRUZ v VILLASOR, ET AL.00 SCRA 00

ESGUERRA; NOVEMBER 26, 1973

NATURE

Petition for review on certiorari

FACTSPetitioner-appellant Agapita Cruz, the surviving spouse of Valente Cruz opposed the allowance of the will (Exhibit "E"),alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrumentwas execute without the testator having been fully informed of the content thereof, particularly as to what properties hewas disposing and that the supposed last will and testament was not executed in accordance with law. Of the threeinstrumental witnesses thereto, one of them, the last named, is at the same time the Notary Public before whom the willwas supposed to have been acknowledged. As the third witness is the notary public himself, petitioner argues that theresult is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, privaterespondent-appellee Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintainsthat there is substantial compliance with the legal requirement of having at least three attesting witnesses even if thenotary public acted as one of them, bolstering up his stand withAmerican Jurisprudence. Notwithstanding her objection,the Court allowed the probate of the said last will and testament. Hence this appeal by certiorari which was given duecourse.

ISSUESWON the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law,particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest andsubscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notarypublic

HELDNO. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witnesssince he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow(Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit;and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of theEnglish Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's NewInternational Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have toavow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split hispersonality into two so that one will appear before the other to acknowledge his participation in the making of the will. To

permit such a situation to obtain would be sanctioning a sheer absurdity.Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement(Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attestinginstrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him andthe validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which isto minimize fraud (Report of Code Commission p. 106-107), would be thwarted.Admittedly, there are American precedents holding that nota ry public may, in addit ion, act as a wit ness to the executiveof the document he has notarized. There are others holding that his signing merely as notary in a will nonethelessmakes him a witness thereon. But these authorities do not serve the purpose of the law in this jurisdiction or are notdecisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted asinstrumental, subscribing attesting witnesses, and not as acknowledgingwitnesses. He the notary public acted not onlyas attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code whichreads:ART. 806. Every wi ll must be acknowledged before a notary public by the testator and the witnesses . The notary publicshall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have theeffect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be


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requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and therequired number of witnesses must appear before the notary public to acknowledge the will. The result would be, as hasbeen said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the lawwould not be duly in observed.

GABUCAN v MANTAG.R. No. L-51546

AQUINO; January 28, 1980

NATUREMandamus

FACTS- This case is about the CFI Camiguins dismissal of a petition for the probate of a notarial will ( of the late RogacianoGabucan) on the ground that the requisite documentary stamp was not affixed to the notarial acknowledgment in the willand, hence, according to Judge Manta, it was not admissible in evidence, citing section 238 of the Tax Code, nowsection 250 of the 1977 Tax Code, which reads:SEC. 238. Effect of failure to stamp taxable document. An instrument, document, or paper which is required by law to bestamped and which has been signed, issued, accepted, or transferred without being duly stamped, shall not berecorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in anycourt until the requisite stamp or stamps shall have been affixed thereto and cancelled.No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to any documentsubject to documentary stamp tax unless the proper documentary stamps are affixed thereto and cancelled.- The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-centavodocumentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.- Judge Manta refused to reconsider the dismissal in spite of petitioner's manifestation that he had already attached thedocumentary stamp to the original of the will.

HELDThe lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will, there was "nowill and testament to probate" and, consequently, the alleged "action must of necessity be dismissedWhat the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavodocumentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document.That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which doesnot bear the requisite documentary stamp, subsists only "until the requisite stamp or stamps shall have been affixedthereto and cancelled."Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence

(Del Castillo vs. Madrilena 49 Phil. 749). If the promissory note does not bear a documentary stamp, the court shouldhave allowed plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note theholding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document does notinvalidate such document.

JAVELLANA v LEDESMA97 PHIL 258

REYES; June 30, 1955

NATUREAppeal from judgment of CFI Iloilo

FACTS- CFI admitted to probate the documents as the testament and codicil by Javellana, with Tabiana, Montinola and Yap aswitnesses.- Contestant Ledesma appealed, saying the exhibits were not executed in conformity with law.

ISSUE/S1. WON the testament was validly executed2. WON the certificate of acknowledgment was validly notarized

HELD1. YES- Ledesma argues that upon witness Yaps insistence, Javellana signed the testamento in the presence of Yap alone

and returned it with the statement that no one would question it.- Court rightly rejected Ledesmas version. It was found that the testament was executed by testatrix and witnesses inthe presence of each other, at the house of the decedent. It is highly unlikely that either Tabiana or Yap should haveinsisted that Javellana, an infirm lady over 80, should leave her house to execute her will when all three witnesses couldhave easily repaired thither for the purpose.2. YES- Unlike the testament, the codicil was executed after the enactment of new Civil Code. Therefore, it had to beacknowledged before a notary public.- The same witnesses asserted that after codicil was signed by Javellana and the witnesses, the same was signed andsealed by notary public in the hospital. But the notary public said he did not, that he signed and sealed the codicil in hisoffice.- This variance doesnt necessarily imply perversion of truth.- First, the mind has a tendency, in recalling past events, to substitute the usual and habitual for what differs slightly fromit.- Second, whether notary signed certification of acknowledgment in the presence of the testatrix and witnesses, doesnt

affect validity of the codicil. The new Civil Code doesnt require that the signing of the testator, witnesses and notaryshould be in one single act. Art 805 and 806 says that while testator and witnesses should sign in the presence of eachother, all that is thereafter required is that every will must be acknowledged before a notary public by the testator andthe witnesses.

GARCIA v VASQUEZ.32 SCRA 489

REYES, JBL; April 30, 1970

NATUREAppeal from an order of the CFI of Manila

FACTS- Gilceria Avelino del Rosario died unmarried without any descendants, ascendants, brother or sister. Consuelo S.Gonzales Vda. de Precilla, niece of the deceased, petitioned the CFI for probate of the alleged last will and testament of

the deceased, executed on 29 December 1960, and for her appointment as special administratrix of the latters estatepending the appointment of a regular administrator thereof.- The petition was opposed by several groups of alleged heirs. Their major contentions were that the instrumentexecuted in 1960 was not intended by the deceased to be her true will and that the formalities required by law have notbeen complied with. They also opposed the appointment of Consuelo as special administratrix on the ground that thelatter possesses interest adverse to the estate.- CFI granted petitioners prayer and appointed her special administratrix.- Oppositors filed several other motions and petitions in connection with the administration of the estate.- Called to testify on the due execution of the will, the 3 instrumental witnesses uniformly declared that they wereuniformly requested by the late husband of petitioner, Alfonso Precilla, to witness the execution of the last will of thedeceased; that the testatrix at that time was apparently of clear and sound mind, although she was being aided byPrecilla when she walked; that the will, which was already prepared, was first read silently by the testatrix herselfbefore she signed it; that the 3 witnesses thereafter signed the will in the presence of the testatrix and the notary publicand of one another. They also testified, among other things, that on that occasion no pressure or influence has beenexerted by any person upon the testatrix to execute the will.

- CFI issued an order admitting to probate the 1960 will and appointed the petitioner regular administratrix.


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- Oppositor-appellants maintain that on date of execution of the will, the eyesight of the deceased was so poor anddefective that she could not have read the provisions of the will. They called the ophthalmologist of the decedent to thewitness stand to prove this fact.

ISSUEWON the CFI erred in admitting the will to probate

HELDYES- The testimony of the ophthalmologist who treated the deceased fully established the fact that notwithstanding theoperation and removal of the cataract in her left eye and her being fitted with aphakic lens, the deceaseds visionremained mainly for viewing distant objects and not for reading print. Thus, the conclusion is inescapable that with thecondition of her eyesight and there is no evidence that it had improved by the time of the execution of the will, Gilceriadel Rosario was incapable of reading, and could not have read the provisions of the will supposedly signed by her onDecember 29, 1960.- Against the background of the defective eyesight of the alleged testatrix, the appearance of the will acquires strikingsignificance. The words were crammed into a single sheet of paper. Plainly, the testament was not prepared with anyregard for the defective vision of Dona Gliceria.- Thus, for all intents and purposes of the rules on probate, the deceased was not unlike a blind testator, and the dueexecution of her will would have required observance of the provisions of Art. 808 of the Civil Code.- The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the willhimself is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance

with his wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to andunderstood by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirementthat the will should be read to the latter, not only once but twice, by two different persons, and that the witnesses have toact within the range of the testators other senses.- In connection with the will here in question, there is nothing in the records to show that the above requisites have beencomplied with. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its dueexecution.

ALVARADO v GAVIOLAGR No. 74695

BELLOSILLO, September 14, 1993

NATUREAppeal from the Decision of the IAC which affirmed the Order of the RTC of Sta. Cruz, Laguna, admitting to probate thelast will and testament with codicil of the late Brigido Alvarado.

FACTS- 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son(petitioner Cesar Alvarado) and expressly revoked a previously executed holographic will at the time awaiting probate.- At the execution of the "Huling Habilin", the testator did not read the final draft of the will himself. Instead, his lawyerBayani Ma. Rino who drafted the document, read the same aloud in the presence of the testator, the 3 instrumentalwitnesses and the notary public. The latter 4 followed the reading with their own respective copies.- The same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin naMay Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will togenerate cash for the testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance andrevocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the Final draftof the codicil. Instead, it was his lawyer who read it aloud in his presence and in the presence of the 3 instrumentalwitnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies.- A petition for the probate of the notarial will and codicil was filed upon the testator's death by Atty. Rino, as executor,with the CFI of Siniloan, Laguna. Cesar filed an Opposition on the ground, among others, that the will was not executed

and attested as required by law. A Probate Order was issued from which an appeal was made to the IAC. The mainthrust of the appeal was that the deceased was blind within the meaning of the law at the time his "Huling Habilin" and

the codicil were executed; that since the reading required by Art. 808 of the CC was admittedly not complied with,probate of the deceased's last will and codicil should have been denied. The CA found that Brigido Alvarado was notblind at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808was substantially complied.

ISSUES1. WON Brigido Alvarado was blind for purposes of Art. 808 at the time his "Huling Habilin" and its codicil were

executed.2. WON the double reading requirement of said article was complied with.

HELD1. YES.Ratio The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the willhimself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if theyare not in accordance with his wishes. [Garcia vs. Vasquez]ReasoningIt is clear from the foregoing that Art. 808 applies not only to blind testators but also to those who, for onereason or another, are incapable of reading their will. Since Brigido Alvarado was incapable of reading the final drafts ofhis will and codicil on the separate occasions of their execution due to his "poor," "defective," or 'blurred" vision, therecan be no other course but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used inArt. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted t hewill and codicil did so conformably with his instructions.

2. YES.RatioSubstantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that thesolemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery butare never intended to be so rigid and inflexible as to destroy the testamentary privilege.Reasoning Atty. Rino read the testator's will and codicil aloud, in the presence of the testator, his 3 instrumentalwitnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that thecontents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There isno evidence that the contents of the will and codicil were not sufficiently made known and communicated to the testator.- Moreover, the notary public and the 3 instrumental witnesses likewise read the will and codicil, albeit silently. With fourpersons following the reading word for word with their own copies, it can be safely concluded that the testator wasreasonably assured that what was read to him were the terms actually appearing on the typewritten documents. This isespecially true when we consider the fact that the 3 instrumental witnesses were persons known to the testator, onebeing his physician and another being known t o him since childhood.- The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, toavoid the substitution of wills and testament and to guaranty their truth and authenticity. Therefore, the laws on thesubject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, one must not losesight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So whenan interpretation already given assures such ends, any other interpretation whatsoever that adds nothing but demandsmore requisites entirely unnecessary, useless and frustration of the testator's will, must be disregarded. [Abangan v.Abangan]

GIL v MURCIANO(Sarah)

CANEDA v CA00 SCRA 00

REGALADO; May 28, 1993

NATURE

Petition for review on certiorariof issue of whether or not the attestation clause contained in the last will and testamentof the late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code


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FACTSon December 5, 1978, Mateo Caballero, a widower without any children and already old, executed a last will andtestament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, GregorioCabando and Flaviano Toregosa.We, the undersigned attesting Witnesses, w hose Residences and postal addresses appear on the Opposite of ourrespective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO;

has published unto us the foregoing Wi ll consisting of THREE PAGES, including the Acknowledgment, each pagenumbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has thesame and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence ofthe said testator and in the presence of each and all of us.Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and ofone another (Under the third paragraph of Article 805, such a clause, the complete lack of which would result in theinvalidity of the will, should state (1) the number of the pages used upon which the will is written; (2) that the testatorsigned, or expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses;and (3) that the attesting witnesses witnessed the signing by the testator of the willand all its pages, andthat saidwitnesses also signed the will and every page thereof in the presence of the testator and of one another.)

- the aforequoted attestation clause, in contravention of the express requirements of the third paragraph of Article 805 ofthe Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses the testator sign thewill and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in thepresence of the testator and of each other.

ISSUEWON the substantial compliance rule, in A809 (. In the absence of bad faith, forgery, or fraud, or undue and improperpressure and influence, defects and imperfections in the formof attestation or in the languageused therein shall notrender the will invalid if it is not proved that the will was in fact executed and attested in substantial compliance with allthe requirements of article 805") applies in this case

HELDNo. the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in thedisallowance of the will that is here sought to be admitted to probate. The aforestated defect in the attestation clauseobviously cannot be characterized as merely involving the form of the will or the language used therein which wouldwarrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the CivilCode (A809). . . The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself:whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether thesubscribing witnesses are three or the will was notarized. All theses are facts that the will itself can reveal, and defectsor even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages,and whether all persons required to sign did so in the presence of each other must substantially appear in the attestationclause, being the only check against perjury in the probate proceedings .the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in thepresence of the testator and of each other. In such a situation, the defect is not only in the form or language of theattestation clause but the total absence of a specific element required by Article 805 to be specifically stated in theattestation clause of a will.

GONZALES v CA (SANTIAGO)90 SCRA 183

GUERRERO; May 25, 1979

FACTS-Herein respondent filed a petition with CFI Rizal for the probate of a will alleged to have been executed by thedeceased Isabel Gabriel and designating Santiago as the principal beneficiary and executrix.

-There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in themunicipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having

been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and petitionerRizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and children, livedwith the deceased at the latters residence prior and up to the time of her death. -The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordancewith the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if any, bepaid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother SantiagoGabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all

surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena all surnamed Santiago. Toherein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal napamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal heir andexecutor, were bequeathed all properties and estate, real or personal already acquired, or to be acquired, in her testatrixname, after satisfying the expenses, debts and legacies as aforementioned.-The petition was opposed by herein petitioner, assailing the document purporting to be the will of the deceased on thefollowing grounds:1. that the same is not genuine; and in the alternative2. that the same was not executed and attested as required by law;3. that, at the time of the alleged execution of the purported will the decedent lacked testamentary capacity due to oldage and sickness; and in the second alternative4. That the purported will was procured through undue and improper pressure and influence on the part of the principalbeneficiary, and/or of some other person for her benefit.-CFI found for Gonzales grounds 3 and 4 and disallowed the probate.-From this judgment of disallowance, Santiago appealed to respondent Court, hence, the only issue decided on appeal

was whether or not the will in question was executed and attested as required by law. CA, upon consideration of theevidence adduced by both parties, rendered the decision now under review, holding that the will in question was signedand executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses, MatildeOrobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the deceased andof each other as required by law, hence allowed probate. Petitioners MFR denied.-Oppositor Gonzales went to SC contending that CA abused its discretion and/or acted without or in excess of itsjurisdiction in reversing the findings of fact and conclusions of the tri al court. SC, after deliberating on the petition butwithout giving due course resolved to require the respondents to comment thereon. Upon consideration of theallegations, the issues raised and the arguments adduced in the petition, as well as the Comment of private respondentthereon, SC denied the petition, the question raised being factual and for insufficient showing that the findings of fact byrespondent Court were unsupported by substantial evidence.-Gonzales filed MFR -still raising factual issues. SC gave due course. SC discussed non-disturbance of CAs factualfindings but still explained on the merits.

ISSUE/S1. WON credible witnesses meant that before an alleged last will and testament may be admitted to probate, theremust be

Documents

89858049 Succession Digests Part 1a