Case # 28 Icasiano vs. IcasianoIN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.CELSO ICASIANO,petitioner-appellee,vs.NATIVIDAD ICASIANO and ENRIQUE ICASIANO,oppositors-appellants.Notes: (from business dictionary)Definition of duplicate copyThe twoclassificationsare: (1)copiesproduced forinformationpurposes only and which may be destroyed after use, and (2) copies that haveadministrative,fiscal,legal, orhistorical value.Definitionof duplicate originalA copy that has all the essential aspects of the original, including signatures.NotesA duplicate original of a letter may be created and sent by different routes to increase the likelihood that at least one original copy arrives to the addressee.FACTS:1. JosefaVillacorta executed her last will and testament in duplicate on June 2, 1956 and she died on Sept. 12, 1958. The will was:* attested by three instrumental witnesses- Justo Torres Jr., Jose Natividad and VinicioDy* acknowledged by the testatrix and the three instrumental witnesses on the same date before Atty. Ong, Notary Public* the will was actually prepared by Atty. Samson who was present during the execution and signing of the decedents last will and testament.* pages of the original and duplicate were duly numbered* the attestation clause contains all the facts required by law to be recited therein and signed by the attesting witnesses* will is written in the language known to and spoken by the testatrix (Tagalog)* will was executed in one single occasion in duplicate copies* both original and duplicate copies were duly acknowledged before the Notary Public on the same date.2. The will consisted of five pages and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose Natividad on page 3 thereof; but the duplicate copy attached was signed by the testatrix and the three attesting witnesses in each and every page.ISSUE: Does the failure of one of the attesting witnesses to sign on one page of the original invalidate the will, and hence, denial of the probate?HELD: NO.1. The inadvertent failure of one of the witnesses to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify the denial of the probate. The impossibility of substituting this page is cured since the testatrix and two other witnesses signed the defective page, and that the document bears the imprint of the seal of the notary public before whom the testament was ratified by the testatrix and all three witnesses.2. The law should not be strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she has no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existence, and the evidence on record attests to the full observance of the statutory requisites.3. Despite the literal tenor of the law, the Court has held that in other cases that;a. a testament with the only page signed at its foot by the testator and witnesses but not in the left margin could be probated(Abangan vs. Abangan)b. despite the requirement of correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro).These precedents exemplify the Courts policy to require satisfaction of the legal requirements in order to guard against fraud and bad faith, but without undue or unnecessary curtailment of the testamentary privilege.4. The appellants also argued that since the original of the will is in existence and available, the duplicate is not entitled to probate. Since they opposed the probate of the original because of the lacking signature on page 3, it is easily discerned that the oppositors-appellants run into a dilemma. If the original is defective and invalid, then in the law, there is no other will but the duly signed carbon duplicate, and the same is probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional.

Case # 29 - Cruz vs. VillasorAGAPITA N. CRUZ,petitioner,vs.HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY,respondents.Civil Code Provisions:Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of CourtFACTS:1. The only question presented for determination, on which the decision of this case hinges, is whether the supposed Last Will and Testament of Valente Z. Cruz (Cruz) was executed in accordance with: Art. 805- which states at at least three credible witnesses must attest and subscribe to the will and Art. 806- requiring the testator and the witnesses to acknowledge the will before a notary public.2. Of the three instrumental witnesses on the supposed Last Will and Testament of Cruz, one of them, Atty. Angel Teves (Teves), acted also as the notary public before whom the will was supposed to have been acknowledged. The petitioner argues that as a result thereof, the will has only two witnesses who appeared before the notary public to acknowledge the will.3. The respondent, Lugay, who is supposed to execute the will, stated that there was substantial compliance with the legal requirement of three attesting witnesses, even if one of them acted as a notary public based on American jurisprudence.ISSUE: Can the notary public be considered as the third attesting witness?HELD: No. The probate of the Last will and Testament of Cruz is declared not valid and set aside.1. The notary public cannot acknowledge before himself his having signed the will. If the third witness is the notary public himself, he would have to avow, assent or admit as his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will.2. The function of a notary public is to guard against any illegal or immoral arrangements. That would be defeated if he was also the attesting witness. He would be interested in sustaining the validity of the will, as it directly involves himself and the validity of his own act. It would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud.3. American jurisprudence cannot be used here for we are in Philippine jurisdiction. In the U.S., the notary public and witnesses referred to in several jurisprudence merely acted as instrumental, subscribing or attesting witnesses and not as acknowledging witnesses. Here, the notary public acted not only as attesting witness but also as acknowledging witness.4. In allowing the notary public to act as third witness, or one of the attesting and acknowledging witness, would have the effect of only two attesting witnesses to the will which is violative of Art. 805 requiring at least 3 witnesses and Art. 806 which requires the testator and the required number of witnesses to appear before the notary public to acknowledge the will.

Case # 49 Roberts v. LeonidasETHEL GRIMM ROBERTS V. HON. LEONIDAS, MAXINE TATE-GRIMM ET AL, 129 SCRA 33 (1984)FACTS: Edward Grimm was an American residing in Manila until his death in 1977. He was survived by his 2nd wife (Maxine), their two children (Pete and Linda), and by his two children from a 1st marriage (Juanita and Ethel) which ended in divorce1. Grimm executed two wills in San Francisco, CA in January 1959. One will disposed of his Philippine estate described as conjugal property of himself and his 2nd wife. The second will disposed of his estate outside the Philippines.2. The two wills and a codicil were presented for probate in Utah by Maxine in March 1978. Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in January 1978. Subsequently, the Utah court admitted the two wills and a codicil for probate in April 1978, and was issued upon consideration of the stipulation between the lawyers fro Maxine and Ethel3. In April 1978, Maxine and Ethel, with knowledge of the intestate proceeding in Manila, entered into an agreement in Utah regarding the estate. The agreement provided that Maxine, Pete and Ethel would be designated as personal representatives (administrators) of Grimms Philippine estate and that Maxines conjugal share in the estate should be reserved for her which would not be less than $1.5 million plus the homes in Utah and Sta. Mesa.4. Manila Intestate Proceedings: Maxine filed an opposition and motion to dismiss the intestate proceeding in Manila on the ground of pendency of the Utah probate proceedings. However, pursuant to the compromise agreement, Maxine withdrew the opposition and motion to dismiss. The court ignored the will found in the record. The estate was partitioned.5. In 1980, Maxine filed a petition praying for the probate of the two wills (which was already probated in Utah), that the partition approved by the intestate court be set aside, and that Maxine be named executrix, and Ethel be ordered to account for the properties received by them and return the same to Maxine. Maxine alleged that they were defrauded due to the machinations of the Ethel, that the compromise agreement was illegal and the intestate proceeding was void because Grimm died testate so the partition was contrary to the decedents wills.6. Ethel filed a motion to dismiss the petition which was denied by respondent Judge for lack of merit

ISSUE: WON respondent Judge committed grave abuse of discretion in denying Ethels motion to dismiss

HELD: No. A testate proceeding is proper in this case because Grimm died with two wills and no will shall pass either real or personal property unless it is proved and allowed.

The probate of the will is mandatory. It is anomalous that the estate of a person who died testate should be settled through an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases.

ROBERTS v LEONIDASNo. L-55509, 27 April 1984129 SCRA 33

Probate of a will is mandatory in order that the said will may pass property. In this case, the Supreme Court ruled that "it is anomalous that the estate of a person who died testate should be settled in an intestate proceeding." Accordingly, the Court ordered the consolidation of the testate and intestate proceedings, and for the judge hearing the testate case to continue hearing the consolidated cases.

In de Borja v vda de Borja, infra, the Supreme Court allowed and in fact enforced the compromise agreement between a stepson and his stepmother, despite the fact that the tenor of the compromise agreement is not consistent with the tenor of the will of the testator. It is important to distinguish the variance between the ruling in de Borja and the ruling in Roberts. Based on the dictum of the Supreme Court in these two cases, is it lawful for the heirs to divide the estate in accordance with a freely negotiated compromise agreement and in the process disregard the terms of the will? Or will such a compromise agreement result in an "anomalous" situation deplored by the Supreme Court in Roberts?

Aquino, J.:

xxx

Antecedents - Edward M. Grimm, an American resident of Manila, died at 78 in the Makati Medical Center on November 27, 1977. He was survived by his second wife, Maxine Tate Grimm, and their two children, named Edward Miller Grimm II (Pete) and Linda Grimm, and by Juanita Grimm Morris and Ethel Grimm Roberts (McFadden), his two children by a first marriage which ended in divorce.

He executed on January 23, 1959 two wills in San Francisco, California. One will disposed of his Philippine estate which he described as conjugal property of himself and his second wife. The second will deposed of his estate outside the Philippines.

In both wills, the second wife and two children were favored. The two children of the first marriage were given their legitimes in the will disposing of the estate situated in this country. In the will dealing with his property outside this country, the testator said:

I purposely have made no provision in this will for my daughter, Juanita Grimm Morris, or my daughter Elsa Grimm McFadden (Ethel Grimm Roberts), because I have provided for each of them in a separate will disposing of my Philippine property.

The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. LaVar Tate on March 7, 1978 in Probate No. 3720 of the Third Judicial District Court of Tooele County, Utah. uanita Grimm Morris of Cupertino, California, and Mrs. Roberts of 15 C. Benitez Street, Horseshoe Village, Quezon city were notified of the probate proceedings.

Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in January 1978. In its order dated April 10, 1978, the Third Judicial District Court admitted to probate the two wills and the codicil. It was issued upon consideration of the stipulation dated April 14, 1978 "by and between the attorneys for Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E. LaVar Tate, Juanita Kegley Grimm (first wife), Juanita Grimm Morris and Ethel Grimm Roberts.

Two weeks later, or on April 25, 1978, Maxine and her two children, Linda and Pete, as the first parties, and Ethel, Juanita Grimm Morris and their mother Juanita Kegley Grimm, as the second parties, without knowledge of the intestate proceeding in Manila, entered into a compromise agreement in Utah regarding the estate. x x x. Intestate Proceeding No. 113024 - At this juncture, it should be stated that forty-three days after Grimm's death, or January 9, 1978, his daughters of the first marriage, Ethel, 49, through lawyers Deogracias T. Reyes and Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First Instance intestate proceedings no. 113024 for the settlement of his estate. She was named special administratrix.

On March 11, the second wife, Maxine, through the Angara Law Office, filed an opposition and motion to dismiss the intestate proceeding on the ground of the pendency in Utah of a proceeding for the probate of Grimm's will. She also moved that she be appointed special administratrix. She submitted to the court a copy of Grimm's will disposing of his Philippine estate. x x x.

The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new lawyer, William C. Limqueco (partner of Gerardo B. Macaraeg), withdrew the opposition and motion to dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint administrators. Apparently, this was done pursuant to the aforementioned Utah compromise agreement. The court ignored the will already found in the record.

xxx

Acting on the declaration of heirs and project of partition signed and filed by lawyers Limqueco and Macaraeg (not signed by Maxine and her two children), Judge Conrado M. Molina in his order of July 27, 1979 adjudicated to Maxine one-half (4/8) of the decedent's Philippine estate and one eighth (1/8) each to his four children or 12 1/2%. No mention at all was made of the will in that order.

Six days later, or on August 2, Maxine and her two children replaced Limqueco with Octavio del Callar as their lawyer, who on August 9, moved to defer approval of the project of partition. The court considered the motion moot and academic considering that it had already approved the declaration of heirs and project of partition.

xxx

After November 1979, or a period of more than five months, there was no movement or activity in the intestate case. On April 18, 1980, Juanita Grimm Morris, through Ethel's lawyers, filed a motion for accounting "so that the Estate properties can be partitioned among the heirs and the present intestate estate be closed." Del Callar, Maxine's lawyer, was notified of that motion.

xxx

Petition to annul partition and testate proceeding no. 134559 - On September 8, 1980, Rogelio A. Vinluan of the Angara Law Firm, in behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower court a petition praying for the probate of Grimm's two wills (already probated in Utah), that the 1979 partition approved by the intestate court be set aside and the letters of administration revoked, that Maxine be appointed executrix and that Ethel and Juanita Morris be ordered to account for the properties received by them and to return the same to Maxine.

Grimm's second wife and two children alleged that they were defrauded due to the machinations of the Roberts spouses, that the 1978 Utah compromise agreement was illegal, that the intestate proceeding is void because Grimm died testate and that the partition was contrary to the decedent's wills.

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his order of October 27, 1980. Ethel then filed a petition for certiorari and prohibition in this Court, praying that the testate proceeding be dismissed, or alternatively, that the two proceedings be consolidated and heard in Branch 20 and that the matter of annulment of the Utah compromise agreement be heard prior to the petition for probate.

Ruling - We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's motion to dismiss.

A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either real or personal property unless it is proved and allowed."

The probate of the will is mandatory. It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases.

Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer to the petition unless she considers her motion to dismiss and other pleadings sufficient for the purpose. Juanita G. Morris, who appeared in the intestate case, should be served with copies of orders, notices and other papers in the testate case.

WHEREFORE, the petition is dismissed. The temporary restraining order is dissolved. No Costs.

Makasiar (Chairman), Guerrero and de Castro, JJ., concur. Concepcion, Jr. and Abad Santos, JJ., no part. Escolin, J., in the result.

Case # 50 Nepomuceno v. CANEPOMUCENO V. CA, 139 SCRA 206 (1985)

DOCTRINE:While the general rule is that the probate court's area of inquiry is limited to the extrinsic validity of the will, practical considerations may compel the probate court to pass upon matters of intrinsic validity. In particular, where a testamentary provision is void on its face, a probate court, in accordance with the ruling in Nuguid v Nuguid, pass upon such provision for the purpose of declaring its nullity

FACTS: In the last will and testament of Martin Jugo, he named and appointed the petitioner Sofia Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner.1. The petitioner filed a petition for the probate of the Will, but the legal wife and children filed an opposition.2. The lower court denied the probate of the will on the ground that the testator admitted to cohabiting with Nepomuceno. The wills admission to probate was deemed an idle exercise since based on the face of the will, the invalidity of the instrinsic provisions is evident.3. The appellate court, however, declared the will to be valid except that the devise in favour of the petitioner is null and void. Petitioner filed a motion for reconsideration, but such was denied.

ISSUES: 1. WON the respondent court acted in excess of its jurisdiction when after declaring the last will and testament of the testator validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner.2. Is the disposition in favor of the petitioner valid?

HELD: FIRST ISSUE: The court acted within its jurisdictionThe general rule is that in probate proceedings, the courts area of inquiry is limited to an examination and resolution of the extrinsic validity of the will. The rule, however, is not inflexible and absolute. Given the exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the Will.

The trial court acted correctly in passing upon the wills intrinsic validity even before its formal validity has 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.SECOND ISSUE: Validity of the disposition to the petitioner:Article 739 of the Civil Code provides:The following donations shall be void:(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.Article 1028 of the Civil Code provides:The prohibitions mentioned in Article 739, concerning donationsinter vivosshall apply to testamentary provisions.

The records of the case do not sustain a finding of innocence or good faith on the part of Nepomuceno:a. The last will and testament itself expressly admits its indubitably on its face the meretricious relationship between the testator and petitioner, the deviseeb. Petitioner herself, initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence. In short, the parties themselves duelled on the intrinsic validity of the legacy given in the will to petitioner by the testator at the start of the proceedings.Whether or not petitioner knew that the testator, Jugo, the man she had lived with as a husband, was already married was important . When the court ruled that Jugo and the petitioner were guilty of adultery and concubinage, it was a finding that the petitioner was not the innocent woman she pretended to be.

The prohibition in Art. 739 is against the making a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot given even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage.

DISPOSITION: WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.

Case # 51 Pascual v. De La CruzPASCUAL V. DELA CRUZ, 28 SCRA 421 (1969)

DOCTRINE: Undue and improper pressure and influence as well as fraud are grounds to disallow a will. These twin grounds were invoked in this case. While the Court considered only the issue of improper influence and pressure, and summarized the rulings thereon, it is equally important to consider the effect of alleging undue influence and pressure simultaneously with fraud.

FACTS: On 2 January 1960, Catalina de la Cruz, single and without any surviving descendant or ascendant, died at the age of 89 in her residence at San Roque, Navotas, Rizal. On 14 January 1960, a petition for the probate of her alleged will was filed in the Court of First Instance of Rizal by Andres Pascual, who was named in the said will as executor and sole heir of the decedent.1. Pedro de la Cruz and 26 other nephews and nieces of the late Catalina de la Cruz contested the validity of the will on the grounds that the formalities required by law were not complied with; that the testatrix was mentally incapable of disposing of her properties by will at the time of its execution; that the will was procured by undue and improper pressure and influence on the part of the petitioner; and that the signature of the testatrix was obtained through fraud.

ISSUE: WON under the circumstances, undue and improper pressure and influence as well as fraud are grounds to disallow a will.

HELD: No.

Petitioner, Andres Pascual, although not related by blood to the deceased Catalina de la Cruz, was definitely not a stranger to the latter for she considered him as her own son. As a matter of fact it was not only Catalina de la Cruz who loved and cared for Andres Pascual but also her sisters held him with affection so much so that Catalina's sister, Florentina Cruz, made him also her sole heir to her property in her will without any objection from Catalina and Valentina Cruz.

The basic principles of undue pressure and influence as laid down by the jurisprudence on this Court: that to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own (Coso v Fernandez Deza, 42 Phil 596); Icasiano v Icasiano, L-18979, 30 June 1964.

The circumstances marshaled by the contestants certainly fail to establish actual undue influence and improper pressure exercised on the testatrix by the proponent. Their main reliance is on the assertion of the latter, in the course of his testimony, that the deceased "did not like to sign anything unless I knew it," which does not amount to proof that she would sign anything that proponent desired. On the contrary, the evidence of contestants-appellants, that proponent purchased a building in Manila for the testatrix, placed the title in his name, but caused the name "Catalina de la Cruz" to be painted therein in bold letters to mislead the deceased, even if true, demonstrates that proponent's influence was not such as to overpower and destroy the free will of the testatrix. Because if the mind of the latter were really subjugated by him to the extent pictured by the contestants, then proponent had no need to recourse to the deception averred.

Nor is the fact that it was proponent, and not the testatrix who asked Dr. Sanchez to be one of the instrumental witnesses evidence of such undue influence, for the reason that the rheumatism of the testatrix made it difficult for her to look for all the witnesses. That she did not resort to relative or friend is, likewise, explainable: it would have meant the disclosure of the terms of her will to those interested in her succession but who were not favored by her, thereby exposing her to unpleasant importunity and recrimination that an aged person would naturally seek to avoid. The natural desire to keep the making of a will secret can, likewise, account for the failure to probate the testament during her lifetime.Pedro de la cruz and 26 other nephews and nieces of the late catalina de la cruzfell short of establishing actual exercise of improper pressure or influence. Considering that the testatrix considered proponent as her own son, to the extent that she expressed no objection to his being made sole heir of her sister, Florentina Cruz, in derogation of her own rights, we find nothing abnormal in her instituting proponent also as her own beneficiary.

The probate of the will was allowed.Case # 56 Dizon-Rivera v. DizonMARINA DIZON-RIVERA, executrix-appellee, vs.ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON, ANGELINA DIZON and LILIA DIZON, oppositors-appellants.33 SCRA 554 (1970)

The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative. Of the two projects of partition submitted by the contending parties, that project which will give the greatest effect to the testamentary disposition should be adopted. Thus, where the testatrix enumerated the specific properties to be given to each compulsory heir and the testatrix repeatedly used the words "I bequeath" was interpreted to mean a partition of the estate by an act mortis causa, rather than as an attempt on her part to give such properties as devises to the designated beneficiaries. Accordingly, the specific properties assigned to each compulsory heir were deemed to be in full or partial payment of legitime, rather than a distribution in the nature of devises.

The tenor of the decision notwithstanding, it is important to note the provision of Article 886 which reads: "Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs." Article 886 is couched upon a negative prohibition "cannot dispose of". In the will under consideration, the testatrix disposed of practically her entire estate by designating a beneficiary for each property. Necessarily, the testamentary dispositions included that portion of the estate called "legitime." It is thus imperative to reconcile the tenor of Article 1080 (which is the basis of the following decision) with Article 886.

FACTS: In 1961, Agripina Valdez (widow) died and was survived by seven compulsory heirs: 6 legitimate children and 1 legitimate granddaughter. Marina is the appellee while the others were the appellants1. Valdez left a w ill executed in February 1960 and written in Pampango. The beneficiaries were the 7 compulsory heirs and six grandchildren 2. In her will, Valdez distributed and disposed of her properties (assessed at P1.8 million) which included real and personal properties and shares of stocks at Pampanga Sugar Central Devt Co3. During the probate proceedings, Marina (appellee) was name the executor of the deceaseds estate4. In her will, Valdez commanded that her property be divided in accordance with her testamentary disposition where she devised and bequeathed specific real properties comprising almost her entire estate among her heirs. Based on the partition, Marina and Tomas were to receive more than the other heirs5. Subsequently, Marina filed her project of partition adjudicating the estate as follows:a. the legitime computed for each compulsory heir was P129,254.96, which was comprised of cash and/or properties specifically given to them based on the willb. Marina and Tomas were adjudicated the properties that they received in the will less the cash/properties to complete their respective legitime6. The other heirs opposed the partition and proposed a counter-partition on the estate where Marina and Tomas were to receive considerably less7. The lower court approved the executors project of partition citing that Art 906 and 907 NCC specifically provide that when the legitime is impaired or prejudiced, the same shall be completed. The court cited that if the proposition of the oppositors was upheld, it will substantially result in a distribution of intestacy which is a violation of Art 791 NCC

ISSUE: WON the last will of the deceased is to be considered controlling in this case

HELD: Yes. Art 788 and 791 NCC provide that "If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred" and "The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy." In Villanueva v. Juico, the SC held that "the intentions and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise."

The testator's wishes and intention constitute the first and principal law in the matter of testaments, and to paraphrase an early decision of the Supreme Court of Spain, when expressed clearly and precisely in his last will, amount to the only law whose mandate must imperatively be faithfully obeyed and complied with by his executors, heirs and devisees and legatees, and neither these interested parties nor the courts may substitute their own criterion for the testator's will. Thus, the oppositors proposition for partition cannot be given effect.

ON PARTITION: The testamentary disposition of the decedent was in the nature of a partition. In her will, the decedent noted that after commanding that upon her death all her obligations as well as the expenses of her last illness and funeral and the expenses for the probate of her last will and for the administration of her property in accordance with law, be paid, she expressly provided that "it is my wish and I command that my property be divided" in accordance with the dispositions immediately thereafter following, whereby she specified each real property in her estate and designated the particular heir among her seven compulsory heirs and seven other grandchildren to whom she bequeathed the same. This was a valid partition of her estate, as contemplated and authorized in the first paragraph of Art 1080 NCC, providing that "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."

CAB: This was properly complied with in the executors project of partition as the oppositors were adjudicated the properties respectively distributed and assigned to them by the decedent in her will and the differential to complete their legitimes were taken from the cash and/or properties of Marina and Tomas, who were obviously favored by the decedent in her will.

Aside from the provisions of Art 906 and 907, other codal provisions support the executrix-appellee's project of partition as approved by the lower court rather than the counter-project of partition proposed by oppositors-appellants whereby they would reduce the testamentary disposition or partition made by the testatrix to one-half and limit the same, which they would consider as mere devises and legacies, to one-half of the estate as the disposable free portion, and apply the other half of the estate to payment of the legitimes of the seven compulsory heirs. Oppositors' proposal would amount substantially to a distribution by intestacy and pro tanto nullify the testatrix's will, contrary to Art 791 NCC.

EFFECT OF PARTITION: 'A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him", from the death of her ancestors, subject to rights and obligations of the latter, and, she cannot be deprived of her rights thereto except by the methods provided for by law

DEVISES: The adjudication and assignments in the testatrix's will of specific properties to specific heirs cannot be considered all devises, for it clearly appears from the whole context of the will and the dispositions by the testatrix of her whole estate (save for some small properties of little value already noted at the beginning of this opinion) that her clear intention was to partition her whole estate through her will. Furthermore, the testatrix's intent that her testamentary dispositions were by way of adjudications to the beneficiaries as heirs and not as mere devisees, and that said dispositions were therefore on account of the respective legitimes of the compulsory heirs is expressly borne out in the fourth paragraph of her will, immediately following her testamentary adjudications in the third paragraph in this wise: "FOURTH: I likewise command that in case any of those I named as my heirs in this testament any of them shall die before I do, his forced heirs under the law enforced at the time of my death shall inherit the properties I bequeath to said deceased."

COLLATION: Collation is not applicable in this case because here, distribution and partition of the entire estate was made by the testatrix, without her having made any previous donations during her lifetime which would require collation to determine the legitime of each heir nor having left merely some properties by will which would call for the application of Art 1061 to 1063 of the Civil Code on collation.

CAN THE OPPOSITORS DEMAND MORE THAN THEIR LEGITIME? No. Their right was merely to demand completion of their legitime under Article 906 of the Civil Code and this has been complied with in the approved project of partition, and they can no longer demand a further share from the remaining portion of the estate, as bequeathed and partitioned by the testatrix principally to the executrix-appellee.

Case # 57 De Roma v. CAG.R. No. L-46903 July 23, 1987BUHAY DE ROMA,petitioner,vs.THE HONORABLE COURT OF APPEALS and FELICIDAD CARINGAL, as Guardian of Rosalinda de Roma,respondents.FACTS:1. Candelaria de Roma had two legally adopted daughters, Buhay de Roma and Rosalinda de Roma. She died intestate on April 30, 1971, and administration proceedings were instituted in the Court of First Instance of Laguna by the private respondent as guardian of Rosalinda. Buhay was appointed administratrix and in due time filed an inventory of the estate. This was opposed by Rosalinda on the ground that certain properties earlier donated by Candelaria to Buhay, and the fruits thereof, had not been included.12. The properties in question consisted of seven parcels of coconut land worth P10,297.50.2There is no dispute regarding their evaluation; what the parties cannot agree upon is whether these lands are subject to collation. The private respondent rigorously argues that it is, conformably to Article 1061 of the Civil Code. Buhay, for her part, citing Article 1062, claims she has no obligation to collate because the decedent prohibited such collation and the donation was not officious.The two articles provide as follows:Article 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition.Article 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donor should repudiate the inheritance, unless the donation should be reduced as inofficious.3. The trial court resolved the issue in favor of the petitioner. The donation did not impair the legitimes of the two adopted daughters and such donation was imputed to the free portion of Candelarias estate. The CA reversed the decision holding that the deed of donation contained no express prohibition to collate as an exception to Art. 1962. It ordered the collation and the equal division of the net estate of the decedent, including the donated property between Buhay and Rosalinda.4. The deed of donation stated:ipinagkakaloob at inililipat sa nabanggit na BUHAY DE ROMA, sa kanyang mga kahalili at tagapagmana, sa pamamagitan ng pagbibigay na di na mababawing muli, ang lahat ng mga lagay ng lupa na sinasabi sa itaas, sa ilalim ng kasunduan na ngayon pa ay siya na ang nagmamay-aring tunay ng mga lupang ito at kanya nang maaring ipalipat ang mga hoja declaratoria ng mga lupang ito sa kanyang pangalan, datapwa't samantalang ako ay nabubuhay, ay ako rin ang makikinabang sa mga mapuputi at mamomosesion sa mga nasabing lupa;IKATLO. Na pinagtibay ko na ako ay marami pang ibang mga pag-aari sa sapat pang aking ikabuhay at sa pagbibigay kong ito ay hindi masisira ang legitimate ng mga tao na dapat magmana sa akin, sapagkat ang mga lupang sinasabi sa itaas ay bahagui ng aking kabuhayan na ako ay may layang ipamigay kahit na kaninong tao na kung tawagin ay Libre Disposicion.ISSUE: WON there was an express prohibition to collateHELD: No express prohibition to collate.1. The intention to exempt from collation should be expressed plainly and equivocally as an exception to the general rule announced in Art. 1962. Anything less than such express prohibition will not suffice under the clear language of Art. 1062. The suggestion that there was an implied prohibition because the properties donated were imputable to the free portion of the decedents estate merits little consideration. Imputation is not the question here, nor is it claimed that the disputed donation is officious.2. The fact that a donation is irrevocable does not necessarily exempt the subject thereof from the collation required under Art. 1061. We surmise that We agree with the respondent court that there is nothing in the above provisions expressly prohibiting the collation of the donated properties. As the said court correctly observed, the phrase "sa pamamagitan ng pagbibigay na di na mababawing muli" merely described the donation as "irrevocable" and should not be construed as an express prohibition against collation.6The fact that a donation is irrevocable does not necessarily exempt the subject thereof from the collation required under Article 1061.3. We surmise from the use of such terms as "legitime" and "free portion" in the deed of donation that it was prepared by a lawyer, and we may also presume he understood the legal consequences of the donation being made. It is reasonable to suppose, given the precise language of the document, that he would have included therein an express prohibition to collate if that had been the donor's intention.4. The intention to exempt from collation should be expressed plainly and unequivocally as an exception to the general rule announced in Article 1062. Absent such a clear indication of that intention, we apply not the exception but the rule, which is categorical enough.Dispositive: WHEREFORE, the appealed decision is AFFIRMEDin toto, with costs against the petitioner. It is so ordered.

Case # 60 Aznar v. DuncanIN THE MATTER OF THE INTESTATE ESTATE OF EDWARD CHRISTENSEN, ADOLFO AZNAR (EXECUTOR) V. LUCY DUNCAN AND HELEN CHRISTENSEN, 17 SCRA 590 (1966)DOCTRINE: The concept of total omission from the hereditary estate is further explained in this case. While the traditional concept of omission, based on Roman Law, means that the compulsory heir was not instituted as an heir, the same was abandoned so that if a compulsory heir were given a legacy by the testator in the will (without instituting him or her as an heir), the said compulsory heir can no longer claim the benefit of Article 854.One point deserves some consideration. Admittedly, the testator was a citizen of the State of California. Under the present Civil Code, "testate and intestate succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions shall be regulated by the national law of the person whose succession is under consideration." (Article 16, Civil Code) In the foregoing case, the estate of the testator was distributed in accordance with Philippine law, taking into account the fact that Article 854 was made to apply. This point needs clarification.FACTS: Edward Christensen was a citizen of California and was domiciled in the Philippines. When he died he left a will which alleged that he had only one child (Lucy Duncan), and that he was giving a devise of P3,600 to Helen Christensen (whom he alleged was not related to him).1. In the probate proceedings, the court ruled that Helen was a natural child of the deceased and that the properties of the decedent are to be divided equally between Helen and Lucy pursuant to the project of partition submitted by the administrator.2. Lucy argued that this is not a case of preterition, but is governed by Art 906 NCC which states that: Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same may be fully satisfied. Moreover, considering the provisions of the will whereby the testator expressly denied his relationship with Helen, but left her to a legacy although less than the amount of her legitime, she was in effect defectively disinherited within the meaning of Art 918 NCC. Thus, under Arts 906 and 918, Helen is only entitled to her legitime, and not to a share equal to that of Lucy

ISSUE: Whether the estate should be divided equally among the two children (Art 854) OR whether Lucys share should just be reduced to meet the legitime of Helen (Art 906)

HELD: Helen should only be given her legitime since there was no preterition. Manresa defines preterition as the omission of the heir of the will, either by not naming him at all, or while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, not assigning to him some part of the properties.

The decision in Neri v. Akutin is not applicable, because it referred to a will where "the testator left all his property by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by his first marriage, he left nothing to them, or at least, some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.

Case # 61 Nuguid v. NuguidNUGUID V. NUGUID, 17 SCRA 449 (1966)

DOCTRINE: As a general rule, the area of inquiry of a probate court is limited to the testamentary capacity of the testator and the due execution of the will. However, if it should appear on the face of the will that the sole disposition is intrinsically invalidity, and that nothing is gained from an inquiry into extrinsic validity, then a probe into the testamentary disposition, and the consequential invalidation thereof is justified for practical considerations. While Article 854 annuls merely the institution of heir, the court is justified in declaring the entire will void if the only testamentary disposition in the questioned will is the institution of the universal heir. In such a case, the effect of the nullification of the testamentary disposition wouldbe the same as the nullification of the will itself.

FACTS: Rosario Nuguid died on December 30, 1962, single, without descendants, legitime or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz SalongaNuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.

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

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

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

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

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

ISSUE: WON the will is a complete nullity.

HELD: Yes.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of property, do hereby give, devise and bequeath all of the property which I may have when I die to my beloved sister RemediosNuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventeenth day of November, nineteen hundred and fifty-one.

Sgd. (Illegible)T/ ROSARIO NUGUID

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

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

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with. (Citations omitted.)

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

The statement in Article 854 that, annulment notwithstanding, 'the devices and legacies shall be valid insofar as they are not inofficious." Legacies and devices merit consideration only when they are so expressly given as such in a will.

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

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

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

Case # 62 Reyes v. Barreto-DatuREYES V. BARRETTO-DATU, 19 SCRA 85 (1967)

DOCTRINE: Preterition is the omission of one, some or all compulsory heirs in the direct line, whether living at the time of the death of the testator, or born subsequent thereto. Among other things, Reyes holds that omission from the inheritance, as an element of preterition, must be a total omission, such that if a compulsory heir in the direct line received something from the testator under the terms of the will, such heir cannot be considered preterited

FACTS: Bibiano Barretto was married to Maria Gerardo. During their lifetime they acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan.1. When BibianoBarretto died on February 18, 1936, in the City of Manila, he left his share of these properties in a will to SaludBarretto (Salud), mother of plaintiff's wards, and Lucia Milagros Barretto (Milagros) and a small portion as legacies to his two sisters Rosa Barretto and FelisaBarretto and his nephew and nieces. The usufruct of the fishpond situated in barrio San Roque, Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow, Maria Gerard. In the meantime, Maria Gerardo was appointed administratrix. By virtue thereof, she prepared a project of partition, which was signed by her in her own behalf and as guardian of the minor Milagros Barretto. Said project of partition was approved by the Court of First Instance of Manila. The distribution of the estate and the delivery of the shares of the heirs followed. As a consequence, SaludBarretto took immediate possession of her share and secured the cancellation of the original certificates of title and the issuance of new titles in her own name.2. Maria Gerardo died and upon her death, it was discovered that she executed two will. In the first will, she instituted Salud and Milagros as her heirs. In the second will, she revoked the same and left all her properties in favour of Milagros alone. The later will was allowed and the first rejected.3. In rejecting the first will presented by Tirso Reyes, husband of the deceasedSalud, as guardian of the children, it was determined by the lower court that Salud was not a child of Maria Gerardo and her husband, Bibiano. This ruling was appealed to the Supreme Court, which affirmed the same.4. Having thus lost this fight for a share in the estate of Maria Gerardo as a legitimate heir of Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased BibianoBarretto, which was given in usufruct to his widow Maria Gerardo (fishpond property). Hence, this action for the recovery of one-half portion, thereof.5. Milagros then moved to declare the project of partition submitted in the proceedings for the settlement of the estate of Bibiano to be null and void ab initio because the Distributee, SaludBarretto, was not a daughter of the Sps. The nullity of the project was based on Art. 1081 of the Civil Code of 1889 which provided that :A partition in which a person was believed to be an heir, without being so, has been been included, shall be null and void.The Court ordered the plaintiff to return the properties received under the project of partition.ISSUE: WON the partition from which Salud acquired the fishpond is void ab initio and that Salud did not acquire title thereto

HELD: NO1. SaludBarretto admittedly had been instituted as an heir in the late BibianoBarretto's last will and testament together with defendant Milagros; hence, the partition had between them could not be one such had with a party who was believed to be an heir without really being one, and was not null and void under said article. The legal precept (Article 1081) does not speak of children, or descendants, but of heirs(without distinction between forced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament; for BibianoBarretto was at liberty to assign the free portion of his estate to whomsoever he chose. While the share () assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason cease to be a testamentary heir of BibianoBarretto.2. Where the testator allotted in his will to his legitimate daughter a share less than her legitime, such circumstance would not invalidate the institution of a stranger as an heir, since there was no preterition or total omission of the forced heir.3. Where a partition was made between two persons instituted as heirs in the will, and one of them was found out later not to be the testators daughter, while the other was really his daughter, it cannot be said that the partition was a void compromise on the civil status of the person who was not the testators daughter. At the time of the partition, the civil status of that person was not being questioned. There can be no compromise on a matter that was not an issue. While the law outlaws a compromise over civil status, it does not forbid a settlement by the parties regarding the share that should correspond to the claimant to the hereditary estate.4. A project of partition is merely a proposal for the distribution of the hereditary estate, which the court may accept or reject. It is the court alone that makes the distribution of the estate and determines the persons entitled thereto. It is the final judicial decree of distribution that vests title in the distributees. If the decree was erroneous, it should have been corrected by an opportune appeal; but once it had become final, its binding effect is like that of any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud. Where the court has validly issued a decree of distribution and the same has become final, the validity or invalidity of the project of partition becomes irrelevant.5. A distribution in the decedents will, made according to his will should be respected. The fact that one of the distributees was a minor (Milagros) at the time the court issued the decree of distribution does not imply that the court had no jurisdiction to enter the decree of distribution. The proceeding for the settlement of a decedents estate is a proceeding in rem. It is binding on the distributee who was represented by her mother as guardian.6. Where in a partition between two instituted heirs, one of them did not know that she was not really the child of the testator, it cannot be said that she defrauded the other heir who was the testators daughter. At any rate, relief on the ground of fraud must be obtained within 4 years from its discovery. When Milagros was 16 years old in 1939, when the fraud was allegedly perpetrated and she became of age in 1944, and became award of the fraud in 1946, her action in 1956 to set aside the partition was clearly barred.

Case # 64 Balanay v. MartinezBALANAY, JR. V. MARTINEZ, 64 SCRA 454 (1975)DOCTRINE: Balanay stresses the jurisdiction of the probate court. Unless the nullity of the will is patent on its face, the probate court should first pass upon the extrinsic validity of the will before passing upon its substantive validity. Hence, the distinction between this case and NuguidUpon the other hand, while the court correctly modified the husband's right to waive his hereditary right with respect to the estate of the deceased spouse, and his right to waive his half share in the conjugal estate, pursuant to the provisions of Articles 750 and 752 of the Civil Code, the court was silent on the validity of the husband's conformity to the distribution of the conjugal estate in accordance with the terms of the will of the wife. Obviously, the court assumed the validity of the renunciation of the husband of his share in the conjugal estate. Such waiver, however, may fall into one of two possible categories, i.e., inter vivos or mortis causa. If it was a waiver effective inter vivos, then it would have amounted to a donation to inter vivos to the wife. That would have been illegal under existing laws. On the other hand, if it was a waiver mortis causa, then the formalities of a will should have been observed, failing which, the waiver would be void. Furthermore, the waiver mortis causa would have required the wife to survive the husband. In either case, the alleged waiver by the husband of his half share in the conjugal estate resulted in a transmission of property to the wife. And consequently, a characterization of such waiver along the parameters mentioned above is necessary and inescapable. The fundamental question, therefore, that demands an answer is whether or not a husband or wife could waive his or her share in the conjugal estate in favor of the other by an act inter vivos. We exclude, however, a waiver resulting from a successful petition for separation of property, and the liquidation of the conjugal partnership (or for that matter, the absolute community of property) resulting from the issuance of a decree of annulment or a decree of nullity.

It may be surmised that the validity of the waiver had to be assumed, properly or improperly, otherwise the case will fall under the provision of Article 784 which categorically states that the making of a will is strictly a personal act, and that the exercise of testamentary discretion cannot be delegated by a person to another. In any case, Balanay leaves many questions unanswered. Let alone the fact that the decision did not discuss why the husband was not preterited within the meaning of Article 854.

FACTS: Felix Balanay Jr. Appelaed the order of the CFI, 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 1. 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, namely, Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.2. Felix J. Balanay, Jr. filed in the lower court a petition.for the probate of his mother's notarial will. 3. 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.4. 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.5. Felix Balanay, Jr. attached 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.6. 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.7. Another lawyer appeared in the case, Atty. David O. Montana, claiming to be the lawyer of petitioner Felix Balanay, Jr. 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." Avelina B. Antonio and Delia B. Lanaban, thorugh Atty. Jose B. Guyo, manifested their conformity with the motion for the issuance of a notice to the creditor.8. The lower court, acting on the motions of Atty. Montana and Atty. Guyo assumed that the issuance of a notice to creditors was in order. It adopted the view of Attys. Montana and Guyo that the will was void. It dismissed the petition for probate and converted the testate proceeding into an intestate proceeding. 9. 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. Montana had no authority to withdraw the petition for the allowance of the will.

ISSUE: WON the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring the will void.

HELD: 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.

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"

The statement of the testatrix that she owned the "southern half" of the conjugal lands is contrary to law because, although she was a co-owner thereof, her share was inchoate and pro indiviso (Art. 143, Civil Code). But that illegal declaration does not nullify the entire will.

Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Art. 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. 1050(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.

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 the will shall only pass thereby, as if the testator had possessed 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 of 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 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. 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. 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. Case # 66 Acain v. CACONSTANTINO ACAIN V. IAC, VIRGINIA FERNANDEZ AND ROSA DIONGSON, 155 SCRA 100 (1983)DOCTRINE: Acain resolved once and for all the issue as to whether or not a surviving spouse could be preterited. This issue was not definitively answered in Balanay. In addition, Acain resolved that an adopted child may be preterited. This issue was not resolved in Maninang. The foregoing notwithstanding, the Court did not explain the reason why an adopted child (while given the same rights and obligations as a legitimate child under the provisions of P.D. 603) could be preterited. It must be noted that given the said provisions, the adopted child is not entitled to the right of representation, which is available to a legitimate child. It would seem, however, that with the provisions of the Family Code, specifically on the status of an adopted child, the preterition of an adopted child finds greater support.

FACTS: In May 1984, petitioner Acain filed with RTC Cebu a petition for the probate of the will of the late Nemesio Acain based on the premise that the decedent Nemesio left a will in which petitioner and his siblings were instituted as heirs. 1. The will was allegedly executed by Nemesio in February 1960 which was written in Bisaya and was not opposed by private respondents 2. In the will, Nemesio bequeathed all his properties to his brother Segundo on the condition that if Segundo predeceases Nemesio, said properties will be given to Segundos children (herein petitioner)3. Segundo predeceased before Nemesio. Thus, it is the children of Segundo who are claiming to be heirs, with Constantino as petitioner4. Private respondents, Virigina (legally adopted daughter of the decedent) and Rosa (decedents spouse) filed a motion to dismiss on the following grounds:a. The petitioner had no legal capacity to institute said proceedingsb. Petitioner is merely a universal heirc. The widow and the adopted daughter have been preterited 5. Said motion was denied by the trial judge.6. On appeal, IAC granted private respondents petition and ordered the trial court to dismiss the petition for probate of the will of Nemesio7. Petitioner argues that:a. The authority of the probate court is limited only to inquiring into the intrinsic validity of the will sought to be probated, and it cannot pass upon the intrinsic validity therof before it is admitted to probateb. The preterition mentioned in Art 854 NCC refers to preterition of compulsory heirs in the direct line and does not apply to private respondents who are not compulsory heirs in the direct line. Thus, their omission shall not annul the institution of heirs

ISSUE: WON private respondents have been preterited

HELD: Yes. Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or though mentioned, they are neither instituted as heirs nor are expressly disinherited Insofar as the widow is concerned, Art 854 NCC may not apply as she does not ascend or descend from the testator although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir there is no preterition even if she is omitted from the inheritance for she is not in the direct line. However, the same thing cannot be said of the other respondent Virginia Fernandez, whose legal adoption by the testator has not been questioned by petitioner. Under Art 39 of P.D. No. 603 (Child and Youth Welfare Code), adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopted and makes the adopted person a legal heir of the adopter. It cannot be denied that she was totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.

Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado, mejora o donacion" The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.

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

ON THE JURISDICTION OF THE PROBATE COURTThe general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. Said court at this state of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will. For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added anxiety. The trial court 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

Case # 67 Edroso v. Sabalan

EDROSO VS. SABLAN (1913)Marcelina Edroso, petitioner-appellant,vs.Pablo and Basilio Sablan, opponents-appelleesDOCTRINE: A reservor's right to the reservable property is not just usufructuary in nature. The reservor, having inherited the reservable property from the prepositus, acquires ownership thereof, subject to a resolutory condition. Thus, a reservor has a registrable title to the property, and may institute land registration proceedings in the appropriate case.

It must be noted, however, that during the registration proceedings, the reservees should intervene solely for the purpose of ensuring that the reservable nature of the property is properly inscribed in the title. Otherwise, a clean title issued pursuant to a decree of registration, may in the proper case extinguish the reserva.

Mariano Ma. Rita

Victoriano Marcelina

Pedro

FACTS: Spouses Marcelina Edroso and Victoriano Sablan had a son named, Pedro who inherited two parcels of land upon the death of his father. 1. Subsequently, Pedro died,unmarried and without issue, the two parcels of land passed through inheritance tohis mother. Hence the hereditary title whereupon is based the application for registration of her ownership.2. The two uncles of Pedro, Pablo and Basilio Sablan (legitimate brothers of Victoriano) opposed the registration claiming that either the registration be denied or if granted to her, the right reserved by law to them be recorded in the registration of each parcel. 3. The Court of Land Registration denied the registration holding that the land in question partake of the nature of property required by law to be reserved and that in such a case application could only be presented jointly in the names of the mother and the said two uncles. Hence, this appeal.

ISSUE: Whether or not the property in question is in the nature of a reservable property.

HELD:

A very definite conclusion of law is that the hereditary title is one without a valuable consideration (gratuitous title), and it is so characterized in article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return for what he receives; and a very definite conclusion of law also is that the uncles are within the third degree of blood relationship.

Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which he had acquired without a valuable consideration - that is, by inheritance from another ascendant, his father Victoriano. Having acquired them by operation of law, she is obligated to reserve them intact for the claimants, who are uncles or relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature of property required by law to be reserved is therefore in accordance with the law.

The person required by article 811 to reserve the right, has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion, although under a condition subsequent. Clearly, he has, under an express provision of the law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and recoverable one. In a word, the legal title and dominion, even though under a condition reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do.

On the other hadnt, the relatives within the third degree in whose favor of the rightis reserved cannot dispose of the property, first because it is no way, either actuallyor constructively or formally, in their possession; and moreover, because they haveno title of ownership or of the fee simple which they can transmit to another, on thehypothesis that only when the person who must reserve the right should die beforethem will they acquire it.

The SC reverse the judgment appealed from, and in lieu thereof decide and declare that the applicant is entitled to register in her own name the two parcels of land which are the subject matter of the application, recording in the registration the right required by article 811 to be reserved to either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive her.

Case # 68 Seines v. Esparcia

CONSTANCIO SIENES, ET AL.,plaintiffs-appellants,vs.FIDEL ESPARCIA, ET AL.,defendants-appellee

Doctrine:The reserva creates a double resolutory condition: (1) the death of the reservor, and (2) the survival of the reservee at the time of the death of the reservor. While the decision refers to the first as a resolutory condition, it would seem more likely that the same is a term. In any event, the case confirms that either the reservor or any of the reservees may alienate the reservable property, and the final outcome of the sales will be determined by the timeliness or untimeliness of the death of the seller. It is important to distinguish the sales referred to herein from the concept of a double sale which is regulated in Article 1544 of the Civil Code.The subject matter of the two sales referred to herein must be clarified. It would seem fairly clear that the reservor sold the reservable land in question, since at the time of the said sale, she was the registered owner of the property and in fact in possession thereof. The sale executed by the reservees may be viewed from a different perspective. Since the reservor was still alive at the time of the said sale, it would seem that the reservees could not have validly sold the same parcel of land, which obviously was not theirs. If the said sale were to refer to the parcel of land, then the sale should properly be construed as a conditional sale - the condition being the survival of the seller-reservees upon the death of the reservor. Upon the other hand, it is also possible to construed this sale of the reservees as a sale of their inchoate right to acquire the property. Hence the subject matter of the sale would not be the reservable land, but the rights of the reservees thereto, which is conditional.

Teresa Saturnino AndreaSps. Sienes Agaton Francisco Fernando PaulinaSps. Esparcia Cipriana

FACTS:1. Lot 3368 originally belonged to SaturninoYaeso (origin). With his first wife, Teresa Reales, he had 4 children, named Agaton, Fernando, Paulina and Cipriana. 2. With his second wife, Andrea Gutang, he had an only son named Francisco (propositus).3. Upon Yaesos death, said lot was left to Francisco and title was issued in his name. Because Francisco was then a minor, his mother administered the property for him and declared it in her name for taxation purposes.4. When Francisco died, single and without any descendant, his mother, Andrea Gutang (reservista) as sole heir, executed an extrajudicial settlement and sale of the property in favor of the Sps. ConstancioSienes and GenovevaSilay (Sps. Sienes).5. Thereafter, the Sps. Sienes demanded from Paulina Yaeso and her husband, Jose Esparcia, the surrender of the original certificate of title (which was in their possession). The latter refused.6. Cipriana and Paulina Yaeso (reservatorios), the surviving half-sisters of Francisco as such, declared the property in their name and subsequently executed a deed of sale in favor of the Sps. Fidel Esparcia and Paulina Sienes (Sps. Esparcia), who in turn, declared it in their name for tax purposes and thereafter secured title in their name.7. ConstancioSienes then filed an action asking for the nullification of the sale executed by Paulina and Cipriana, the reconveyance of the lot and damages and cost of suit.8. Fidel Esparcia countered that they did not know any information regarding the sale by Andrea Gutang in favor of the Sps. Sienes, and that if such sale was made, the same was void since Andrea had no right to dispose of the property.9. The trial court declared that the sale of Andrea Gutang to Sps. Sienes was void and that the sale by Paulina and CiprianaYaeso to the Sps. Esparcia was also void. The land in question was reservable property and therefore, the reservista Andrea Gutang, was under obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said property came, if any, survived her.10. The records show that the lone reserve surviving was CiprianaYaeso.ISSUE:WON the lot in question is reservable property and if so, whether the reservoir or the reserve can alienate the sameHELD: Yes, the lot is reservable property.1. On Franciscos death, unmarried and without descendants, the property was inherited by his mother, Andrea Gutang, who was under obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said property came, if any, survived her.2. Being reservable property, the reserve creates two resolutory conditions:a.the death of the ascendant obliged to reserve andb.the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came.In connection with this, the court has held that the reservista (reservor) has the legal title and dominion to the reservable property but subject to a resolutory condition. Hence, he may alienate the same but subject to reservation, said alienation transmitting only the revocable and conditional ownership of the reservista, the right acquired by the transferee being revoked or resolved by the survival of reservatorios (reserves) at the time of the death of the reservista .3. In the present case, inasmuch as when the reservista, Andrea Gutang died, CiprianaYaeso was still alive, the conclusion becomes inescapable that the previous sale made by the former in favor of appellants became of no legal effect and the reservable property passed in exclusive ownership to Cipriana.4. On the other hand, the sale executed by the sisters, Paulina and CiprianaYaeso, in favor of the Sps. Esparcia was subject to a similar resolutory condition. While it may be true that the sale was made by Cipriana and her sister prior to the death of Andrea, it became effective because of the occurrence of the resolutory condition.

Case # 69 Florentino v. FlorentinoENCARNACION FLORENTINO, ET AL.,plaintiffs-appellants,vs.MERCEDES FLORENTINO, ET AL.,defendants-appellees.FLORENTINO v FLORENTINO G.R. No. L-14856 November 15, 1919Doctrine:Florentino settles a number of issues. First, with respect to the right of representation accorded the reservee, the same may be exercised only by such person seeking to represent if he himself is a relative within the third degree of the prepositus. Second, Florentino rejected the theory that if the reservable property does not fall into the hands of strangers, then the reserva is not applicable. T