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G.R. No. L-24561 June 30, 1970

MARINA DIZON-RIVERA, executrix-appellee,vs.ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON, ANGELINA DIZON and LILIADIZON, oppositors-appellants.

Appeal from orders of the Court of First Instance of Pampanga approving the Executrix-appellee's project of partition instead

of Oppositors-Appellants' proposed counter-project of partition. 1

On January 28, 1961, the testatrix, Agripina J. Valdez, a widow, died in Angeles, Pampanga, and was survived by sevencompulsory heirs, to wit, six legitimate children named Estela Dizon, Tomas V. Dizon, Bernardita Dizon, Marina Dizon (hereinexecutrix-appellee), Angelina Dizon and Josefina Dizon, and a legitimate granddaughter named Lilia Dizon, who is the onlylegitimate child and heir of Ramon Dizon, a pre-deceased legitimate son of the said decedent. Six of these seven compulsoryheirs (except Marina Dizon, the executrix-appellee) are the oppositors-appellants.

The deceased testatrix left a last will executed on February 2, 1960 and written in the Pampango dialect. Named beneficiariesin her will were the above-named compulsory heirs, together with seven other legitimate grandchildren, namely Pablo Rivera,Jr., Gilbert D. Garcia, Cayetano Dizon, Francisco Rivera, Agripina Ayson, Jolly Jimenez and Laureano Tiambon.

In her will, the testatrix divided, distributed and disposed of all her properties appraised at P1,801,960.00 (except two small

parcels of land appraised at P5,849.60, household furniture valued at P2,500.00, a bank deposit in the sum of P409.95 andten shares of Pampanga Sugar Development Company valued at P350.00) among her above-named heirs.

Testate proceedings were in due course commenced 2and by order dated March 13, 1961, the last will and testament of thedecedent was duly allowed and admitted to probate, and the appellee Marina Dizon-Rivera was appointed executrix of thetestatrix' estate, and upon her filing her bond and oath of office, letters testamentary were duly issued to her.

After the executrix filed her inventory of the estate, Dr. Adelaido Bernardo of Angeles, Pampanga was appointedcommissioner to appraise the properties of the estate. He filed in due course his report of appraisal and the same wasapproved in toto by the lower court on December 12, 1963 upon joint petition of the parties.

The real and personal properties of the testatrix at the time of her death thus had a total appraised value of P1,811,695.60,

and the legitime of each of the seven compulsory heirs amounted to P129,362.11. 3(/7 of the half of the estate reserved forthe legitime of legitimate children and descendants). 4In her will, the testatrix "commanded that her property be divided" inaccordance with her testamentary disposition, whereby she devised and bequeathed specific real properties comprisingpractically the entire bulk of her estate among her six children and eight grandchildren. The appraised values of the realproperties thus respectively devised by the testatrix to the beneficiaries named in her will, are as follows:

1. Estela Dizon ....................................... P 98,474.802. Angelina Dizon .................................. 106,307.063. Bernardita Dizon .................................. 51,968.174. Josefina Dizon ...................................... 52,056.395. Tomas Dizon ....................................... 131,987.416. Lilia Dizon .............................................. 72,182.477. Marina Dizon ..................................... 1,148,063.718. Pablo Rivera, Jr. ...................................... 69,280.009. Lilia Dizon, Gilbert Garcia,Cayetano Dizon, Francisco Rivera,

Agripina Ayson, Dioli or JollyJimenez, Laureano Tiamzon ................. 72,540.00Total Value ...................... P1,801,960.01

The executrix filed her project of partition dated February 5, 1964, in substance adjudicating the estate as follows:

(1) with the figure of P129,254.96 as legitime for a basis Marina (exacultrix-appellee) and Tomas (appellant)are admittedly considered to have received in the will more than their respective legitime, while the rest ofthe appellants, namely, Estela, Bernardita, Angelina, Josefina and Lilia received less than their respectivelegitime;

(2) thus, to each of the latter are adjudicated the properties respectively given them in the will, plus cashand/or properties, to complete their respective legitimes to P129,254.96; (3) on the other hand, Marina andTomas are adjudicated the properties that they received in the will less the cash and/or properties necessary

to complete the prejudiced legitime mentioned in number 2 above;

(4) the adjudications made in the will in favor of the grandchildren remain untouched.

On the other hand oppositors submitted their own counter-project of partition dated February 14, 1964,wherein they proposed the distribution of the estate on the following basis:

(a) all the testamentary dispositions were proportionally reduced to the value of one-half () of the entireestate, the value of the said one-half () amounting to P905,534.78; (b) the shares of the Oppositors-

Appellants should consist of their legitime, plus the devises in their favor proportionally reduced; (c) inpayment of the total shares of the appellants in the entire estate, the properties devised to them plus otherproperties left by the Testatrix and/or cash are adjudicated to them; and (d) to the grandchildren who are not

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compulsory heirs are adjudicated the properties respectively devised to them subject to reimbursement byGilbert D. Garcia, et al., of the sums by which the devise in their favor should be proportionally reduced.

Under the oppositors' counter-project of partition, the testamentary disposition made by the testatrix of practically her wholeestate of P1,801,960.01, as above stated, were proposed to be reduced to the amounts set forth after the names of therespective heirs and devisees totalling one-half thereof as follows:

1. Estela Dizon ........................................... P 49,485.562. Angelina Dizon ......................................... 53,421.423. Bernardita Dizon ....................................... 26,115.04

4. Josefina Dizon .......................................... 26,159.385. Tomas V. Dizon ......................................... 65,874.046. Lilia Dizon .................................................. 36,273.137. Marina Dizon ........................................... 576,938.828. Pablo Rivera, Jr. ......................................... 34,814.509. Grandchildren Gilbert Garcia et al .......... 36,452.80

T o t a l ................................................... P905,534.78

while the other half of the estate (P905,534.78) would be deemed as constituting the legitime of the executrix-appellee andoppositors-appellants, to be divided among them in seven equal parts of P129,362.11 as their respective legitimes.

The lower court, after hearing, sustained and approved the executrix' project of partition, ruling that "(A)rticles 906 and 907 ofthe New Civil Code specifically provide that when the legitime is impaired or prejudiced, the same shall be completed and

satisfied. While it is true that this process has been followed and adhered to in the two projects of partition, it is observed thatthe executrix and the oppositors differ in respect to the source from which the portion or portions shall be taken in order to fullyrestore the impaired legitime. The proposition of the oppositors, if upheld, will substantially result in a distribution of intestacy,which is in controversion of Article 791 of the New Civil Code" adding that "the testatrix has chosen to favor certain heirs in herwill for reasons of her own, cannot be doubted. This is legally permissible within the limitation of the law, as aforecited." Withreference to the payment in cash of some P230,552.38, principally by the executrix as the largest beneficiary of the will to bepaid to her five co-heirs, the oppositors (excluding Tomas Dizon), to complete their impaired legitimes, the lower court ruledthat "(T)he payment in cash so as to make the proper adjustment to meet with the requirements of the law in respect tolegitimes which have been impaired is, in our opinion, a practical and valid solution in order to give effect to the last wishes ofthe testatrix."

From the lower court's orders of approval, oppositors-appellants have filed this appeal, and raise anew the following issues: .

1. Whether or not the testamentary dispositions made in the testatrix' will are in the nature of devises imputable to the free

portion of her estate, and therefore subject to reduction;

2. Whether the appellants are entitled to the devise plus their legitime under Article 1063, or merely to demand completion oftheir legitime under Article 906 of the Civil Code; and

3. Whether the appellants may be compelled to accept payment in cash on account of their legitime, instead of some of thereal properties left by the Testatrix;

which were adversely decided against them in the proceedings below.

The issues raised present a matter of determining the avowed intention of the testatrix which is "the life and soul of a will." 5Inconsonance therewith, our Civil Code included the new provisions found in Articles 788 and 791 thereof that "(I)f atestamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be

operative shall be preferred" and "(T)he words of a will are to receive an interpretation which will give to every expressionsome 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 vs. Juico 6for violation of these rules of interpretation as well as ofRule 123, section 59 of the old Rules of Court, 7 the Court, speaking through Mr. Justice J.B.L. Reyes, overturned the lowercourt's decision and stressed that "the intention and wishes of the testator, when clearly expressed in his will, constitute thefixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled inaccordance therewith, following the plain and literal meaning of the testator's words, unless it clearlyappears that his intentionwas otherwise." 8

The testator's wishes and intention constitute the first and principal law in the matter of testaments, and to paraphrase an earlydecision of the Supreme Court of Spain, 9 when expressed clearly and precisely in his last will amount to the only law whosemandate must imperatively be faithfully obeyed and complied with by his executors, heirs and devisees and legatees, andneither these interested parties nor the courts may substitute their own criterion for the testator's will. Guided and restricted bythese fundamental premises, the Court finds for the appellee.

1. Decisive of the issues at bar is the fact that the testatrix' testamentary disposition was in the nature of a partition of herestate by will. Thus, in the third paragraph of her will, after commanding that upon her death all her obligations as well as theexpenses of her last illness and funeral and the expenses for probate of her last will and for the administration of her propertyin accordance with law, be paid, she expressly provided that "it is my wish and I command that my property be divided" inaccordance with the dispositions immediately thereafter following, whereby she specified each real property in her estate anddesignated the particular heir among her seven compulsory heirs and seven other grandchildren to whom she bequeathed the

same. This was a valid partition 10of her estate, as contemplated and authorized in the first paragraph of Article 1080 of theCivil Code, providing that "(S)hould a person make a partition of his estate by an act inter vivos or by will, such partition shallbe respected, insofar as it does not prejudice the legitime of the compulsory heirs." This right of a testator to partition hisestate is subject only to the right of compulsory heirs to their legitime. The Civil Code thus provides the safeguard for the rightof such compulsory heirs:

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ART. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demandthat the same be fully satisfied.

ART. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petitionof the same, insofar as they may be inofficious or excessive.

This was properly complied with in the executrix-appellee's project of partition, wherein the five oppositors-appellants namelyEstela, Bernardita, Angelina, Josefina and Lilia, were adjudicated the properties respectively distributed and assigned to themby the testatrix in her will, and the differential to complete their respective legitimes of P129,362.11 each were taken from thecash and/or properties of the executrix-appellee, Marina, and their co-oppositor-appellant, Tomas, who admittedly were

favored by the testatrix and received in the partition by will more than their respective legitimes.

2. This right of a testator to partition his estate by will was recognized even in Article 1056 of the old Civil Code which hasbeen reproduced now as Article 1080 of the present Civil Code. The only amendment in the provision was that Article 1080

"now permits any person (not a testator, as under the old law) to partition his estate by act inter vivos." 11This was intended torepeal the then prevailing doctrine 12that for a testator to partition his estate by an act inter vivos, he must first make a will withall the formalities provided by law. Authoritative commentators doubt the efficacy of the amendment 13but the question doesnot here concern us, for this is a clear case of partition by will, duly admitted to probate, which perforce must be given fullvalidity and effect. Aside from the provisions of Articles 906 and 907 above quoted, other codal provisions support theexecutrix-appellee's project of partition as approved by the lower court rather than the counter-project of partition proposed byoppositors-appellants whereby they would reduce the testamentary disposition or partition made by the testatrix to one-halfand limit the same, which they would consider as mere devises or legacies, to one-half of the estate as the disposable freeportion, and apply the other half of the estate to payment of the legitimes of the seven compulsory heirs. Oppositors' proposalwould amount substantially to a distribution by intestacy and pro tanto nullify the testatrix' will, contrary to Article 791 of the

Civil Code. It would further run counter to the provisions of Article 1091 of the Civil Code that "(A) partition legally madeconfers upon each heir the exclusive ownership of the property adjudicated to him."

3. In Habana vs. Imbo, 14the Court upheld the distribution made in the will of the deceased testator Pedro Teves of two largecoconut plantations in favor of his daughter, Concepcion, as against adverse claims of other compulsory heirs, as being apartition by will, which should be respected insofar as it does not prejudice the legitime of the compulsory heirs, in accordancewith Article 1080 of the Civil Code. In upholding the sale made by Concepcion to a stranger of the plantations thus partitionedin her favor in the deceased's will which was being questioned by the other compulsory heirs, the Court ruled that "ConcepcionTeves by operation of law, became the absolute owner of said lots because 'A partition legally made confers upon each heirthe exclusive ownership of the property adjudicated to him' (Article 1091, New Civil Code), from the death of her ancestors,subject to rights and obligations of the latter, and, she can not be deprived of her rights thereto except by the methods

provided for by law (Arts. 657, 659, and 661, Civil Code). 15Concepcion Teves could, as she did, sell the lots in question aspart of her share of the proposed partition of the properties, especially when, as in the present case, the sale has beenexpressly recognized by herself and her co-heirs ..."

4. The burden of oppositors' contention is that the testamentary dispositions in their favor are in the nature of devises of realproperty, citing the testatrix' repeated use of the words "I bequeath" in her assignment or distribution of her real properties tothe respective heirs. From this erroneous premise, they proceed to the equally erroneous conclusion that "the legitime of thecompulsory heirs passes to them by operation of law and that the testator can only dispose of the free portion, that is, theremainder of the estate after deducting the legitime of the compulsory heirs ... and all testamentary dispositions, either in thenature of institution of heirs or of devises or legacies, have to be taken from the remainder of the testator's estate constitutingthe free portion." 16

Oppositors err in their premises, for the adjudications and assignments in the testatrix' will of specific properties to specificheirs cannot be considered all devises, for it clearly appear from the whole context of the will and the disposition by thetestatrix of her whole estate (save for some small properties of little value already noted at the beginning of this opinion) thather clear intention was to partition her whole estate through her will. The repeated use of the words "I bequeath" in hertestamentary dispositions acquire no legal significance, such as to convert the same into devises to be taken solely from the

free one-half disposable portion of the estate. Furthermore, the testatrix' intent that her testamentary dispositions were by wayof adjudications to the beneficiaries as heirs and not as mere devisees, and that said dispositions were therefore on account ofthe respective legitimes of the compulsory heirs is expressly borne out in the fourth paragraph of her will, immediatelyfollowing her testamentary adjudications in the third paragraph in this wise: "FOURTH: I likewise command that in case any ofthose I named as my heirs in this testamentany of them shall die before I do, his forced heirs under the law enforced at thetime of my death shall inherit the properties I bequeath to said deceased." 17

Oppositors' conclusions necessarily are in error. The testamentary dispositions of the testatrix, being dispositions in favor ofcompulsory heirs, do not have to be taken only from the free portion of the estate, as contended, for the second paragraph of

Article 842 of the Civil Code precisely provides that "(O)ne who has compulsory heirs may dispose of his estate provided hedoes not contravene the provisions of this Code with regard to the legitime of said heirs." And even going by oppositors' owntheory of bequests, the second paragraph of Article 912 Civil Code covers precisely the case of the executrix-appellee, whoadmittedly was favored by the testatrix with the large bulk of her estate in providing that "(T)he devisee who is entitled to alegitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share

pertaining to him as legitime." For "diversity of apportionment is the usual reason for making a testament; otherwise, the

decedent might as well die intestate." 18 Fundamentally, of course, the dispositions by the testatrix constituted a partition bywill, which by mandate of Article 1080 of the Civil Code and of the other cited codal provisions upholding the primacy of thetestator's last will and testament, have to be respected insofar as they do not prejudice the legitime of the other compulsoryheirs.

Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by will is not deemed subject to collation, if thetestator has not otherwise provided, but the legitime shall in any case remain unimpaired" and invoking of the constructionthereof given by some authorities that "'not deemed subject to collation' in this article really means not imputable to or

chargeable against the legitime", while it may have some plausibility 19in an appropriate case, has no application in thepresent case. Here, we have a case of a distribution and partition of the entire estate by the testatrix, without her having madeany previous donations during her lifetime which would require collation to determine the legitime of each heir nor having left

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merely some properties by will which would call for the application of Articles 1061 to 1063 of the Civil Code on collation. Theamount of the legitime of the heirs is here determined and undisputed.

5. With this resolution of the decisive issue raised by oppositors-appellants, the secondary issues are likewise necessarilyresolved. Their right was merely to demand completion of their legitime under Article 906 of the Civil Code and this has beencomplied with in the approved project of partition, and they can no longer demand a further share from the remaining portion ofthe estate, as bequeathed and partitioned by the testatrix principally to the executrix-appellee.

Neither may the appellants legally insist on their legitime being completed with real properties of the estate instead of beingpaid in cash, per the approved project of partition. The properties are not available for the purpose, as the testatrix had

specifically partitioned and distributed them to her heirs, and the heirs are called upon, as far as feasible to comply with andgive effect to the intention of the testatrix as solemnized in her will, by implementing her manifest wish of transmitting the realproperties intact to her named beneficiaries, principally the executrix-appellee. The appraisal report of the properties of theestate as filed by the commissioner appointed by the lower court was approved in toto upon joint petition of the parties, andhence, there cannot be said to be any question and none is presented as to fairness of the valuation thereof or that thelegitime of the heirs in terms of cash has been understated. The plaint of oppositors that the purchasing value of the Philippinepeso has greatly declined since the testatrix' death in January, 1961 provides no legal basis or justification for overturning thewishes and intent of the testatrix. The transmission of rights to the succession are transmitted from the moment of death of thedecedent (Article 777, Civil Code) and accordingly, the value thereof must be reckoned as of then, as otherwise, estates wouldnever be settled if there were to be a revaluation with every subsequent fluctuation in the values of the currency and propertiesof the estate. There is evidence in the record that prior to November 25, 1964, one of the oppositors, Bernardita, accepted the

sum of P50,000.00 on account of her inheritance, which, per the parties' manifestation, 20"does not in any way affect theadjudication made to her in the projects of partition of either party as the same is a mere advance of the cash that she shouldreceive in both projects of partition." The payment in cash by way of making the proper adjustments in order to meet therequirements of the law on non-impairment of legitimes as well as to give effect to the last will of the testatrix has invariably

been availed of and sanctioned. 21That her co-oppositors would receive their cash differentials only now when the value of thecurrency has declined further, whereas they could have received them earlier, like Bernardita, at the time of approval of theproject of partition and when the peso's purchasing value was higher, is due to their own decision of pursuing the presentappeal.

ACCORDINGLY, the orders appealed from are hereby affirmed. Without cost.

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G.R. No. L-21993 June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners,vs.HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III,ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents.

Lorenzo Somulong for petitioners.Torres and Torres for respondents.

REYES, J.B.L., J.:

Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writofcertiorariand prohibition to the Court of First Instance of Bulacan, for its refusal to grant their motion todismiss its Special Proceeding No. 1331, which said Court is alleged to have taken cognizance of without

jurisdiction.

The facts and issues are succinctly narrated in the order of the respondent court, dated June 13, 1963(Petition, Annex 0), in this wise:

It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez,through counsel, that this Court "has no jurisdiction to try the above-entitled case in view of thependency of another action for the settlement of the estate of the deceased Rev. Fr. CelestinoRodriguez in the Court of First Instance of Rizal, namely, Sp. Proceedings No. 3907 entitled 'In thematter of the Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez which was filed ahead ofthe instant case".

The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila; thaton March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Court ofBulacan a purported last will and testament of Fr. Rodriguez; that on March 8, 1963, MariaRodriguez and Angela Rodriguez, through counsel filed a petition for leave of court to allow them to

examine the alleged will; that on March 11, 1963 before the Court could act on the petition, the samewas withdrawn; that on March 12, 1963, aforementioned petitioners filed before the Court of FirstInstance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging, amongother things, that Fr. Rodriguez was a resident of Paraaque, Rizal, and died without leaving a willand praying that Maria Rodriguez be appointed as Special Administratrix of the estate; and that onMarch 12, 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petition in this Court for theprobation of the will delivered by them on March 4, 1963. It was stipulated by the parties that Fr.Rodriguez was born in Paraaque, Rizal; that he was Parish priest of the Catholic Church ofHagonoy, Bulacan, from the year 1930 up to the time of his death in 1963; that he was buried inParaaque, and that he left real properties in Rizal, Cavite, Quezon City and Bulacan.

The movants contend that since the intestate proceedings in the Court of First Instance of Rizal wasfiled at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the Court of FirstInstance of Bulacan at 11:00 A.M. on the same date, the latter Court has no jurisdiction to entertainthe petition for probate, citing as authority in support thereof the case ofOngsingco Vda. de Borjavs. Tan and De Borja, G.R. No. 7792, July 27, 1955.

The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of FirstInstance of Bulacan acquired jurisdiction over the case upon delivery by them of the will to the Clerkof Court on March 4, 1963, and that the case in this Court therefore has precedence over the casefiled in Rizal on March 12, 1963.

The Court of First Instance, as previously stated denied the motion to dismiss on the ground that adifference of a few hours did not entitle one proceeding to preference over the other; that, as early as March7, movants were aware of the existence of the purported will of Father Rodriguez, deposited in the Court of

Bulacan, since they filed a petition to examine the same, and that movants clearly filed the intestateproceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from exercising jurisdictionover the probate proceedings". Reconsideration having been denied, movants, now petitioners, came to thisCourt, relying principally on Rule 73, section 1 of the Rules of Court, and invoking our ruling in Ongsingcovs. Tan and De Borja, L-7792, July 27, 1955.

SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of thePhilippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters ofadministration granted, and his estate settled, in the Court of First Instance in the province in whichhe resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of FirstInstance of any province which he had estate. The court first taking cognizance of the settlement of

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the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. Thejurisdiction assumed by a court, as far as it depends on the place of residence of the decedent, or ofthe location of his estate, shall not be contested in a suit or proceeding, except in an appeal fromthat court, in the original case, or when the want of jurisdiction appears on the record.

We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan becamevested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963, even if no petitionfor its allowance was filed until later, because upon the will being deposited the court could, motu proprio,have taken steps to fix the time and place for proving the will, and issued the corresponding notices

conformably to what is prescribed by section 3, Rule 76, of the Revised Rules of Court (Section 3, Rule 77,of the old Rules):

SEC. 3. Court to appoint time for proving will. Notice thereof to be published. When a will isdelivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, suchCourt shall fix a time and place for proving the will when all concerned may appear to contest theallowance thereof, and shall cause notice of such time and place to be published three (3) weekssuccessively, previous to the time appointed, in a newspaper of general circulation in the province.

But no newspaper publication shall be made where the petition for probate has been filed by thetestator himself.

The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a will isfiled" plainly indicates that the court may act upon the mere deposit therein of a decedent's testament, evenif no petition for its allowance is as yet filed. Where the petition for probate is made after the deposit of thewill, the petition is deemed to relate back to the time when the will was delivered. Since the testament of Fr.Rodriguez was submitted and delivered to the Court of Bulacan on March 4, while petitioners initiatedintestate proceedings in the Court of First Instance of Rizal only on March 12, eight days later, theprecedence and exclusive jurisdiction of the Bulacan court is incontestable. 1wph1.t

But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to "theCourt having jurisdiction," and in the case at bar the Bulacan court did not have it because the decedent wasdomiciled in Rizal province. We can not disregard Fr. Rodriguez's 33 years of residence as parish priest inHagonoy, Bulacan (1930-1963); but even if we do so, and consider that he retained throughoutsome animus revertendito the place of his birth in Paraaque, Rizal, that detail would not imply that theBulacan court lacked jurisdiction. As ruled in previous decisions, the power to settle decedents' estates isconferred by law upon all courts of first instance, and the domicile of the testator only affects the venue butnot the jurisdiction of the Court (In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs.Vergara, 73 Phil. 676). Neither party denies that the late Fr. Rodriguez is deceased, or that he left personalproperty in Hagonoy, province of Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H", Petition, Rec.,p. 48). That is sufficient in the case before us.

In the Kaw Singco case (ante) this Court ruled that:

"... If we consider such question of residence as one affecting the jurisdiction of the trial court overthe subject-matter, the effect shall be that the whole proceedings including all decisions on thedifferent incidents which have arisen in court will have to be annulled and the same case will have to

be commenced anew before another court of the same rank in another province. That this is ofmischievous effect in the prompt administration of justice is too obvious to require comment. (Cf.Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942). Furthermore, section 600of Act No. 190, providing that the estate of a deceased person shall be settled in the province wherehe had last resided, could not have been intended as defining the jurisdiction of the probate courtover the subject matter, because such legal provision is contained in a law of procedure dealingmerely with procedural matters, and, as we have said time and again, procedure is one thing and

jurisdiction over the subject matter is another. (Attorney General vs. Manila Railroad Company, 20Phil. 523.) The law of jurisdiction Act No. 136, Section 56, No. 5 confers upon Courts of FirstInstance jurisdiction over all probate cases independently of the place of residence of thedeceased.1 Since, however, there are many Courts of First Instance in the Philippines, the Law ofProcedure, Act No. 190, section 600, fixes the venue or the place where each case shall be brought.Thus, the place of residence of the deceased is not an element of jurisdiction over the subject matterbut merely of venue. And it is upon this ground that in the new Rules of Court the province where theestate of a deceased person shall be settled is properly called "venue" (Rule 75, section 1.) Motionfor reconsideration is denied.

The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any other, thatcourt is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case of wrongvenue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the same enjoins that:

The Court first taking cognizance of the settlement of the estate of a decedent shall exercisejurisdiction to the exclusion of all other courts. (Sec. 1)

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This disposition presupposes that two or more courts have been asked to take cognizance of the settlementof the estate. Of them only one could be of proper venue, yet the rule grants precedence to that Courtwhose jurisdiction is first invoked, without taking venue into account.

There are two other reasons that militate against the success of petitioners. One is that their commencingintestate proceedings in Rizal, after they learned of the delivery of the decedent's will to the Court ofBulacan, was in bad faith, patently done with a view to divesting the latter court of the precedence awardedit by the Rules. Certainly the order of priority established in Rule 73 (old Rule 75) was not designed toconvert the settlement of decedent's estates into a race between applicants, with the administration of the

properties as the price for the fleetest.

The other reason is that, in our system of civil law, intestate succession is only subsidiary or subordinate tothe testate, since intestacy only takes place in the absence of a valid operative will. Says Article 960 of theCivil Code of the Philippines:

ART. 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;

(2) When the will does not institute an heir to, or dispose of all the property belonging to the testator.In such case, legal succession shall take place only with respect to the property in which the testator

has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, orif the heir dies before the testator, or repudiates the inheritance, there being no substitution, and noright of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.

Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the nullity oftestate succession could an intestate succession be instituted in the form of pre-established action". Theinstitution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported will ofFather Rodriguez is pending.

We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate inquestion, and that in refusing to dismiss the probate. proceedings, said court did not commit any abuse ofdiscretion. It is the proceedings in the Rizal Court that should be discontinued.

Wherefore, the writ ofcertiorariapplied for is denied. Costs against petitioners Rodriguez.

Concepcion, C.J., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

Footnotes

1Now section 44, subpar. (e) of the Judiciary Act (R.A. No. 296).

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G.R. No. L-7188 August 9, 1954

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.

SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,

vs.

MIGUEL ABADIA, ET AL., oppositors-appellants.

Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants.

C. de la Victoria for appellees.

MONTEMAYOR, J.:

On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a

document purporting to be his Last Will and Testament now marked Exhibit "A". Resident

of the City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu,

where he was an evacuee. He left properties estimated at P8,000 in value. On October 2,1946, one Andres Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate

in the Court of First Instance of Cebu. Some cousins and nephews who would inherit the

estate of the deceased if he left no will, filed opposition.

During the hearing one of the attesting witnesses, the other two being dead, testified without

contradiction that in his presence and in the presence of his co-witnesses, Father Sancho

wrote out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that

he (testator) signed on he left hand margin of the front page of each of the three folios or

sheets of which the document is composed, and numbered the same with Arabic numerals,

and finally signed his name at the end of his writing at the last page, all this, in the presenceof the three attesting witnesses after telling that it was his last will and that the said three

witnesses signed their names on the last page after the attestation clause in his presence and

in the presence of each other. The oppositors did not submit any evidence.

The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in

the handwriting of the testator and that although at the time it was executed and at the time

of the testator's death, holographic wills were not permitted by law still, because at the time

of the hearing and when the case was to be decided the new Civil Code was already in force,

which Code permitted the execution of holographic wills, under a liberal view, and to carry

out the intention of the testator which according to the trial court is the controlling factor andmay override any defect in form, said trial court by order dated January 24, 1952, admitted

to probate Exhibit "A", as the Last Will and Testament of Father Sancho Abadia. The

oppositors are appealing from that decision; and because only questions of law are involved

in the appeal, the case was certified to us by the Court of Appeals.

The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person

may execute a holographic will which must be entirely written, dated and signed by the

testator himself and need not be witnessed. It is a fact, however, that at the time that Exhibit

"A" was executed in 1923 and at the time that Father Abadia died in 1943, holographic wills

were not permitted, and the law at the time imposed certain requirements for the execution ofwills, such as numbering correlatively each page (not folio or sheet) in letters and signing on

the left hand margin by the testator and by the three attesting witnesses, requirements which

were not complied with in Exhibit "A" because the back pages of the first two folios of the

will were not signed by any one, not even by the testator and were not numbered, and as to

the three front pages, they were signed only by the testator.

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G.R. No. L-5064 February 27, 1953

BIENVENIDO A. IBARLE, plaintiff-appellant,vs.ESPERANZA M. PO, defendant-appellant.

This action commenced in the Court of First Instance of Cebu to annul a deed of sale conveying to thedefendant, in consideration of P1,700, one undivided half of a parcel of land which previously had been sold,along with the other half, by the same vendor to the plaintiff's grantors. judgment was against the plaintiff.

The case was submitted for decision upon an agreed statement of facts, the pertinent parts of which arethus summarized in the appealed decision:

1st. That Leonard j. Winstanley and Catalina Navarro were husband and wife, the former having died onJune 6, 1946 leaving heir the surviving spouse and some minor children;

2nd. hat upon the death of L.J. Winstanley, he left a parcel of land described under Transfer Certificate oftitle No. 2391 of the Registry of Deeds of the Province of Cebu;

3rd. That the above mentioned property was a conjugal property;

4th. That on April 15, 1946, the surviving spouse Catalina Navarro Vda. de Winstanley sold the entireparcel of land to the spouses Maria Canoy, alleging among other things, that she needed money for thesupport of her children;

5th. That on May 24, 1947, the spouses Maria Canoy and Roberto Canoy sold the same parcel of land tothe plaintiff in this case named Bienvenido A. Ebarle;

6th. That the two deeds of sale referred to above were not registered and have never been registered upto the date;

7th. That on January 17, 1948 surviving spouse Catalina Navarro Vda. de Winstanley, after herappointment as guardian of her children by this court (Special proceeding no. 212-R) sold one-half of theland mentioned above to Esperanza M. Po, defendant in the instant case, which portion belongs to thechildren of the above named spouses.

As stated by the trial Judge, the sole question for determination is the validity of the sale to Esperanza M.Po, the last purchaser. This question in turn depends upon the validity of the prior ale to Maria Canoy andRoberto Canoy.

Article 657 of the old Civil Code provides: "The rights to the succession of a person are transmitted from themoment of his death." in a slightly different language, this article is incorporated in the new Civil Code asarticle 777.

Manresa, commending on article 657 of the Civil Code of Spain, says:

The moment of death is the determining factor when the heirs acquire a definite right to the inheritance,whether such right be pure or contingent. It is immaterial whether a short or long period of time lapsesbetween the death of the predecessor and the entry into possession of the property of the inheritance

because the right is always deemed to be retroactive from the moment of death. (5 Manresa, 317.)

The above provision and comment make it clear that when Catalina Navarro Vda. de Winstanley sold theentire parcel to the Canoy spouses, one-half of it already belonged to the seller's children. No formal or

judicial declaration being needed to confirm the children's title, it follows that the first sale was null and voidin so far as it included the children's share.

On the other hand, the sale to the defendant having been made by authority of the competent court wasundeniably legal and effective. The fact that it has not been recorded is of no consequence. If registrationwere necessary, still the non-registration would not avail the plaintiff because it was due to no other causethan his own opposition.

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The decision will be affirmed subject to the reservation, made in said decision, of the right of the plaintitffand/or the Canoy spouses to bring such action against Catalina Navarro Vda. de Winstanley as may beappropriate for such damages as they may have incurred by reason of the voiding of the sale in their favor.

G.R. No. L-21017 February 25, 1924

In re estate of JOSE YAP SIONG, deceased.MARIA LAO and JOSE LAO, petitioners-appellees,vs.DEE TIM, YAP KIM TING, YAP KIM SENG, and YAP HU CHO, respondents-appellants.

Salvador Barrios and Gabino S. Abaya for appellants.Felix B. Bautista and Jose Gutierrez David for appellees.

JOHNSON, J.:

It appears from the record that on the 5th day of September, 1922, Yap Siong died in the municipality ofAngeles, Province of Pampanga, Philippine Islands, leaving a considerable amount of property to bedistributed among his heirs. An administrator was appointed to administer his estate. During the course ofthe administration and distribution of the estate there appeared the petitioners and the respondents, eachclaiming to be the legitimate heirs of Yap Siong and entitled to his estate. The petitioner Maria Lao claims tobe the legitimate widow of Yap Siong, having been legally joined to him in holy wedlock on the 24th day ofJune, 1903, in the Philippine Islands (Exhibit 1) and that Jose Lao is a legitimate child born of that marriage,and that they are therefore entitled, as heirs, to the estate of Yap Siong, deceased.

Upon the other hand Dee Tim claims to be the legitimate widow of Yap Siong; that she and Yap Siong werejoined in the holy wedlock on the 14th day of September, 1893, in accordance with the laws of China(Exhibits A and A-1), and that the said Yap Kim Ting, Yap Kim Seng, and Yap Hu Cho were her legitimatechildren born of that wedlock.

In support of the contention of the petitioners, Maria Lao and her son Jose Lao, a great deal of proof waspresented. Exhibits 1 and 1-A, certificates of marriage, were presented to show that she had been legallymarried to Yap Siong. A number of other documents (Exhibits 9 to 13) were presented to show that YapSiong had admitted that he was a married man. Exhibits 14 to 17 were presented for the purpose of provingthat Yap Siong had admitted in a public document that Maria Lao was his wife.

The respondent Dee Tim presented a great deal of proof to show that she was the legitimate wife of YapSiong, lawfully joined to him in holy wedlock in China on the 14th day of September, 1893. To support thatcontention she presented what she contended was a certificate of marriage, marked Exhibit A Exhibit A-1. She contended that Exhibit A was positive proof of her marriage and that it complied with the custom andpractice in China with reference to marriage ceremonies. To support her contention she presented a number

of witnesses. Jan Peng, a Chinaman of 52 years of age, swore that he knew the forms of ceremonies ofmarriage in China, and that Exhibit A was the ordinary and customary document issued to prove that theceremony of marriage had taken place. He described in detail the ceremony of marriage performed inaccordance with the customs and practice in China.

Dee Tim also presented a witness, Ty Cong Ting, a Chinaman, 32 years of age and a lawyer, who testifiedconcerning the laws and customs in China with reference to the forms of marriage ceremony. He testifiedthat he knew and was well acquainted with the customs and practices of Chinamen in China with referenceto marriages and the manner and form in which they were celebrated, and the form of proof issued for thepurpose of proving that a marriage ceremony had been performed. He further testified that Exhibit A was theusual proof or certificate issued for the purpose of proving that a marriage ceremony had taken place. Hefurther testified that Exhibit A was the usual and ordinary proof, or certificate, if it may be called a certificate,issued to show that a marriage ceremony had been performed between the persons mentioned therein. Mr.

Ty Cong Ting was, at the time he declared as a witness, the legal attorney of the Chinese Consul General inthe City of Manila.

The respondent Dee Tim presented several witnesses who confirmed her contention that she was thelegitimate wife of Yap Siong and that her three children Yap Kim Ting, Yap Kim Seng, and Yap Hu Cho wereher legitimate children, born of her marriage with Yap Siong. To further sustain her contention she presentedExhibits B, C, D, E, F, G, H, I, and J, documents in which Yap Siong had expressly recognized his marriageto her.

To overcome the proof adduced by Dee Tim in support of her marriage to Yap Siong, the petitionerpresented Exhibits 2,3,4,5,6,7, and 8. Said exhibits are alleged letters supposed to have been written by an

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uncle in China of Yap Siong during the years 1900 to 1906, urging him to return to China for the purpose ofmarrying, thus attempting to establish the fact that Yap Siong during that period was not a married man.When we first studied the record in this case we were inclined to give said letters great credit, but upon afurther examination of the record and a further argument by the respective parties, we are now inclined tobelieve that said letters were fabricated for the very purpose of defeating the contention of Dee Tim. Theywere not identified properly by persons who had reason to know that they were genuine in character andwere actually prepared in China and sent to Yap Siong in the Philippine Islands. We are of the opinion, andwe believe that was the real opinion of the trial court, that said exhibits should not be admitted as proof tosustain the fact for which they were presented. We are now persuaded that said letters are pure fabrications.

The petitioner further presents two or three witnesses for the purpose of showing that the marriage betweenDee Tim and Yap Siong never took place for the reason that Yap Siong was in the Philippine Islands on the14th day of September, 1893, and that at that time he was living in the municipality of Bacolor, of theProvince of Pampanga, and that he never left that municipality. A careful reading of their testimony,however, does not convince us that it is altogether reliable. The testimony which they gave was given in themonth of January, 1923, and they testified positively as to exact dates, times, and places in the year 1897.Their testimony contains no facts, or data, or peculiar circumstances or conditions which caused them toremember the particular facts concerning which they testified. They gave no reason why they were able toremember the exact whereabouts of Yap Siong during the period to which their testimony referred. Upon thecontrary there is much proof in the record that Yap Siong returned to China a number of times after his firstarrival here. The petitioner further presents some proof to show that Yap Siong had admitted on severaloccasions that Dee Tim was his querida and not his wife.

The respondents further attempted to show that Maria Lao and Jose Lao, her son, were not the legitimatewife and son of Yap Siong, by presenting Exhibits L and LL. Exhibit L is the baptismal certificate issued bythe parish priest of the municipality of Angeles, in which it is made to appear that on the 5th day of January,1904, he baptized a child named Jose Martin, a natural son of Maria Lao, and whose father was unknown.Exhibit LL is a certificate of birth issued by the secretary of the municipality of Angeles, in which it appearsthat Jose Martin Lao, a child, was born on the first day of January, 1904, a natural son of Maria Lao. Thereis nothing, however, in Exhibits L or LL, which shows that Maria Lao was responsible for the facts which theycontain. Exhibit LL contains the statement that the facts therein were not obtained from Maria Lao but fromone Isabelo Lao.

There is a notable conflict between Exhibits L and LL. Exhibit LL certifies that Jose Martin Lao was born on

the first day of January, 1904, while Exhibit L certifies that the baptism took place on the 5th day of January,1904, and that the child was then 34 days old. It is apparent therefore that the facts stated in one or theother of said exhibits are untrue. And, moreover, when we consider the customs of the Filipino people intheir relation with the Holy Roman Catholic Apostolic Church, it is easily understood, in view of the allegedfact that Maria Lao and Yap Siong had been joined in holy matrimony under the forms of the ProtestantChurch, why the parish priest of the municipality of Angeles stated in his certificate that the father of thechild, then Jose Martin, was unknown.

The respondents further attempted to show that Yap Siong and Maria Lao had never been joined legally inholy wedlock, by the testimony of a number of witnesses to the fact that Yap Siong had on numerousoccassions asserted that Maria Lao was his querida only. It is perhaps true that Yap Siong did on variousoccasions, depending upon his interest and convenience at the particular time, state that Maria Lao was

his querida and not his wife. It is also perhaps true, for the same reason, that he stated that Dee Tim wasnot his wife but his querida. Evidently he was attempting to keep the information, that he was quite able todo, until he had passed to that bourn from which none returns, and until a distribution of his largeaccumulated earnings among his heirs became necessary.

From all of the foregoing conflicting facts, and considering all of the facts of the record, we are forced to theconclusion that a preponderance of the evidence shows the following:

(1) That Dee Tim and Yap Siong were legally married in China in accordance with the laws andcustoms in China on the 14th day of September, 1893; that Yap Kim Ting, Yap Kim Seng, and YapHu Cho were the legitimate children born of that wedlock; that Dee Tim and her said children wereignorant of the fact that Yap Siong had legally married Maria Lao, and that Jose Lao was born of thatwedlock; and that they had no reason to believe, until after the death of Yap Siong, that he was

legally married to the petitioner herein.

(2) That Maria Lao was legally married to Yap Siong on the 24th day of June, 1903, in good faithbelieving that Yap Siong was not then a married man, without any knowledge or information orsuspicion to the contrary; and that Jose Lao is the legitimate child born of that marriage of Yap Siongand Maria Lao.

In other words, we are fully convinced that a preponderance of the evidence shows that both Dee Tim andMaria Lao were legally married to Yap Siong in good faith, believing that each was his sole and separatewife, living in absolute ignorance of the fact of his double marriage. They were each married in good faith

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-25966 November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES, special administrator,and LUZ LOPEZ DE BUENO, heir, appellee,vs.MARGARITA LOPEZ, opponent-appellant.

Marcaida, Capili and Ocampo and Camus, Delgado and Recto for appellant.Araneta and Zaragoza for appellee.

STREET, J.:

This appeal involves a controversy over one-half of the estate of Tomas Rodriguez, decedent. Theappellant, Margarita Lopez, claims said half by the intestate succession as next of kin and nearest heir;while the appellee, Luz Lopez de Bueno, claims the same by accredition and in the character of universalheir the will of the decedent. The trial court decided the point of controversy in favor of Luz Lopez de Bueno,and Margariat Lopez appealed.

The facts necessary to an understanding of the case are these: On January 3, 1924, TomasRodriguez executed his last will and testament, in the second clause of which he declared:

I institute as the only and universal heirs to all my property, my cousin Vicente F. Lopez andhis daughter Luz Lopez de Bueno.

Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judiciallydeclared incapable of taking care of himself and had been placed under the care of his cousin Vicente F.Lopez, as guardian. On January 7, 1924, or only four days after the will above-mentioned was made,Vicente F. Lopez died; and the testator, Tomas Rodriguez, died on February 25, 1924, thereafter. At thetime the will was made Vicente F. Lopez had not presented his final accounts as guardian, and no suchaccounts had been presented by him at the time of his death. Margariat Lopez was a cousin and nearestrelative of the decedent. The will referred to, and after having been contested, has been admitted to probate

by judicial determination (Torres and Lopez de Buenovs. Lopez, 48 Phil., 772).

Our discussion of the legal problem presented should begin with article 753 of the Civil Code which ineffect declares that, with certain exceptions in favor of near relatives, no testamentary provision shall bevalid when made by a ward in favor of his guardian before the final accounts of the latter have beenapproved. This provision is of undoubted application to the situation before us; and the provision made in thewill of Tomas Rodriguez in favor of Vicente F. Lopez was not any general incapacity on his part, but aspecial incapacity due to the accidental relation of guardian and ward existing between the parties.

We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared, ineffect, that accretion take place in a testamentary succession, first when the two or more persons are calledto the same inheritance or the same portion thereof without special designation of shares; and secondly,

when one of the persons so called dies before the testator or renounces the inheritance or is disqualifying toreceive it. In the case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez deBueno, to the same inheritance without special designation of shares. In addition to this, one of the personsnamed as heir has predeceased the testator, this person being also disqualified to receive the estate even ifhe had been alive at the time of the testator's death. This article (982) is therefore also of exact applicationto the case in hand; and its effect is to give to the survivor, Luz Lopez de Bueno, not only the undivided halfwhich she would have received in conjunction with her father if he had been alive and qualified to take, butalso the half which pertained to him. There was no error whatever, therefore, in the order of the trial courtdeclaring Luz Lopez de Bueno entitled to the whole estate.

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The argument in favor of the appellant supposes that there has supervened a partial intestacy withrespect to the half of the estate which was intended for Vicente F. Lopez and that this half has descended tothe appellant, Margarita Lopez, as next of kin and sole heir at law of the decedent. In this connectionattention is directed to article 764 of the Civil Code wherein it is declared, among other things, that a will maybe valid even though the person instituted as heir is disqualified to inherit. Our attention is next invited toarticle 912 wherein it is declared, among other things, that legal succession takes place if the heir diesbefore the testator and also when the heir instituted is disqualified to succeed. Upon these provisions anargument is planted conducting to the conclusion that the will of Tomas Rodriguez was valid,notwithstanding the fact that one of the individuals named as heirs in the will was disqualified to take, and

that as a consequence Margarita Lopez s entitled to inherit the share of said disqualified heir.

We are the opinion that this contention is untenable and that the appellee clearly has the better right.In playing the provisions of the Code it is the duty of the court to harmonize its provisions as far as possible,giving due effect to all; and in case of conflict between two provisions the more general is to be consideredas being limited by the more specific. As between articles 912 and 983, it is obvious that the former is themore general of the two, dealing, as it does, with the general topic of intestate succession while the latter ismore specific, defining the particular conditions under which accretion takes place. In case of conflict,therefore, the provisions of the former article must be considered limited by the latter. Indeed, in subsection3 of article 912 the provision with respect to intestate succession is expressly subordinated to article 983 bythe expression "and (if) there is no right of accretion." It is true that the same express qualification is notfound in subsection 4 of article 912, yet it must be so understood, in view of the rule of interpretation abovereferred to, by which the more specific is held to control the general. Besides, this interpretation supplies theonly possible means of harmonizing the two provisions. In addition to this, article 986 of the Civil Codeaffords independent proof that intestate succession to a vacant portion can only occur when accretion isimpossible.

The attorneys for the appellant direct attention to the fact that, under paragraph 4 of article 912,intestate succession occurs when the heir instituted is disqualified to succeed (incapaz de suceder), while,under the last provision in paragraph 2 of article 982, accretion occurs when one of the persons called toinherit under the will is disqualified to receive the inheritance (incapaz de recibirla). A distinction is thendrawn between incapacity to succeed and incapacity to take, and it is contended that the disability of VicenteF. Lopez was such as to bring the case under article 912 rather than 982. We are of the opinion that thecase cannot be made to turn upon so refined an interpretation of the language of the Code, and at any ratethe disability to which Vicente F. Lopez was subject was not a general disability to succeed but an accidental

incapacity to receive the legacy, a consideration which makes a case for accretion rather than for intestatesuccession.

The opinions of the commentators, so far as they have expressed themselves on the subject, tend tothe conclusion that the right of accretion with regard to portions of an inheritance left vacant by the death ordisqualification of one of the heirs or his renunciation of the inheritance is governed by article 912, withoutbeing limited, to the extent supposed in appellant's brief, by provisions of the Code relative to intestatesuccession (Manresa, Comentarios al Codigo Civil Espaol, 4th ed., vol. VII, pp. 310, 311; id., 34; 13 MuciusScaevola, pp. 372, 373, 285-287; 16 Mucius Scaevola, 186). Says Escriche: "It is to be understood that oneof the coheirs or colegatees fails if nonexistent at the time of the making of the will, or he renounces theinheritance or legacy, if he dies before the testator, if the condition be not fulfilled, or if he becomesotherwise incapacitated. . . . (Diccionario de Legislacion y Jurisprudencia, vol. I, p. 225.) lawphil.net

In conclusion it may be worth observing that there has always existed both in the civil and in thecommon law a certain legal intendment, amounting to a mild presumption, against partial intestacy. InRoman law, as is well known, partial testacy systems a presumption against it, a presumption which hasits basis in the supposed intention of the testator.

The judgment appealed from will be affirmed, and it is so ordered, with costs against the appellant.

Avancea, C, J., Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 74695 September 14, 1993

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In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado,CESAR ALVARADO, petitioner,vs.HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON.LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division (CivilCases), and BAYANI MA. RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the thenIntermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of theRegional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 ofthe late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin"

wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executedholographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz,Laguna.

As testified to by the three instrumental witnesses, the notary public and by private respondent who werepresent at the execution, the testator did not read the final draft of the will himself. Instead, privaterespondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence ofthe testator, the three instrumental witnesses and the notary public. The latter four followed the reading withtheir own respective copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad

sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing somedispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then sufferingfrom glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of thenotarial will, the testator did not personally read the final draft of the codicil. Instead, it was privaterespondent who read it aloud in his presence and in the presence of the three instrumental witnesses (sameas those of the notarial will) and the notary public who followed the reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979by private respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan,Laguna. 5Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probatedwas not executed and attested as required by law; that the testator was insane or otherwise mentallyincapacitated to make a will at the time of its execution due to senility and old age; that the will was executedunder duress, or influence of fear and threats; that it was procured by undue and improper pressure andinfluence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly,that the signature of the testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a ProbateOrder was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust ofthe appeal was that the deceased was blind within the meaning of the law at the time his "Huling Habilin"and the codicil attached thereto was executed; that since the reading required by Art. 808 of the Civil Codewas admittedly not complied with, probate of the deceased's last will and codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: thatBrigido Alvarado was not blind at the time his last will and codicil were executed; that assuming hisblindness, the reading requirement of Art. 808 was substantially complied with when both documents were

read aloud to the testator with each of the three instrumental witnesses and the notary public following thereading with their respective copies of the instruments. The appellate court then concluded that although Art.808 was not followed to the letter, there was substantial compliance since its purpose of making known tothe testator the contents of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the timehis "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said articlecomplied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind atthe time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at

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three (3) feet" by reason of the glaucoma which he had been suffering from for several years and even priorto his first consultation with an eye specialist on14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator underArt. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of thesubscribing witnesses, and again, by the notary public before whom the will is

acknowledged.

Petitioner contends that although his father was not totally blind when the will and codicil were executed, hecan be so considered within the scope of the term as it is used in Art. 808. To support his stand, petitionerpresented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of theInstitute of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted inlayman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr. Roasaexplained that although the testator could visualize fingers at three (3) feet, he could no longer read eitherprinted or handwritten matters as of 14 December 1977, the day of his first consultation. 8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could stillread on the day the will and the codicil were executed but chose not to do so because of "poor

eyesight."9

Since the testator was still capable of reading at that time, the court a quo concluded that Art.808 need not be complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still capable of reading at the time hiswill and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did notdo so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private respondentto do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez13 provides an insight into the scope of the term"blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testatorifhe is blind orincapable of reading the will himself (as when he is illiterate), is to make the provisionsthereof known to him, so that he may be able to object if they are not in accordance with hiswishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for onereason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of readingthe final drafts of his will and codicil on the separate occasions of their execution due to his "poor,""defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvaradocomes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, hehad no way of ascertaining whether or not the lawyer who drafted the will and codicil did so confortably withhis instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that weascertain whether Art. 808 had been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by oneof the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. Thepurpose is to make known to the incapacitated testator the contents of the document before signing and togive him an opportunity to object if anything is contrary to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumentalwitness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicilwho read the same aloud to the testator, and read them only once, not twice as Art. 808 requires.

Private respondent however insists that there was substantial compliance and that the single reading

suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance orcompliance to the letter and since it is admitted that neither the notary public nor an instrumental witnessread the contents of the will and codicil to Brigido, probate of the latter's will and codicil should have beendisallowed.

We sustain private respondent's stand and necessarily, the petition must be denied.

This Court has held in a number of occasions that substantial compliance is acceptable where the purposeof the law has been satisfied, the reason being that the solemnities surrounding the execution of wills areintended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid andinflexible as to destroy the testamentary privilege. 14

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In the case at bar, private respondent read the testator's will and codicil aloud in the presence of thetestator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testatoraffirmed, upon being asked, that the contents read corresponded with his instructions. Only then did thesigning and acknowledgement take place. There is no evidence, and petitioner does not so allege, that thecontents of the will and codicil were not sufficiently made known and communicated to the testator. On thecontrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido hadaffirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino isthat Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressedwishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the

purpose of securing his conformity to the draft.15

Moreover, it was not only Atty. Rino who read the documents on5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise readthe will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. CrescenteO. Evidente (one of the three instrumental witnesses and the testator's physician) asked the testatorwhether the contents of the document were of his own free will. Brigido answered in the affirmative. 16 Withfour persons following the reading word for word with their own copies, it can be safely concluded that thetestator was reasonably assured that what was read to him (those which he affirmed were in accordancewith his instructions), were the terms actually appearing on the typewritten documents. This is especiallytrue when we consider the fact that the three instrumental witnesses were persons known to the testator,one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him sincechildhood.

The spirit behind the law was served though the letter was not. Although there should be strict compliancewith the substantial requirements of the law in order to insure the authenticity of the will, the formalimperfections should be brushed aside when they do not affect its purpose and which, when taken intoaccount, may only defeat the testator's will. 17

As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance bythe Court of Appeals, we quote the following pronouncement inAbangan v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution of wills is to close the door againstbad faith and fraud, to avoid the substitution of wills and testaments and to guaranty theirtruth and authenticity. Therefore the laws on the subject should be interpreted in such a way

as to attain these primordial ends. But, on the other hand, also one must not lose sight of thefact that it is not the object of the law to restrain and curtail the exercise of the right to makea will. So when an interpretation already given assures such ends, any other interpretationwhatsoever, that adds nothing but demands more requisites entirely unnecessary, uselessand frustrative of the testator's will, must be disregarded(emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" andthe codicil attached thereto. We are unwilling to cast these aside fro the mere reason that a legalrequirement intended for his protection was not followed strictly when such compliance had been renderedunnecessary by the fact that the purpose of the law, i

.e., to make known to the incapacitated testator thecontents of the draft of his will, had already been accomplished. To reiterate, substantial compliance sufficeswhere the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decisionis immediately executory. Costs against petitioner.

SO ORDERED.

Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.

Republic of the Philippines

SUPREME COURTManila

FIRST DIVISION

G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased,MARCELA RODELAS, petitioner-appellant,vs.AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

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Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3,Rule 50 of the Rules of Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal forthe probate of the holographic will of Ricardo B. Bonilla and the issuance of letterstestamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by theappellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias andEphraim Bonilla on the following grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing to producethe will within twenty days of the death of the testator as required by Rule 75, section 2 of theRules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of propertyafter death and was not intended to take effect after death, and therefore it was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced,otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested asrequired by law.

The appellees likewise moved for the consolidation of the case with another case Sp. Proc.No, 8275). Their motion was granted by the court in an order dated April 4, 1977.

On November 13, 1978, following the consolidation of the cases, the appellees moved againto dismiss the petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to themanagement and improvement of the schools and colleges founded by decedent Ricardo B.Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlikeordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in its orderof February 23, 1979.

The appellees then filed a motion for reconsideration on the ground that the order wascontrary to law and settled pronouncements and rulings of the Supreme Court, to which theappellant in turn filed an opposition. On July 23, 1979, the court set aside its order ofFebruary 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla.The court said:

... It is our considered opinion that once the original copy of the holographic will is lost, acopy thereof cannot stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter ofholographic wills the law, it is reasonable to suppose, regards the document itself as thematerial proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic will was executed on January 25,1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14years from the time of the execution of the will to the death of the decedent, the fact that theoriginal of the will could not be located shows to our mind that the decedent had discardedbefore his death his allegedly missing Holographic Will.

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Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it iscontended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does notinvolve question of fact and alleged that the trial court committed the following assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAYNOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDEDBEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be proved bymeans of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is theallowance of the will by the court after its due execution has been proved. The probate may be uncontestedor not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts maybe resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic willhas been lost or destroyed and no other copy is available, the will can not be probated because the best andonly evidence is the handwriting of the testator in said will. It is necessary that there be a comparison

between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy orxerox copy of the holographic will may be allowed because comparison can be made with the standardwritings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution andthe contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesseswho have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect.The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, itsays that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed orcarbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceasedmay be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost ordestroyed holographic will may be admitted because then the authenticity of the handwriting of thedeceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion forreconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approvethe will of the late Ricardo B. Bonilla, is hereby SET ASIDE.

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.