G.R. No.

L-39247 June 27, 1975

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.

Roberto M. Sarenas for petitioner.

Jose B. Guyo for private respondents.

AQUINO, J.:

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. Montaña,

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 Montaña 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.

Montaña 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. Montaña, 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. Montaña 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. Montaña
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. Montaña and signed by Felix Balanay, Jr., Beatriz V.
Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they
terminated Montaña'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.
Montaña'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, L-23135,
December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30,
1965, 13 SCRA 693).1äwphï1.ñët

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).1äwphï1.ñët

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.

JOSE MERZA, petitioner,
vs.
PEDRO LOPEZ PORRAS, respondent.

Primicias, Abad, Mencies & Castillo for petitioner.

Moises Ma. Buhain for respondent.

TUAZON , J.:

This is an appeal from the Court of Appeals which affirmed an order of the
Court of First Instance of Zambales denying the probate of the last will and
testament and
so-called codicil, identified as Exhibits A and B, of Pilar Montealegre,
deceased. The testatrix was survived by the husband and collateral
relatives, some of whom, along with the husband, were disinherited in
Exhibit B for the reasons set forth therein.

The opposition to Exhibit A was predicated on alleged defects of the

attestation clause. Written in the local dialect known to the testatrix, the
attestation clause, as translated into English in the record on appeal, reads:
The foregoing instrument consisting of three pages, on the date above-
mentioned, was executed, signed and published by testatrix Pilar
Montealegre and she declared that the said instrument is her last will and
testament; that in our presence and also in the very presence of the said
testatrix as likewise in the presence of two witnesses and the testatrix each
of us three witnesses signed this a testament.

The opponent objected that this clause did not estate that the tetratrix and
the witnesses had signed each and every page of the will or that she had
signed the instrument in the presence of the witnesses. The Appellate
Court dismissed the first objection, finding that "failure to estate in the
attestation clause in question that the testatrix and/or the witnesses had
signed each and every page of Exhibit A were cured by the fact that each
one of the page of the instrument appears to be signed by the testatrix and
the three attesting witnesses (Nayve vs. Mojal, 47 Phil., 152, (1924); Ticson
vs. Gorostiza, 57 Phil., (1932); Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl.
(October 18, 1939), 510, 528; Rallos vs. Rallos, 44 Off. Gaz., 4938, 4940)."
But granting the correctness of the premise, the court held the second
objection well taken and thus concluded: "The question whether the
testatrix had signed in the presence of said witnesses can not be verified
upon physical examination of the instrument. Hence, the absence of the
require statement in said clause may not, pursuant to the decisions of the
Supreme Court, be offset by proof aliunde even if admitted without any
objection."

The premise of the conclusion is, in our opinion, incorrect.

It must be admitted that the attestation clause was very poor drawn, its
language exceedingly ungrammatical to the point of being difficult to
understand; but from a close examination of the whole context in relation to
its purpose the implication seems clear that the testatrix signed in the
presence of the witnesses. Considering that the witnesses' only business at
hand was to sign and attest to the testatrix's signing of the document, and
that the only actors of the proceeding were the maker and the witnesses
acting and speaking collectively and in the first person, the phrase "in our
presence," used as it was in connection with the process of signing, can not
imply anything but the testatrix signed before them. No other inference is
possible. The prepositional phrase "in our presence" denotes an active
verb and the verb a subject. The verb could not be other than signed and
the subject no other than the testatrix.

The use of the word "also" is no less enlightening. It denotes that, as each
of the witnesses sign in the presence of the testatrix and of one another, so
the testatrix sign in similar or like manner — in their presence.

In consonance with the principle of the liberal interpretation, adhered to in

numerous later decision of this Court and affirmed and translated into
inactment in the new Civil Code (Article 827), we are constrained to hold
the attestation clause under consideration sufficient and valid.

"Precision of language in the drafting of the attestation clause is desirable.

However, it is not imperative that a parrot-like copy of the word of the
statue be made. It is sufficient if from the language employed it can
reasonably be deduced that the attestation clause fulfills what the law
expects of it." (Ticson vs. Gorostiza, supra.)

"It could have been the intention of the legislature in providing for the
essential safeguards in the execution of a will to shackle the very right of
the testamentary disposition which the law recognizes and holds sacred."
(Leynes vs. Leynes, supra.)

With reference of Exhibit B the Court of Appeal agreed with the trial court
that the document having been executed one day before Exhibit A could
not be considered as a codicil "because a codicil, as the word implies, is
only an addition to, or modification of, the will." The Court of Appeals added
that "the content of Exhibit B are couched in the language of ordinarily used
in a simple affidavit and as such, may not have the legal effect and force to
a testamentary disposition." Furthermore, the Court of Appeals observed,
disinheritance "may not be made in any instrument other than the will of
Exhibit A, as expressly provided for in article 849 of the Civil Code," and,
"there being no disposition as to the disinheritance of the oppositor, Pedro
Lopez Porras (the surviving spouse), in the said Exhibit A, it is quite clear
that he can not be disinherited in any other instrument including Exhibit B,
which is, as above stated, a simple affidavit."

Exhibit B does partake of the nature of a will. A will is defined in article 667
of the Civil code of Spain as "the act by which a persons dispose of all his
property or a portion of it," and in article 783 of the new Civil Code as "an
act whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate, to take effect after
his death. Exhibit B comes within this definition.

Being of testamentary character and having been made with all the
formalities of law, Exhibit B is entitled to probate as an independent
testementary desposition. In the absence of any legal provision to the
contrary — and there is none in this jurisdiction — it is the general, well-
established rule that two separate and distinct wills may be probated if one
does not revoke the other (68 C.J., 885) and provided that the statutory
requirements relative to the execution of wills have been complied with (Id.
881). As seen, Exhibit B embodied all the requisites of a will, even free of
such formal of literary imperfections as are found in Exhibit A.

It also follows that Exhibit B is a legal and effective vehicle for excluding
lawful heirs from testate or intestate succession. Article 849 of the Civil
Code of Spain does not, as the appealed decision seems to insinuate,
require that the disinheritance should be accomplished in the same
instrument by which the maker provides the disposition of his or her
property after his or death. This article merely provides that "disinheritance
can be affected only by a will (any will) in which the legal cause upon which
it is based is expressly stated."
It is our judgment therefore that the instruments Exhibit A and B admitted to
probate, subject of courts to the right of the disinherited person under
particle 850 to contest the disinheritance, and it is so ordered, with costs
against the appellee.

DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D.

SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial
Court, National Capital Judicial Region, Branch 21, Manila, ALFREDO D.
SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS,
VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-
LIM, BETTY D. SEANGIO-OBAS and JAMES D. SEANGIO, Respondents.

DECISION

AZCUNA, J.:

This is a petition for certiorari1 with application for the issuance of a writ of
preliminary injunction and/or temporary restraining order seeking the
nullification of the orders, dated August 10, 1999 and October 14, 1999, of
the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the
petition for probate on the ground of preterition, in the consolidated cases,
docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and
entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v.
Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of
Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and
Virginia Seangio."

The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the
settlement of the intestate estate of the late Segundo Seangio, docketed as
Sp. Proc. No. 98–90870 of the RTC, and praying for the appointment of
private respondent Elisa D. Seangio–Santos as special administrator and
guardian ad litem of petitioner Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed

the petition. They contended that: 1) Dy Yieng is still very healthy and in full
command of her faculties; 2) the deceased Segundo executed a general
power of attorney in favor of Virginia giving her the power to manage and
exercise control and supervision over his business in the Philippines; 3)
Virginia is the most competent and qualified to serve as the administrator of
the estate of Segundo because she is a certified public accountant; and, 4)
Segundo left a holographic will, dated September 20, 1995, disinheriting
one of the private respondents, Alfredo Seangio, for cause. In view of the
purported holographic will, petitioners averred that in the event the
decedent is found to have left a will, the intestate proceedings are to be
automatically suspended and replaced by the proceedings for the probate
of the will.

On April 7, 1999, a petition for the probate of the holographic will of

Segundo, docketed as SP. Proc. No. 99–93396, was filed by petitioners
before the RTC. They likewise reiterated that the probate proceedings
should take precedence over SP. Proc. No. 98–90870 because testate
proceedings take precedence and enjoy priority over intestate
proceedings.2

The document that petitioners refer to as Segundo’s holographic will is

quoted, as follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores

St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon
ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang
paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan
sa akin at isan beses siya ng sasalita ng masama harapan ko at mga
kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at
sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang
araw na ako nasa ilalim siya at siya nasa ibabaw.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa
China Bangking Corporation na millon pesos at hindi ng babayad at hindi
ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari
at stockholders ng China Banking.

At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga

custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng
anak ko si Virginia.

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at
hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si
Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.

Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa

harap ng tatlong saksi. 3

(signed)
Segundo Seangio

Nilagdaan sa harap namin

(signed)

Dy Yieng Seangio (signed)

Unang Saksi ikalawang saksi

(signed)

ikatlong saksi

On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and
SP. Proc. No. 99–93396 were consolidated.4

On July 1, 1999, private respondents moved for the dismissal of the

probate proceedings5 primarily on the ground that the document purporting
to be the holographic will of Segundo does not contain any disposition of
the estate of the deceased and thus does not meet the definition of a will
under Article 783 of the Civil Code. According to private respondents, the
will only shows an alleged act of disinheritance by the decedent of his
eldest son, Alfredo, and nothing else; that all other compulsory heirs were
not named nor instituted as heir, devisee or legatee, hence, there is
preterition which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called upon to
rule only on the extrinsic validity of the will, it is not barred from delving into
the intrinsic validity of the same, and ordering the dismissal of the petition
for probate when on the face of the will it is clear that it contains no
testamentary disposition of the property of the decedent.

Petitioners filed their opposition to the motion to dismiss contending that: 1)

generally, the authority of the probate court is limited only to a
determination of the extrinsic validity of the will; 2) private respondents
question the intrinsic and not the extrinsic validity of the will; 3)
disinheritance constitutes a disposition of the estate of a decedent; and, 4)
the rule on preterition does not apply because Segundo’s will does not
constitute a universal heir or heirs to the exclusion of one or more
compulsory heirs.6

On August 10, 1999, the RTC issued its assailed order, dismissing the
petition for probate proceedings:

A perusal of the document termed as "will" by oppositors/petitioners Dy

Yieng Seangio, et al., clearly shows that there is preterition, as the only
heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being
omitted, Article 854 of the New Civil Code thus applies. However, insofar
as the widow Dy Yieng Seangio is concerned, Article 854 does not apply,
she not being a compulsory heir in the direct line.

As such, this Court is bound to dismiss this petition, for to do otherwise

would amount to an abuse of discretion. The Supreme Court in the case of
Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has made its
position clear: "for … 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 … 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 (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings
is hereby DENIED for lack of merit. Special Proceedings No. 99–93396 is
hereby DISMISSED without pronouncement as to costs.

SO ORDERED.7

Petitioners’ motion for reconsideration was denied by the RTC in its order
dated October 14, 1999.

Petitioners contend that:

THE RESPONDENT JUDGE ACTED IN EXCESS OF HER

JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED
A QUESTION OF LAW NOT IN ACCORD WITH LAW AND
JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10
AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B"
HEREOF) CONSIDERING THAT:

THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH

SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE
PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL
HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL
FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND
THAT THE TESTATOR’S WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC
VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED
RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED
ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE
WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATOR’S
TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;

II

EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS

THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE
WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF
THE TESTATOR’S WILL THAT NO PRETERITON EXISTS AND THAT
THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,

III

RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE

PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A
SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE
OVER INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of
the Rules of Court which respectively mandate the court to: a) fix the time
and place for proving the will when all concerned may appear to contest the
allowance thereof, and cause notice of such time and place to be published
three weeks successively previous to the appointed time in a newspaper of
general circulation; and, b) cause the mailing of said notice to the heirs,
legatees and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but
rather, as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply
contains a disinheritance of a compulsory heir. Thus, there is no preterition
in the decedent’s will and the holographic will on its face is not intrinsically
void;

Third, the testator intended all his compulsory heirs, petitioners and private
respondents alike, with the sole exception of Alfredo, to inherit his estate.
None of the compulsory heirs in the direct line of Segundo were preterited
in the holographic will since there was no institution of an heir;

Fourth, inasmuch as it clearly appears from the face of the holographic will
that it is both intrinsically and extrinsically valid, respondent judge was
mandated to proceed with the hearing of the testate case; and,

Lastly, the continuation of the proceedings in the intestate case will work
injustice to petitioners, and will render nugatory the disinheritance of
Alfredo.

The purported holographic will of Segundo that was presented by

petitioners was dated, signed and written by him in his own handwriting.
Except on the ground of preterition, private respondents did not raise any
issue as regards the authenticity of the document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably

showed Segundo’s intention of excluding his eldest son, Alfredo, as an heir
to his estate for the reasons that he cited therein. In effect, Alfredo was
disinherited by Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the
same must be effected through a will wherein the legal cause therefor shall
be specified. With regard to the reasons for the disinheritance that were
stated by Segundo in his document, the Court believes that the incidents,
taken as a whole, can be considered a form of maltreatment of Segundo by
his son, Alfredo, and that the matter presents a sufficient cause for the
disinheritance of a child or descendant under Article 919 of the Civil Code:

Article 919. The following shall be sufficient causes for the disinheritance of
children and descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against
the life of the testator, his or her spouse, descendants, or ascendants;

(2) When a child or descendant has accused the testator of a crime for
which the law prescribes imprisonment for six years or more, if the
accusation has been found groundless;

(3) When a child or descendant has been convicted of adultery or

concubinage with the spouse of the testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue

influence causes the testator to make a will or to change one already
made;

(5) A refusal without justifiable cause to support the parents or ascendant

who disinherit such child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or

descendant;8

(7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction.

Now, the critical issue to be determined is whether the document executed

by Segundo can be considered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be
entirely written, dated, and signed by the hand of the testator himself. It is
subject to no other form, and may be made in or out of the Philippines, and
need not be witnessed.

Segundo’s document, although it may initially come across as a mere

disinheritance instrument, conforms to the formalities of a holographic will
prescribed by law. It is written, dated and signed by the hand of Segundo
himself. An intent to dispose mortis causa[9] can be clearly deduced from
the terms of the instrument, and while it does not make an affirmative
disposition of the latter’s property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words, the
disinheritance results in the disposition of the property of the testator
Segundo in favor of those who would succeed in the absence of Alfredo.10

Moreover, it is a fundamental principle that the intent or the will of the

testator, expressed in the form and within the limits prescribed by law, must
be recognized as the supreme law in succession. All rules of construction
are designed to ascertain and give effect to that intention. It is only when
the intention of the testator is contrary to law, morals, or public policy that it
cannot be given effect.11

Holographic wills, therefore, being usually prepared by one who is not

learned in the law, as illustrated in the present case, should be construed
more liberally than the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument and the
intention of the testator.12 In this regard, the Court is convinced that the
document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was
intended by Segundo to be his last testamentary act and was executed by
him in accordance with law in the form of a holographic will. Unless the will
is probated,13 the disinheritance cannot be given effect.14

With regard to the issue on preterition,15 the Court believes that the
compulsory heirs in the direct line were not preterited in the will. It was, in
the Court’s opinion, Segundo’s last expression to bequeath his estate to all
his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did
not institute an heir16 to the exclusion of his other compulsory heirs. The
mere mention of the name of one of the petitioners, Virginia, in the
document did not operate to institute her as the universal heir. Her name
was included plainly as a witness to the altercation between Segundo and
his son, Alfredo.1âwphi1

Considering that the questioned document is Segundo’s holographic will,

and that the law favors testacy over intestacy, the probate of the will cannot
be dispensed with. Article 838 of the Civil Code provides that no will shall
pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. Thus, unless the will is probated, the
right of a person to dispose of his property may be rendered nugatory.17

In view of the foregoing, the trial court, therefore, should have allowed the
holographic will to be probated. It is settled that testate proceedings for the
settlement of the estate of the decedent take precedence over intestate
proceedings for the same purpose.18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial

Court of Manila, Branch 21, dated August 10, 1999 and October 14, 1999,
are set aside. Respondent judge is directed to reinstate and hear SP Proc.
No. 99-93396 for the allowance of the holographic will of Segundo Seangio.
The intestate case or SP. Proc. No. 98-90870 is hereby suspended until
the termination of the aforesaid testate proceedings.

No costs.

SO ORDERED.

G.R. No. 82027 March 29, 1990

ROMARICO G. VITUG, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-
CORONA, respondents.

Rufino B. Javier Law Office for petitioner.

Quisumbing, Torres & Evangelista for private respondent.

SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court 1 involving the
probate of the two wills of the late Dolores Luchangco Vitug, who died in
New York, U. S.A., on November 10, 1980, naming private respondent
Rowena Faustino-Corona executrix. In our said decision, we upheld the
appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's
estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug,
pending probate.

On January 13, 1985, Romarico G. Vitug filed a motion asking for authority
from the probate court to sell certain shares of stock 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 the Court of Appeals, 2 the alleged advances consisted of
P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency
estate tax, and P90,749.99 as "increment thereto." 3 According to Mr.
Vitug, he withdrew the sums of P518,834.27 and P90,749.99 from savings
account No. 35342-038 of the Bank of America, Makati, Metro Manila.

On April 12, 1985, Rowena Corona opposed the motion to sell on the
ground that the same funds withdrawn from savings account No. 35342-
038 were conjugal partnership properties and part of the estate, and hence,
there was allegedly no ground 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." 4

Vitug insists that the said funds are his exclusive property having acquired
the same through a survivorship agreement executed with his late wife and
the bank on June 19, 1970. The agreement provides:

We hereby agree with each other and with the BANK OF AMERICAN
NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to
as the BANK), that all money now or hereafter deposited by us or any or
either of us with the BANK in our joint savings current account shall be the
property of all or both of us and shall be payable to and collectible or
withdrawable by either or any of us during our lifetime, and after the death
of either or any of us shall belong to and be the sole property of the
survivor or survivors, and shall be payable to and collectible or
withdrawable by such survivor or survivors.

We further agree with each other and the BANK that the receipt or check of
either, any or all of us during our lifetime, or the receipt or check of the
survivor or survivors, for any payment or withdrawal made for our above-
mentioned account shall be valid and sufficient release and discharge of
the BANK for such payment or withdrawal. 5

The trial courts 6 upheld the validity of this agreement and granted "the
motion to sell some of the estate of Dolores L. Vitug, the proceeds of which
shall be used to pay the personal funds of Romarico Vitug in the total sum
of P667,731.66 ... ." 7

On the other hand, the Court of Appeals, in the petition for certiorari filed by
the herein private respondent, held that the above-quoted survivorship
agreement constitutes a conveyance mortis causa which "did not comply
with the formalities of a valid will as prescribed by Article 805 of the Civil
Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is
a prohibited donation under the provisions of Article 133 of the Civil Code.
9

The dispositive portion of the decision of the Court of Appeals states:

WHEREFORE, the order of respondent Judge dated November 26, 1985

(Annex II, petition) is hereby set aside insofar as it granted private
respondent's motion to sell certain properties of the estate of Dolores L.
Vitug for reimbursement of his alleged advances to the estate, but the
same order is sustained in all other respects. In addition, respondent Judge
is directed to include provisionally the deposits in Savings Account No.
35342-038 with the Bank of America, Makati, in the inventory of actual
properties possessed by the spouses at the time of the decedent's death.
With costs against private respondent. 10

In his petition, Vitug, the surviving spouse, assails the appellate court's
ruling on the strength of our decisions in Rivera v. People's Bank and Trust
Co. 11 and Macam v. Gatmaitan 12 in which we sustained the validity of
"survivorship agreements" and considering them as aleatory contracts. 13

The petition is meritorious.

The conveyance in question is not, first of all, one of mortis causa, which
should be embodied in a will. A will has been defined as "a personal,
solemn, revocable and free act by which a capacitated person disposes of
his property and rights and declares or complies with duties to take effect
after his death." 14 In other words, the bequest or device must pertain to
the testator. 15 In this case, the monies subject of savings account No.
35342-038 were in the nature of conjugal funds In the case relied on,
Rivera v. People's Bank and Trust Co., 16 we rejected claims that a
survivorship agreement purports to deliver one party's separate properties
in favor of the other, but simply, their joint holdings:

xxx xxx xxx

... Such conclusion is evidently predicated on the assumption that

Stephenson was the exclusive owner of the funds-deposited in the bank,
which assumption was in turn based on the facts (1) that the account was
originally opened in the name of Stephenson alone and (2) that Ana Rivera
"served only as housemaid of the deceased." But it not infrequently
happens that a person deposits money in the bank in the name of another;
and in the instant case it also appears that Ana Rivera served her master
for about nineteen years without actually receiving her salary from him. The
fact that subsequently Stephenson transferred the account to the name of
himself and/or Ana Rivera and executed with the latter the survivorship
agreement in question although there was no relation of kinship between
them but only that of master and servant, nullifies the assumption that
Stephenson was the exclusive owner of the bank account. In the absence,
then, of clear proof to the contrary, we must give full faith and credit to the
certificate of deposit which recites in effect that the funds in question
belonged to Edgar Stephenson and Ana Rivera; that they were joint (and
several) owners thereof; and that either of them could withdraw any part or
the whole of said account during the lifetime of both, and the balance, if
any, upon the death of either, belonged to the survivor. 17

xxx xxx xxx

In Macam v. Gatmaitan, 18 it was held:

xxx xxx xxx

This Court is of the opinion that Exhibit C is an aleatory contract whereby,

according to article 1790 of the Civil Code, one of the parties or both
reciprocally bind themselves to give or do something as an equivalent for
that which the other party is to give or do in case of the occurrence of an
event which is uncertain or will happen at an indeterminate time. As already
stated, Leonarda was the owner of the house and Juana of the Buick
automobile and most of the furniture. By virtue of Exhibit C, Juana would
become the owner of the house in case Leonarda died first, and Leonarda
would become the owner of the automobile and the furniture if Juana were
to die first. In this manner Leonarda and Juana reciprocally assigned their
respective property to one another conditioned upon who might die first, the
time of death determining the event upon which the acquisition of such right
by the one or the other depended. This contract, as any other contract, is
binding upon the parties thereto. Inasmuch as Leonarda had died before
Juana, the latter thereupon acquired the ownership of the house, in the
same manner as Leonarda would have acquired the ownership of the
automobile and of the furniture if Juana had died first. 19

xxx xxx xxx

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 marita. relations. 20

Neither is the survivorship agreement a donation inter vivos, for obvious

reasons, because it was to take effect after the 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.

It is also our opinion that the agreement involves no modification petition of

the conjugal partnership, as held by the Court of Appeals, 21 by "mere
stipulation" 22 and that it is no "cloak" 23 to circumvent the law on conjugal
property relations. Certainly, the spouses are not prohibited by law to invest
conjugal property, say, by way of a joint and several bank account, more
commonly denominated in banking parlance as an "and/or" account. In the
case at bar, when the spouses Vitug opened savings account No. 35342-
038, they merely put what rightfully belonged to them in a money-making
venture. They did not dispose of it in favor of the other, which would have
arguably been sanctionable as a prohibited donation. And since the funds
were conjugal, it can not be said that one spouse could have pressured the
other in placing his or her deposits in the money pool.

The validity of the contract seems debatable by reason of its "survivor-take-

all" feature, but in reality, that contract imposed a mere obligation with a
term, the term being death. Such agreements are permitted by the Civil
Code. 24
Under Article 2010 of the Code:

ART. 2010. By an aleatory contract, one of the parties or both reciprocally

bind themselves to give or to do something in consideration of what the
other shall give or do upon the happening of an event which is uncertain, or
which is to occur at an indeterminate time.

Under the aforequoted provision, the fulfillment of an aleatory contract

depends on either the happening of an event which is (1) "uncertain," (2)
"which is to occur at an indeterminate time." A survivorship agreement, the
sale of a sweepstake ticket, a transaction stipulating on the value of
currency, and insurance have been held to fall under the first category,
while a contract for life annuity or pension under Article 2021, et sequentia,
has been categorized under the second. 25 In either case, the element of
risk is present. In the case at bar, the risk was the death of one party and
survivorship of the other.

However, as we have warned:

xxx xxx xxx

But although the survivorship agreement is per se not contrary to law its
operation or effect may be violative of the law. For instance, if it be shown
in a given case that such agreement is a mere cloak to hide an inofficious
donation, to transfer property in fraud of creditors, or to defeat the legitime
of a forced heir, it may be assailed and annulled upon such grounds. No
such vice has been imputed and established against the agreement
involved in this case. 26

xxx xxx xxx

There is no demonstration here that the survivorship agreement had been
executed for such unlawful purposes, or, as held by the respondent court,
in order to frustrate our laws on wills, donations, and conjugal partnership.

The conclusion is accordingly unavoidable that Mrs. Vitug having

predeceased her husband, the latter has acquired upon her death a vested
right over the amounts under savings account No. 35342-038 of the Bank
of America. Insofar as the respondent court ordered their inclusion in the
inventory of assets left by Mrs. Vitug, we hold that the court was in error.
Being the separate property of petitioner, it forms no more part of the estate
of the deceased.

WHEREFORE, the decision of the respondent appellate court, dated June

29, 1987, and its resolution, dated February 9, 1988, are SET ASIDE.

No costs.

SO ORDERED.

JOHNNY S. RABADILLA,1 petitioner,

vs.
COURT OF APPEALS AND MARIA MARLENA2 COSCOLUELLA Y
BELLEZA VILLACARLOS, respondents.

DECISION
PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals,3 dated
December 23, 1993, in CA-G.R. No. CV-35555, which set aside the
decision of Branch 52 of the Regional Trial Court in Bacolod City, and
ordered the defendants-appellees (including herein petitioner), as heirs of
Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its
fruits and interests, to the estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja

Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein
petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855
square meters of that parcel of land surveyed as Lot No. 1392 of the
Bacolod Cadastre. The said Codicil, which was duly probated and admitted
in Special Proceedings No. 4046 before the then Court of First Instance of
Negros Occidental, contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge
Rabadilla resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate
of Title No. RT-4002 (10942), which is registered in my name according to
the records of the Register of Deeds of Negros Occidental.
(b) That should Jorge Rabadilla die ahead of me, the aforementioned
property and the rights which I shall set forth hereinbelow, shall be inherited
and acknowledged by the children and spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die

and Jorge Rabadilla shall have already received the ownership of the said
Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of
Title No. RT-4002 (10942), and also at the time that the lease of Balbinito
G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the
obligation until he dies, every year to give to Maria Marlina Coscolluela y
Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza
dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392
of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-
4002 (10492), shall have the obligation to still give yearly, the sugar as
specified in the Fourth paragraph of his testament, to Maria Marlina
Coscolluela y Belleza on the month of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event
that the one to whom I have left and bequeathed, and his heir shall later
sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have
also the obligation to respect and deliver yearly ONE HUNDRED (100)
piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of
December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25)
piculs of Domestic, until Maria Marlina shall die, lastly should the buyer,
lessee or the mortgagee of this lot, not have respected my command in this
my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall
immediately seize this Lot No. 1392 from my heir and the latter's heirs, and
shall turn it over to my near desendants, (sic) and the latter shall then have
the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria
Marlina shall die. I further command in this my addition (Codicil) that my
heir and his heirs of this Lot No. 1392, that they will obey and follow that
should they decide to sell, lease, mortgage, they cannot negotiate with
others than my near descendants and my sister."4

Pursuant to the same Codicil, Lot No. 1392 was transferred to the
deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498
thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and
children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed
Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos

brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of
the Regional Trial Court in Bacolod City, against the above-mentioned heirs
of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The
Complaint alleged that the defendant-heirs violated the conditions of the
Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the
Republic Planters Bank in disregard of the testatrix's specific instruction to
sell, lease, or mortgage only to the near descendants and sister of the
testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one

hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs
domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar
crop years 1985 up to the filing of the complaint as mandated by the
Codicil, despite repeated demands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which
provided that in case of the sale, lease, or mortgage of the property, the
buyer, lessee, or mortgagee shall likewise have the obligation to deliver
100 piculs of sugar per crop year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-

heirs to reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja
Belleza, the cancellation of TCT No. 44498 in the name of the deceased,
Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the
names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on

March 28, 1990 the Order of Default was lifted, with respect to defendant
Johnny S. Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan
Azurin, son-in-law of the herein petitioner who was lessee of the property
and acting as attorney-in-fact of defendant-heirs, arrived at an amicable
settlement and entered into a Memorandum of Agreement on the obligation
to deliver one hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of
TCT No. 44489 will be delivered not later than January of 1989, more
specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of
our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December
of each sugar crop year, in Azucar Sugar Central; and, this is considered
compliance of the annuity as mentioned, and in the same manner will
compliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-
88, will be complied in cash equivalent of the number of piculs as
mentioned therein and which is as herein agreed upon, taking into
consideration the composite price of sugar during each sugar crop year,
which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS
(P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered

cash installment, payable on or before the end of December of every sugar
crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY

(P26,250.00) Pesos, payable on or before December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY

(P26,250.00) Pesos, payable on or before December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY

(P26,250.00) Pesos, payable on or before December of crop year 1990-91;
and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 1991-
92."5

However, there was no compliance with the aforesaid Memorandum of

Agreement except for a partial delivery of 50.80 piculs of sugar
corresponding to sugar crop year 1988 -1989.

On July 22, 1991, the Regional Trial Court came out with a decision,
dismissing the complaint and disposing as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that
the action is prematurely filed as no cause of action against the defendants
has as yet arose in favor of plaintiff. While there maybe the non-
performance of the command as mandated exaction from them simply
because they are the children of Jorge Rabadilla, the title holder/owner of
the lot in question, does not warrant the filing of the present complaint. The
remedy at bar must fall. Incidentally, being in the category as creditor of the
left estate, it is opined that plaintiff may initiate the intestate proceedings, if
only to establish the heirs of Jorge Rabadilla and in order to give full
meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed
is DISMISSED without prejudice.

SO ORDERED."6

On appeal by plaintiff, the First Division of the Court of Appeals reversed

the decision of the trial court; ratiocinating and ordering thus:
"Therefore, the evidence on record having established plaintiff-appellant's
right to receive 100 piculs of sugar annually out of the produce of Lot No.
1392; defendants-appellee's obligation under Aleja Belleza's codicil, as
heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to
plaintiff-appellant; defendants-appellee's admitted non-compliance with
said obligation since 1985; and, the punitive consequences enjoined by
both the codicil and the Civil Code, of seizure of Lot No. 1392 and its
reversion to the estate of Aleja Belleza in case of such non-compliance,
this Court deems it proper to order the reconveyance of title over Lot No.
1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza.
However, plaintiff-appellant must institute separate proceedings to re-open
Aleja Belleza's estate, secure the appointment of an administrator, and
distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her
right, reserved to her by the codicil, to receive her legacy of 100 piculs of
sugar per year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one
entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to
reconvey title over Lot No. 1392, together with its fruits and interests, to the
estate of Aleja Belleza.

SO ORDERED."7

Dissatisfied with the aforesaid disposition by the Court of Appeals,

petitioner found his way to this Court via the present petition, contending
that the Court of Appeals erred in ordering the reversion of Lot 1392 to the
estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the
Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla
is a modal institution within the purview of Article 882 of the New Civil
Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal
in accordance with Article 882 of the New Civil Code on modal institutions
and in deviating from the sole issue raised which is the absence or
prematurity of the cause of action. Petitioner maintains that Article 882
does not find application as there was no modal institution and the testatrix
intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge
Rabadilla, was to be substituted by the testatrix's "near descendants"
should the obligation to deliver the fruits to herein private respondent be not
complied with. And since the testatrix died single and without issue, there
can be no valid substitution and such testamentary provision cannot be
given any effect.

The petitioner theorizes further that there can be no valid substitution for
the reason that the substituted heirs are not definite, as the substituted
heirs are merely referred to as "near descendants" without a definite
identity or reference as to who are the "near descendants" and therefore,
under Articles 8438 and 8459 of the New Civil Code, the substitution
should be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition that

the Court of Appeals deviated from the issue posed before it, which was
the propriety of the dismissal of the complaint on the ground of prematurity
of cause of action, there was no such deviation. The Court of Appeals
found that the private respondent had a cause of action against the
petitioner. The disquisition made on modal institution was, precisely, to
stress that the private respondent had a legally demandable right against
the petitioner pursuant to subject Codicil; on which issue the Court of
Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights are
transmitted from the moment of death of the decedent10 and compulsory
heirs are called to succeed by operation of law. The legitimate children and
descendants, in relation to their legitimate parents, and the widow or
widower, are compulsory heirs.11 Thus, the petitioner, his mother and
sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla,
succeeded the latter by operation of law, without need of further
proceedings, and the successional rights were transmitted to them from the
moment of death of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the
property, rights and obligations of a person, not extinguished by his death.
Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject
Codicil were transmitted to his forced heirs, at the time of his death. And
since obligations not extinguished by death also form part of the estate of
the decedent; corollarily, the obligations imposed by the Codicil on the
deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory
heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge
Rabadilla, subject to the condition that the usufruct thereof would be
delivered to the herein private respondent every year. Upon the death of
Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title
over the said property, and they also assumed his (decedent's) obligation
to deliver the fruits of the lot involved to herein private respondent. Such
obligation of the instituted heir reciprocally corresponds to the right of
private respondent over the usufruct, the fulfillment or performance of
which is now being demanded by the latter through the institution of the
case at bar. Therefore, private respondent has a cause of action against
petitioner and the trial court erred in dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal
institutions is not applicable because what the testatrix intended was a
substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's
near descendants should there be noncompliance with the obligation to
deliver the piculs of sugar to private respondent.
Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to

take the place of the heir or heirs first instituted. Under substitutions in
general, the testator may either (1) provide for the designation of another
heir to whom the property shall pass in case the original heir should die
before him/her, renounce the inheritance or be incapacitated to inherit, as
in a simple substitution,12 or (2) leave his/her property to one person with
the express charge that it be transmitted subsequently to another or others,
as in a fideicommissary substitution.13 The Codicil sued upon
contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of

the first heir by reason of incapacity, predecease or renunciation.14 In the
case under consideration, the provisions of subject Codicil do not provide
that should Dr. Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would substitute him. What
the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill
the conditions imposed in the Codicil, the property referred to shall be
seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point,

petitioner is correct. In a fideicommissary substitution, the first heir is strictly
mandated to preserve the property and to transmit the same later to the
second heir.15 In the case under consideration, the instituted heir is in fact
allowed under the Codicil to alienate the property provided the negotiation
is with the near descendants or the sister of the testatrix. Thus, a very
important element of a fideicommissary substitution is lacking; the
obligation clearly imposing upon the first heir the preservation of the
property and its transmission to the second heir. "Without this obligation to
preserve clearly imposed by the testator in his will, there is no
fideicommissary substitution."16 Also, the near descendants' right to inherit
from the testatrix is not definite. The property will only pass to them should
Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the
usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing

here. Under Article 863, the second heir or the fideicommissary to whom
the property is transmitted must not be beyond one degree from the first
heir or the fiduciary. A fideicommissary substitution is therefore, void if the
first heir is not related by first degree to the second heir.17 In the case
under scrutiny, the near descendants are not at all related to the instituted
heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge
Rabadilla under subject Codicil is in the nature of a modal institution and
therefore, Article 882 of the New Civil Code is the provision of law in point.
Articles 882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of
the property left by the testator, or the charge imposed on him, shall not be
considered as a condition unless it appears that such was his intention.

That which has been left in this manner may be claimed at once provided
that the instituted heir or his heirs give security for compliance with the
wishes of the testator and for the return of anything he or they may receive,
together with its fruits and interests, if he or they should disregard this
obligation.

Art. 883. When without the fault of the heir, an institution referred to in the
preceding article cannot take effect in the exact manner stated by the
testator, it shall be complied with in a manner most analogous to and in
conformity with his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is
known in the law of succession as an institucion sub modo or a modal
institution. In a modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left by the testator,
or (3) the charge imposed by the testator upon the heir.18 A "mode"
imposes an obligation upon the heir or legatee but it does not affect the
efficacy of his rights to the succession.19 On the other hand, in a
conditional testamentary disposition, the condition must happen or be
fulfilled in order for the heir to be entitled to succeed the testator. The
condition suspends but does not obligate; and the mode obligates but does
not suspend.20 To some extent, it is similar to a resolutory condition.21

From the provisions of the Codicil litigated upon, it can be gleaned

unerringly that the testatrix intended that subject property be inherited by
Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed
an obligation on the said instituted heir and his successors-in-interest to
deliver one hundred piculs of sugar to the herein private respondent,
Marlena Coscolluela Belleza, during the lifetime of the latter. However, the
testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of
his institution as a devisee, dependent on the performance of the said
obligation. It is clear, though, that should the obligation be not complied
with, the property shall be turned over to the testatrix's near descendants.
The manner of institution of Dr. Jorge Rabadilla under subject Codicil is
evidently modal in nature because it imposes a charge upon the instituted
heir without, however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an

obligation imposed upon the heir should not be considered a condition
unless it clearly appears from the Will itself that such was the intention of
the testator. In case of doubt, the institution should be considered as modal
and not conditional.22

Neither is there tenability in the other contention of petitioner that the

private respondent has only a right of usufruct but not the right to seize the
property itself from the instituted heir because the right to seize was
expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the

Will, as to the application of any of its provisions, the testator's intention is
to be ascertained from the words of the Will, taking into consideration the
circumstances under which it was made.23 Such construction as will
sustain and uphold the Will in all its parts must be adopted.24

Subject Codicil provides that the instituted heir is under obligation to deliver
One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella.
Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or mortgagee should they sell, lease,
mortgage or otherwise negotiate the property involved. The Codicil further
provides that in the event that the obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella shall seize the property and turn it
over to the testatrix's near descendants. The non-performance of the said
obligation is thus with the sanction of seizure of the property and reversion
thereof to the testatrix's near descendants. Since the said obligation is
clearly imposed by the testatrix, not only on the instituted heir but also on
his successors-in-interest, the sanction imposed by the testatrix in case of
non-fulfillment of said obligation should equally apply to the instituted heir
and his successors-in-interest.

Similarly unsustainable is petitioner's submission that by virtue of the

amicable settlement, the said obligation imposed by the Codicil has been
assumed by the lessee, and whatever obligation petitioner had become the
obligation of the lessee; that petitioner is deemed to have made a
substantial and constructive compliance of his obligation through the
consummated settlement between the lessee and the private respondent,
and having consummated a settlement with the petitioner, the recourse of
the private respondent is the fulfillment of the obligation under the amicable
settlement and not the seizure of subject property.
Suffice it to state that a Will is a personal, solemn, revocable and free act
by which a person disposes of his property, to take effect after his death.25
Since the Will expresses the manner in which a person intends how his
properties be disposed, the wishes and desires of the testator must be
strictly followed. Thus, a Will cannot be the subject of a compromise
agreement which would thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the

Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555
AFFIRMED. No pronouncement as to costs

SO ORDERED.

G.R. No. 1439 March 19, 1904

ANTONIO CASTAÑEDA, plaintiff-appellee,

vs.
JOSE E. ALEMANY, defendant-appellant.

Ledesma, Sumulong and Quintos for appellant.

The court erred in holding that all legal formalities had been complied with
in the execution of the will of Doña Juana Moreno, as the proof shows that
the said will was not written in the presence of under the express direction
of the testratrix as required by section 618 of the Code of Civil Procedure.

Antonio V. Herrero for appellee.

The grounds upon which a will may be disallowed are limited to those
mentioned in section 634 of the Code of Civil Procedure.

WILLARD, J.:

(1) The evidence in this case shows to our satisfaction that the will of Doña
Juana Moreno was duly signed by herself in the presence of three
witnesses, who signed it as witnesses in the presence of the testratrix and
of each other. It was therefore executed in conformity with law.

There is nothing in the language of section 618 of the Code of Civil

Procedure which supports the claim of the appellants that the will must be
written by the testator himself or by someone else in his presence and
under his express direction. That section requires (1) that the will be in
writing and (2) either that the testator sign it himself or, if he does sign it,
that it be signed by some one in his presence and by his express direction.
Who does the mechanical work of writing the will is a matter of indifference.
The fact, therefore, that in this case the will was typewritten in the office of
the lawyer for the testratrix is of no consequence. The English text of
section 618 is very plain. The mistakes in translation found in the first
Spanish edition of the code have been corrected in the second.

(2) To establish conclusively as against everyone, and once for all, the
facts that a will was executed with the formalities required by law and that
the testator was in a condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will. (Sec. 625.) The
judgment in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the validity of any
provisions made in the will. It can not decide, for example, that a certain
legacy is void and another one valid. It could not in this case make any
decision upon the question whether the testratrix had the power to appoint
by will a guardian for the property of her children by her first husband, or
whether the person so appointed was or was not a suitable person to
discharge such trust.

All such questions must be decided in some other proceeding. The grounds
on which a will may be disallowed are stated the section 634. Unless one of
those grounds appears the will must be allowed. They all have to do with
the personal condition of the testator at the time of its execution and the
formalities connected therewith. It follows that neither this court nor the
court below has any jurisdiction in his proceedings to pass upon the
questions raised by the appellants by the assignment of error relating to the
appointment of a guardian for the children of the deceased.

It is claimed by the appellants that there was no testimony in the court

below to show that the will executed by the deceased was the same will
presented to the court and concerning which this hearing was had. It is true
that the evidence does not show that the document in court was presented
to the witnesses and identified by them, as should have been done. But we
think that we are justified in saying that it was assumed by all the parties
during the trial in the court below that the will about which the witnesses
were testifying was the document then in court. No suggestion of any kind
was then made by the counsel for the appellants that it was not the same
instrument. In the last question put to the witness Gonzales the phrase "this
will" is used by the counsel for the appellants. In their argument in that
court, found on page 15 of the record, they treat the testimony of the
witnesses as referring to the will probate they were then opposing.

The judgment of the court below is affirmed, eliminating therefrom,

however, the clause "el cual debera ejecutarse fiel y exactamente en todas
sus partes." The costs of this instance will be charged against the
appellants.