G.R. No. L-26615. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS AND DR. JAIME ROSARIO,Petitioners, v. HON.
CONRADO M. VASQUEZ, as Judge of the Court of First Instance of
Manila, Branch and CONSUELO GONZALES VDA. DE
PRECILLA,Respondents.
[G.R. No. L-26884. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS AND DR. JAIME ROSARIO,Petitioners, v. HON.
CONRADO M. VASQUEZ, as Judge of the Court of First Instance of
Manila, Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO
GONZALES VDA. DE PRECILLA,Respondents.
[G.R. No. L-27200. April 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S.
GONZALES VDA. DE PRECILLA, petitioner administratrix, v. SEVERINA
NARCISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN
MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO,
EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL
ROSARIO-SARMIENTO and PASCUALA
NARCISO-MANAHAN,Oppositors-Appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V.
Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et.
Al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata,
Jr. for respondent Consuelo S. Gonzales Vda. de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila.
Leandro Sevilla & Ramon C. Aquino for petitioner
administratrix.
Castro, Makalintal & Associates for oppositors-appellants
Encarnacion Narciso, Et. Al.
Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et.
Al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V.
Garcia and Antonio Jesus de Praga.
Salonga, Ordoez, Yap, Sicat & Associates for
oppositors-appellants Severina Narciso, Et. Al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for
oppositors-appellants Natividad del Rosario Sarmiento, Et. Al.
SYLLABUS
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR
DISALLOWANCE; TESTATRIXS DEFECTIVE EYESIGHT AS UNABLING HER TO READ
THE PROVISIONS OF LATER WILL. The declarations in court of the
opthalmologist as to the condition of the testatrixs eyesight fully
establish the fact that her vision remained mainly for viewing
distant objects and not for reading print; that she was, at the
time of the execution of the second will on December 29, 1960,
incapable of reading and could not have read the provisions of the
will supposedly signed by her.
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF
THE WILL; CASE AT BAR. Upon its face, the testamentary provisions,
the attestation clause and acknowledgment were crammed together
into a single sheet of paper, apparently to save on space. Plainly,
the testament was not prepared with any regard for the defective
vision of Da. Gliceria, the typographical errors remained
uncorrected thereby indicating that the execution thereof must have
been characterized by haste. It is difficult to understand that so
important a document containing the final disposition of ones
worldly possessions should be embodied in an informal and untidy
written instrument; or that the glaring spelling errors should have
escaped her notice if she had actually retained the ability to read
the purported will and had done so.
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY;
ART. 808, NEW CIVIL CODE READING OF THE WILL TWICE TO A BLIND
TESTATOR; PURPOSE. The rationale behind the requirement of reading
the will to the testator if he is blind or incapable of reading the
will himself is to make the provisions thereof known to him, so
that he may be able to object if they are not in accordance with
his wishes.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT
CASE. Where as in the 1960 will there is nothing in the record to
show that the requisites of Art. 808 of the Civil Code of the
Philippines that "if the testator is blind, the will shall be read
to him twice," have not been complied with, the said 1960 will
suffer from infirmity that affects its due execution.
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS;
ADMINISTRATORS; GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST
ADVERSE TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR UNSUITABLE TO
DISCHARGE THE TRUST; CASE AT BAR. Considering that the alleged deed
of sale was executed when Gliceria del Rosario was already
practically blind and that the consideration given seems
unconscionably small for the properties, there was likelihood that
a case for annulment might be filed against the estate or heirs of
Alfonso Precilla. And the administratrix being the widow and heir
of the alleged transferee, cannot be expected to sue herself in an
action to recover property that may turn out to belong to the
estate. This, plus her conduct in securing new copies of the owners
duplicate of titles without the courts knowledge and authority and
having the contract bind the land through issuance of new titles in
her husbands name, cannot but expose her to the charge of unfitness
or unsuitability to discharge the trust, justifying her removal
from the administration of the estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE
TITLE OR THE RIGHT OF POSSESSION OF REAL PROPERTY." On the matter
of lis pendens, the provisions of the Rules of Court are clear:
notice of the pendency of an action may be recorded in the office
of the register of deeds of the province in which the property is
situated, if the action affects "the title or the right of
possession of (such) real property."cralaw virtua1aw library
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The issue in
controversy here is simply the fitness or unfitness of said special
administratrix to continue holding the trust, it does not involve
or affect at all the title to, or possession of, the properties
covered by TCT Nos. 81735, 81736 and 81737. Clearly, the pendency
of such case (L-26615) is not an action that can properly be
annotated in the record of the titles to the properties.
D E C I S I O N
REYES, J.B.L.,J.:
G.R. No. L-27200 is an appeal from the order of the Court of
First Instance of Manila (in Sp. Proc. No. 62618) admitting to
probate the alleged last will an, testament of the late Gliceria
Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615 and
L-2684 are separate petitions for mandamus filed by certain alleged
heirs of said decedent seeking (1) to compel the probate court to
remove Consuelo S. Gonzales-Precilla as special administratrix of
the estate, for conflict of interest, to appoint a new one in her
stead; and (2) to order the Register of Deeds of Manila to annotate
notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737,
registered in the name of Alfonso Precilla, married to Consuelo
Gonzales y Narciso, and said to be properly belonging to the estate
of the deceased Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of
these cases may be stated as follows:chanrob1es virtual 1aw
library
Gliceria Avelino del Rosario died unmarried in the City of
Manila on 2 September 1965, leaving no descendents, ascendants,
brother or sister. At the time of her death, she was said to be 90
years old more or less, and possessed of an estate consisting
mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a
niece of the deceased, petitioned the Court of First Instance of
Manila for probate of the alleged last will and testament of
Gliceria A. del Rosario, executed on 29 December 1960, and for her
appointment as special administratrix of the latters estate, said
to be valued at about P100,000.00, pending the appointment of a
regular administrator thereof.
The petition was opposed separately by several groups of alleged
heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier
will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime
Rosario and children, relatives and legatees in both the 1956 and
1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus,
wards of the deceased and legatees in the 1956 and 1960 wills; (3)
Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4)
Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala
Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed
Narciso, and Vicente and Delfin, surnamed Mauricio, the latter five
groups of persons all claiming to be relatives of Doa Gliceria
within the fifth civil degree. The oppositions invariably charged
that the instrument executed in 1960 was not intended by the
deceased to be her true will; that the signatures of the deceased
appearing in the will was procured through undue and improper
pressure and influence the part of the beneficiaries and/or other
persons; that the testatrix did not know the object of her bounty;
that the instrument itself reveals irregularities in its execution,
and that the formalities required by law for such execution have
not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the
1956 will of the deceased, joined the group of Dr. Jaime Rosario in
registering opposition to the appointment of petitioner Consuelo S.
Gonzales Vda. de Precilla as special administratrix, on the ground
that the latter possesses interest adverse to the estate. After the
parties were duly heard, the probate court, in its order of 2
October 1965, granted petitioners prayer and appointed her special
administratrix of the estate upon a bond for P30,000.00. The order
was premised on the fact the petitioner was managing the properties
belonging to the estate even during the lifetime of the deceased,
and to appoint another person as administrator or co administrator
at that stage of the proceeding would only result in further
confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed
with the probate court an urgent motion to require the Hongkong
& Shanghai Bank to report all withdrawals made against the
funds of the deceased after 2 September 1965. The court denied this
motion on 22 October 1965 for being premature, it being unaware
that such deposit in the name of the deceased existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime
Rosario and children, Antonio Jesus de Praga, Natividad de Jesus
and Fr. Lucio V. Garcia, petitioned the court for the immediate
removal of the special administratrix. It was their claim that the
special administratrix and her deceased husband, Alfonso Precilla,
2 had caused Gliceria A. del Rosario to execute a simulated and
fraudulent deed of absolute sale dated 10 January 1961 allegedly
conveying unto said spouses for the paltry sum of P30,000.00
ownership of 3 parcels of land and the improvements thereon located
on Quiapo and San Nicolas, Manila, with a total assessed value of
P334,050.00. Oppositors contended that since it is the duty of the
administrator to protect and conserve the properties of the estate,
and it may become necessary that, an action for the annulment of
the deed of sale land for recovery of the aforementioned parcels of
land be filed against the special administratrix, as wife and heir
of Alfonso Precilla, the removal of the said administratrix was
imperative.
On 17 December 1965, the same oppositors prayed the court for an
order directing the Special Administratrix to deposit with the
Clerk of Court all certificates of title belonging to the estate.
It was alleged that on 22 October 1965, or after her appointment,
petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as
special administratrix of the estate of the deceased Gliceria A.
del Rosario, filed with Branch IV of the Court of First Instance of
Manila a motion for the issuance of new copies of the owners
duplicates of certain certificates of title in the name of Gliceria
del Rosario, supposedly needed by her "in the preparation of the
inventory" of the properties constituting the estate. The motion
having been granted, new copies of the owners duplicates of
certificates appearing the name of Gliceria del Rosario (among
which were TCT Nos. 66201, 66202 and 66204) were issued on 15
November 1965. On 8 December 1965, according to the oppositors, the
same special administratrix presented to the Register of Deeds the
deed of sale involving properties covered by TCT Nos. 66201, 66202
and 66204 supposedly executed by Gliceria del Rosario on 10 January
1961 in favor of Alfonso Precilla, and, in consequence, said
certificates of title were cancelled and new certificates (Nos.
81735, 81736 and 81737) were issued in the name of Alfonso
Precilla, married to Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to
probate the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In
declaring the due execution of the will, the probate court took
note that no evidence had been presented to establish that the
testatrix was not of sound mind when the will was executed; that
the fact that she had prepared an earlier will did not, prevent her
from executing another one thereafter; that the fact that the 1956
will consisted of 12 pages whereas the 1960 testament was contained
in one page does not render the latter invalid; that, the erasures
and alterations in the instrument were insignificant to warrant
rejection; that the inconsistencies in the testimonies of the
instrumental witnesses which were noted by the oppositors are even
indicative of their truthfulness. The probate court, also
considering that petitioner had already shown capacity to
administer the properties of the estate and that from the
provisions of the will she stands as the person most concerned and
interested therein, appointed said petitioner regular
administratrix with a bond for P50,000.00. From this order all the
oppositors appealed, the case being docketed in this Court as G.R.
No. L-27200.
Then, on 13 September 1966, the probate court resolved the
oppositors motion of 14 December 1965 for the removal of the then
special administratrix, as follows:jgc:chanrobles.com.ph
"It would seem that the main purpose of the motion to remove the
special administratrix and to appoint another one in her stead, is
in order that an action may be filed against the special
administratrix for the annulment of the deed of sale executed by
the decedent on January 10, 1961. Under existing documents, the
properties sold pursuant to the said deed of absolute sale no
longer forms part of the estate. The alleged conflict of interest
is accordingly not between different claimants of the same estate.
If it is desired by the movants that an action be filed by them to
annul the aforesaid deed absolute sale, it is not necessary that
the special administratrix be removed and that another one be
appointed to file such action. Such a course of action would only
produce confusion and difficulties in the settlement of the estate.
The movants may file the aforesaid proceedings, preferably in an
independent action, to secure the nullity of the deed of absolute
even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit
in court of the titles in the name of the decedent, the same was
also denied, for the reason that if the movants were referring to
the old titles, they could no longer be produced, and if they meant
the new duplicate copies thereof that were issued at the instance
of the special administratrix, there would be no necessity
therefor, because they were already cancelled and other
certificates were issued in the name of Alfonso Precilla. This
order precipitated the oppositors filing in this Court of a
petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia,
Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was given
due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the
court, the oppositors requested the Register of Deeds of Manila to
annotate a notice of lis pendens in the records of TCT Nos. 81735,
81736, and 81737 in the name of Alfonso Precilla. And when said
official refused to do so, they applied to the probate court (in
Sp. Proc. No. 62618) for an order to compel the Register of Deeds
to annotate a lis pendens notice in the aforementioned titles
contending that the matter of removal and appointment of the
administratrix, involving TCT Nos. 81735, 81736, and 81737, was
already before the Supreme Court. Upon denial of this motion on 12
November 1966, oppositors filed another mandamus action, this time
against the probate court and the Register of Deeds. The case was
docketed and given due course in this Court as G.R. No.
L-26864.
Foremost of the questions to be determined here concerns the
correctness of the order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact
that the testatrix, Gliceria A. del Rosario, during her lifetime,
executed two wills: one on 9 June 1956 consisting of 12 pages and
written in Spanish, a language that she knew and spoke, witnessed
by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez,
and acknowledged before notary public Jose Ayala; and another dated
29 December 1960, consisting of 1 page and written in Tagalog,
witnessed by Messrs. Vicente Rosales, Francisco Decena, and
Francisco Lopez and acknowledged before notary public Remigio M.
Tividad.
Called to testify on the due execution of the 1960 will,
instrumental witnesses Decena, Lopez and Rosales uniformly declared
that they were individually requested by Alfonso Precilla (the late
husband of petitioner special administratrix) to witness the
execution of the last will of Doa Gliceria A. del Rosario; that
they arrived at the house of the old lady at No. 2074 Azcarraga,
Manila, one after the other, in the afternoon of 29 December 1960;
that the testatrix at the time was apparently of clear and sound
mind, although she was being aided by Precilla when she walked; 3
that the will, which was already prepared, was first read
"silently" by the testatrix herself before she signed it; 4 that he
three witnesses thereafter signed the will in the presence of the
testatrix and the notary public and of one another. There is also
testimony that after the testatrix and the witnesses to the will
acknowledged the instrument to be their voluntary act and deed, the
notary public asked for their respective residence certificates
which were handed to him by Alfonso Precilla, clipped together; 5
that after comparing them with the numbers already written on the
will, the notary public filled in the blanks in the instrument with
the date, 29 January 1960, before he affixed his signature and seal
thereto. 6 They also testified that on that occasion no pressure or
influence has been exerted by any person upon the testatrix to
execute the will.
Of course, the interest and active participation of Alfonso
Precilla in the signing of this 1960 will are evident from the
records. The will appeared to have been prepared by one who is not
conversant with the spelling of Tagalog words, and it has been
shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a
Visayan accent. 7 The witnesses to the will, two of whom are fellow
Visayans, 8 admitted their relationship or closeness to Precilla. 9
It was Precilla who instructed them to go to the house of Gliceria
del Rosario on 29 December 1960 to witness an important document,
10 and who took their residence certificates from them a few days
before the will was signed. 11 Precilla had met the notary public
and witnesses Rosales and Lopez at the door of the residence of the
old woman; he ushered them to the room at the second floor where
the signing of the document took place; 12 then he fetched witness
Decena from the latters haberdashery shop a few doors away and
brought him to, the house the testatrix. 13 And when the will was
actually executed Precilla was present. 14
The oppositors-appellants in the present case, however,
challenging the correctness of the probate courts ruling, maintain
that on 29 December 1960 the eyesight of Gliceria del Rosario was
so poor and defective that she could not have read the provisions
of the will, contrary to the testimonies of witnesses Decena, Lopez
and Rosales.
On this point, we find the declarations in court of Dr. Jesus V.
Tamesis very material and illuminating. Said ophthalmologist, whose
expertise was admitted by both parties, testified, among other
things, that when Doa Gliceria del Rosario saw him for consultation
on 11 March 1960 he found her left eye to have cataract (opaque
lens), 15 and that it was "above normal in pressure", denoting a
possible glaucoma, a disease that leads to blindness 16 As to the
conditions of her right eye, Dr. Tamesis
declared:jgc:chanrobles.com.ph
"Q But is there anything here in the entry appearing in the
other documents Exhibits 3-B, 3-C and 3-D from which you could
inform the court as to the condition of the vision of the patient
as to the right eve?
"A Under date of August 30, 1960, is the record of refraction.
that is setting of glass by myself which showed that the right eye
with my prescription of glasses had a vision of 2 over 60 (20/60)
and for the left eye with her correction 20 over 300 (20/300).
"Q In laymans language, Doctor, what is the significance of that
notation that the right had a degree of 20 over 60 (20/60)?
"A It meant that eye at least would be able to recognize objects
or persons at a minimum distance of twenty feet.
"Q But would that grade enable the patient to read print?
"A Apparently that is only a record for distance vision, for
distance sight, not for near."cralaw virtua1aw library
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated of the
left eye of the decedent at the Lourdes Hospital on 8 August 1960;
as of 23 August 1960, inspite of the glasses her vision was only
"counting fingers," 17 at five feet. The cross-examination of the
doctor further elicited the following
responses:jgc:chanrobles.com.ph
"Q After she was discharged from the hospital you prescribed
lenses for her, or glasses?
"A After her discharge from the hospital, she was coming to my
clinic for further examination and then sometime later glasses were
prescribed.xxx
"Q And the glasses prescribed by you enabled her to read,
Doctor?
"A As far as my record is concerned, with the glasses for the
left eye which I prescribed the eye which I operated she could see
only forms but not read. That is on the left eye.
"Q How about the right eye?
"A The same, although the vision on the right eye is even better
than the left eye." (pages 34. 85. t.s.n., hearing of 23 March
1966).
Then, confronted with a medical certificate (Exhibit H) issued
by him on 29 November 1965 certifying that Gliceria del Rosario was
provided with aphakic lenses and "had been under medical
supervision up to 1963 with apparently good vision", the doctor had
this to say:jgc:chanrobles.com.ph
"Q When yon said that she had apparently good vision you mean
that she was able to read?
"A No, not necessarily, only able to go around, take care of
herself and see. This I can tell you, this report was made on pure
recollections and I recall she was using her glasses although I
recall also that we have to give her medicines to improve her
vision, some medicines to improve her identification some
more.xxx
"Q What about the vision in the right eve, was that corrected by
the glasses?
"A Yes, with the new prescription which I issued on 80 August
1960. It is in the clinical record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant objects."cralaw virtua1aw
library
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the
deceased and, therefore, has first hand knowledge of the actual
condition of her eyesight from August, 1960 up to 1963, fully
establish the fact that notwithstanding the operation and removal
of the cataract in her left eye and her being fitted with aphakic
lens (used by cataract patients), her vision remained mainly for
viewing distant objects and not for reading print. Thus, the
conclusion is inescapable that with the condition of her eyesight
in August, 1960, and there is no evidence that it had improved by
29 December 1960, Gliceria del Rosario was incapable f reading, and
could not have read the provisions of the will supposedly signed by
her on 29 December 1960. It is worth noting that the instrumental
witnesses stated that she read the instrument "silently" (t.s.n.,
pages 164-165). which is a conclusion and not a fact.
Against the background of defective eyesight of the alleged
testatrix, the appearance of the will, Exhibit "D", acquires
striking significance. Upon its face, the testamentary provisions,
the attestation clause and acknowledgment were crammed together
into a single sheet of paper, to much so that the words had to be
written very close on the top, bottom and two sides of the paper,
leaving no margin whatsoever; the word "and" had to be written by
the symbol" &", apparently to save on space. Plainly, the
testament was not prepared with any regard for the defective vision
of Doa Gliceria. Further, typographical errors like "HULINH" for
"HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES",
"instrumental" for "Instrumental", and "acknowledged" for
"acknowledge, remained uncorrected, thereby indicating that
execution thereof must have been characterized by haste. It is
difficult to understand that so important a document containing the
final disposition of ones worldly possessions should be embodied in
an informal and untidily written instrument; or that the glaring
spelling errors should have escaped her notice if she had actually
retained the ability to read the purported will and had done so.
The record is thus convincing that the supposed testatrix could not
have physically read or understood the alleged testament, Exhibit
"D", and that its admission to probate was erroneous and should be
reversed.
That Doa Gliceria should be able to greet her guests on her
birthday, arrange flowers and attend to kitchen tasks shortly prior
to the alleged execution of the testament Exhibit "D", as appears
from the photographs, Exhibits "E" to "E-1", in no way proves; that
she was able to read a closely typed page, since the acts shown do
not require vision at close range. It must be remembered that with
the natural lenses removed, her eyes had lost the power of
adjustment to near vision, the substituted glass lenses being rigid
and uncontrollable by her. Neither is the signing of checks
(Exhibits "G" to "G-3") by her indicative of ability to see at
normal reading distances. Writing or signing of ones name, when
sufficiently practiced, becomes automatic, so that one need only to
have a rough indication of the place where the signature is to be
affixed in order to be able to write it. Indeed, a close
examination of the checks, amplified in the photograph, Exhibit
"O", et seq., reinforces the contention of oppositors that the
alleged testatrix could not see at normal reading distance: the
signatures in the checks are written far above the printed base,
lines, and the names of the payees as well as the amounts written
do not appear to be in the handwriting of the alleged testatrix,
being in a much firmer and more fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the
deceased Gliceria del Rosario was, as appellant oppositors contend,
not unlike a blind testator, and the due execution of her will
would have required observance of the provisions of Article 808 of
the Civil Code.
"ART. 808. If the testator is blind, the will shall be read to
him twice; once, by one of the subscribing witnesses, and again, by
the notary public before whom the will is acknowledged."cralaw
virtua1aw library
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself
(as when he is illiterate), 18 is to make the provisions thereof
known to him, so that he may be able to object if they are not in
accordance with his wishes. That the aim of the law is to insure
that the dispositions of the will are properly communicated to and
understood by the handicapped testator, thus making them truly
reflective of his desire, is evidenced by the requirement that the
will should be read to the latter, not only once but twice, by two
different persons, and that the witnesses have to act within the
range of his (the testators) other senses. 19
In connection with the will here in question, there is nothing
in the records to show that the above requisites have been complied
with. Clearly, as already stated, the 1960 will sought to be
probated suffers from infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V.
Garcia, Et Al., against the denial by the probate court of their
petition for the removal of Consuelo Gonzales Vda. de Precilla as
special administratrix of the estate of the deceased Doa Gliceria
(Petition, G.R. No. L-26615, Annex "B").
The oppositors petition was based allegedly on the existence in
the special administratrix of an interest adverse to that of the
estate. It was their contention that through fraud her husband had
caused the deceased Gliceria del Rosario to execute a deed of sale,
dated 10 January 1961, by virtue of which the latter purportedly
conveyed unto said Alfonso D. Precilla, married to Consuelo
Gonzales y Narciso, the ownership of 3 parcels of land and the
improvements thereon, assessed at P334,050.00, for the sum of
P30,000.00.
In denying the petition, the probate court, in its order of 13
September 1966 (Annex "P", Petition) reasoned out that since the
properties were already sold no longer form part of the estate. The
conflict of interest would not be between the estate and third
parties, but among the different claimants of said properties, in
which case, according to the court, the participation of the
special administratrix in the action for annulment that may be
brought would not be necessary.
The error in this line of reasoning lies in the fact that what
was being questioned was precisely the validity of the conveyance
or sale of the properties. In short, if proper, the action for
annulment would have to be undertaken on behalf of the estate by
the special administratrix, affecting as it does the property or
rights of the deceased. 20 For the rule is that only where there is
no special proceeding for the settlement of the estate of the
deceased may the legal heirs commence an action arising out of a
right belonging to their ancestor. 21
There is no doubt that to settle the question of the due
execution and validity of the deed of sale, an ordinary and
separate action would have to be instituted, the matter not falling
within the competence of the probate court. 22 Considering the
facts then before it, i.e., the alleged deed of sale having been
executed by Gliceria del Rosario on 10 January 1961, when she was
already practically blind; and that the consideration of P30,000.00
seems to be unconscionably small for properties with a total
assessed value of P334,050.00, there was likelihood that a case for
annulment might indeed be filed against the estate or heirs of
Alfonso Precilla. And the administratrix, being the widow and heir
of the alleged transferee, cannot be expected to sue herself in an
action to recover property that may turn out to belong to the
estate. 22 Not only this, but the conduct of the special
administratrix in securing new copies of the owners duplicates of
TCT Nos. 66201, 66202, and 66204, without the courts knowledge or
authority, and on the pretext that she needed them in the
preparation of the inventory of the estate, when she must have
already known by then that the properties covered therein were
already "conveyed" to her husband by the deceased, being the
latters successor, and having the contract bind the land through
issuance of new titles in her husbands name cannot but expose her
to the charge of unfitness or unsuitableness to discharge the
trust, justifying her removal from the administration of the
estate.
With respect to the orders of the court a quo denying (1) the
oppositors motion to require the Hongkong and Shanghai Bank to
report all withdrawals made against the funds of the deceased after
2 September 1965 and (2) the motion for annotation of a lis pendens
notice on TCT Nos. 81735, 81736 and 81737, the same are to be
affirmed.
The probate court pointed out in its order of 22 October 1965
(Annex "H") that it could not have taken action on the complaint
against the alleged withdrawals from the bank deposits of the
deceased, because as of that time the court had not yet been
apprised that such deposits exist. Furthermore, as explained by the
special administratrix in her pleading of 30 October 1965, the
withdrawals referred to by the oppositors could be those covered by
checks issued in the name of Gliceria del Rosario during her
lifetime but cleared only after her death. That explanation, which
not only appears plausible but has not been rebutted by the
petitioners-oppositors, negates any charge of grave abuse in
connection with the issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions
of the Rules of Court are clear: notice of the pendency of an
action may be recorded in the office of the register of deeds of
the province in which the property is situated, if the action
affects "the title or the right of possession of (such) real
property." 23 In the case at bar, the pending action which
oppositors seek to annotate in the records of TCT Nos. 81735,
81736, and 81737 is the mandamus proceeding filed in this Court
(G.R. No. L-26615). As previously discussed in this opinion,
however, that case is concerned merely with the correctness of the
denial by the probate court of the motion for the removal of
Consuelo Gonzales Vda. de Precilla as special administratrix of the
estate of the late Gliceria del Rosario. In short, the issue in
controversy there is simply the fitness or unfitness of said
special administratrix to continue holding the trust; it does not
involve or affect at all the title to, or possession of, the
properties covered by said TCT Nos. 81735, 81736 and 81737.
Clearly, the pendency of such case (L-26615) is not an action that
can properly be annotated in the record of the titles to the
properties.
FOR THE FOREGOING REASONS, the order of the court below allowing
to probate the alleged 1960 will of Gliceria A. del Rosario is
hereby reversed and set aside. The petition in G.R. No. L-26615
being meritorious, the appealed order is set aside and the court
below is ordered to remove the administratrix, Consuelo Gonzales
Vda. de Precilla, and appoint one of the heirs intestate of the
deceased Doa Gliceria Avelino del Rosario as special administrator
for the purpose of instituting action on behalf of her estate to
recover the properties allegedly sold by her to the late Alfonso D.
Precilla. And in Case G.R. No. L-26864, petition is dismissed. No
costs.
G.R. No. 74695 September 14, 1993In 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 (Civil Cases), 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 19861of the First Civil Cases Division of the then
Intermediate Appellate Court, now Court of Appeals, which affirmed
the Order dated 27 June 19832of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and testament3with
codicil4of the 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 executed
holographic 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 were present at the execution, the testator did not
read the final draft of the will himself. Instead, private
respondent, as the lawyer who drafted the eight-paged document,
read the same aloud in the presence of the testator, the three
instrumental witnesses and the notary public. The latter four
followed the reading with their own respective copies previously
furnished them.Meanwhile, Brigido's holographic will was
subsequently admitted to probate on 9 December 1977. On the 29th
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 some
dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from glaucoma.
But the disinheritance and revocatory clauses were unchanged. As in
the case of the notarial will, the testator did not personally read
the final draft of the codicil. Instead, it was private respondent
who read it aloud in his presence and in the presence of the three
instrumental witnesses (same as those of the notarial will) and the
notary public who followed the reading using their own copies.A
petition for the probate of the notarial will and codicil was filed
upon the testator's death on 3 January 1979 by 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
probated was not executed and attested as required by law; that the
testator was insane or otherwise mentally incapacitated to make a
will at the time of its execution due to senility and old age; that
the will was executed under duress, or influence of fear and
threats; that it was procured by undue and improper pressure and
influence 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 Probate Order was issued on 27 June 1983
from which an appeal was made to respondent court. The main thrust
of the 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 Code was 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: that Brigido Alvarado was not blind at
the time his last will and codicil were executed; that assuming his
blindness, 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 the reading 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 to the 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 time his "Huling Habilin" and its codicil were executed?
If so, was the double-reading requirement of said article complied
with?Regarding the first issue, there is no dispute on the
following facts: Brigido Alvarado was not totally blind at the time
the will and codicil were executed. However, his vision on both
eyes was only of "counting fingers at three (3) feet" by reason of
the glaucoma which he had been suffering from for several years and
even prior to 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 under
Art. 808 which reads:Art. 808. If the testator is blind, the will
shall be read to him twice; once, by one of the subscribing
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, he can be so
considered within the scope of the term as it is used in Art. 808.
To support his stand, petitioner presented before the trial court a
medical certificate issued by Dr. Salvador R. Salceda, Director of
the Institute of Opthalmology (Philippine Eye Research
Institute),6the contents of which were interpreted in layman's
terms by Dr. Ruperto Roasa, whose expertise was admitted by private
respondent.7Dr. Roasa explained that although the testator could
visualize fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977, the day of
his first consultation.8On the other hand, the Court of Appeals,
contrary to the medical testimony, held that the testator could
still read on the day the will and the codicil were executed but
chose not to do so because of "poor eyesight."9Since the testator
was still capable of reading at that time, the courta quoconcluded
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 his will and
codicil were prepared, the fact remains and this was testified to
by his witnesses, that Brigido did not do so because of his
"poor,"10"defective,"11or "blurred"12vision making it necessary for
private respondent to do the actual reading for him.The following
pronouncement inGarcia vs.Vasquez13provides 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 isblind or incapable of reading the will himself (as
when he is illiterate), is to make the provisions thereof known to
him, so that he may be able to object if they are not in accordance
with his wishes . . .Clear from the foregoing is that Art. 808
applies not only to blind testators but also to those who, for one
reason or another, are "incapable of reading the(ir) will(s)."
Since Brigido Alvarado was incapable of reading the 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 Alvarado comes
within the scope of the term "blind" as it is used in Art. 808.
Unless the contents were read to him, he had no way of ascertaining
whether or not the lawyer who drafted the will and codicil did so
confortably with his instructions. Hence, to consider his will as
validly executed and entitled to probate, it is essential that we
ascertain 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 one of the instrumental witnesses
and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated
testator the contents of the document before signing and to give
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 instrumental witness, it
was the lawyer (private respondent) who drafted the eight-paged
will and the five-paged codicil who 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 or compliance to the letter and since it
is admitted that neither the notary public nor an instrumental
witness read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been
disallowed.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
purpose of the law has been satisfied, the reason being that the
solemnities surrounding the execution of wills are intended to
protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the
testamentary privilege.14In the case at bar, private respondent
read the testator's will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public.
Prior and subsequent thereto, the testator affirmed, upon being
asked, that the contents read corresponded with his instructions.
Only then did the signing and acknowledgement take place. There is
no evidence, and petitioner does not so allege, that the contents
of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the
"Huling Habilin," the day of the execution was not the first time
that Brigido had affirmed the truth and authenticity of the
contents of the draft. The uncontradicted testimony of Atty. Rino
is that Brigido Alvarado already acknowledged that the will was
drafted in accordance with his expressed wishes 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.15Moreover, 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 read the will and codicil, albeit
silently. Afterwards, Atty. Nonia de la Pena (the notary public)
and Dr. Crescente O. Evidente (one of the three instrumental
witnesses and the testator's physician) asked the testator whether
the contents of the document were of his own free will. Brigido
answered in the affirmative.16With four persons following the
reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what was
read to him (those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the typewritten
documents. This is especially true 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 since childhood.The
spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the
will, the formal imperfections should be brushed aside when they do
not affect its purpose and which, when taken into account, may only
defeat the testator's will.17As a final word to convince petitioner
of the propriety of the trial court's Probate Order and its
affirmance by the Court of Appeals, we quote the following
pronouncement inAbangan v.Abangan,18to wit:The object of the
solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and
testaments and to guaranty their truth 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 the fact thatit is not the object of the law to
restrain and curtail the exercise of the right to make a will.So
when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and 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" and the codicil attached thereto. We
are unwilling to cast these aside fro the mere reason that a legal
requirement intended for his protection was not followed strictly
when such compliance had been rendered unnecessary by the fact that
the purpose of the law,i.e., to make known to the incapacitated
testator the contents of the draft of his will, had already been
accomplished. To reiterate, substantial compliance suffices where
the purpose has been served.WHEREFORE, the petition is DENIED and
the assailed Decision of respondent Court of Appeals dated 11 April
1986 is AFFIRMED. Considering the length of time that this case has
remained pending, this decision is immediately executory. Costs
against petitioner.SO ORDERED.
G.R. No. 176943 October 17, 2008DANILO ALUAD, LEONORA ALUAD,
DIVINA ALUAD, PROSPERO ALUAD, and CONNIE
ALUAD,petitioners,vs.ZENAIDO ALUAD,respondent.D E C I S I O NCARPIO
MORALES,J.:Petitioners mother, Maria Aluad (Maria), and respondent
Zenaido Aluad were raised by the childless spouses Matilde Aluad
(Matilde) and Crispin Aluad (Crispin).Crispin was the owner of six
lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the
Pilar Cadastre, Capiz. After Crispin died, his wife Matilde
adjudicated the lots to herself.1On November 14, 1981, Matilde
executed a document entitled "Deed of Donation of Real Property
Inter Vivos"2(Deed of Donation) in favor of petitioners mother
Maria3covering all the six lots which Matilde inherited from her
husband Crispin. The Deed of Donation provided:That, for and in
consideration of the love and affection of the DONOR [Matilde] for
the DONEE [Maria],the latter being adopted and hav[ing] been
brought up by the former the DONOR, by these presents, transfer and
convey, BY WAY OF DONATION, unto the DONEE the property
above-described,to become effective upon the death of the DONOR,
but in the event that the DONEE should die before the DONOR, the
present donation shall be deemed rescindedand [of] no further force
and effect; Provided, however, thatanytime during the lifetime of
the DONOR or anyone of them who should survive, they could use[,]
encumber or even dispose of any or even all of the parcels of
landherein donated.4(Emphasis and underscoring supplied)On
September 30, 1986, Original Certificates of Title over Lot Nos.
674 and 676 were issued in Matildes name.On August 26, 1991,
Matilde sold Lot No.676to respondent by a Deed of Absolute Sale of
Real Property.5Subsequently or on January 14, 1992, Matilde
executed a last will and testament,6devising Lot Nos. 675, 677,
682, and 680 to Maria, and her "remaining properties" including Lot
No.674to respondent.Matilde died on January 25, 1994, while Maria
died on September 24 of the same year.7On August 21, 1995, Marias
heirs-herein petitioners filed before the Regional Trial Court
(RTC) of Roxas City a Complaint,8for declaration and recovery of
ownership and possession of Lot Nos.674and676, and damages against
respondent, alleging:That in 1978, plaintiff[s] possessed the two
(2) parcels of land above-described until January 1991 when
defendant entered and possessed the two (2) parcels of land
claiming as the adopted son of Crispin Aluad who refused to give
back possession until Matilde Aluad died in [1994] and then
retained the possession thereof up to and until the present time,
thus, depriving the plaintiffs of the enjoyment of said parcels of
land x x x;That after the death of Matilde R. Aluad, the plaintiffs
succeeded by inheritance by right of representation from their
deceased mother, Maria Aluad who is the sole and only daughter of
Matilde Aluad[.]9To the complaint respondent alleged in his
Answer.10ThatLot 674 is owned by the defendant as this lot was
adjudicated to him in the Last Will and Testament of Matilde Aluad
x x x while Lot 676 was purchased by him from Matilde Aluad. These
two lots are in his possession as true owners
thereof.11(Underscoring supplied)Petitioners later filed a Motion
for Leave to Amend Complaint Already Filed to Conform to
Evidence12to which it annexed an Amended Complaint13which cited the
donation of the six lots via Deed of Donation in favor of their
mother Maria. Branch 15 of the RTC granted the motion and admitted
the Amended Complaint.14Respondent filed an Amended
Answer15contending, inter alia, that the Deed of Donation is forged
and falsified and petitioners change of theory showed that "said
document was not existing at the time they filed their complaint
and was concocted by them after realizing that their false claim
that their mother was the only daughter of Matild[e] Aluad cannot
in anyway be established by them";16and thatifever said document
does exist, the same was already revoked by Matilde"when [she]
exercised all acts of dominion over said properties until she sold
Lot 676 to defendant and until her death with respect to the other
lots without any opposition from Maria Aluad."17The trial court, by
Decision18of September 20, 1996, held that Matilde could not have
transmitted any right over Lot Nos.674and676to respondent, she
having previously alienated them to Maria via the Deed of Donation.
Thus it disposed:WHEREFORE, in view of the foregoing, judgment is
hereby rendered:1. Declaring the plaintiffs as the rightful owners
of the subject Lots Nos. 674 and 676, Pilar Cadastre;2. Ordering
the defendant to deliver the possession of the subject lots to the
plaintiffs;3. Ordering the defendant to pay the plaintiffs:a.
Thirty thousand pesos (P30,000.00) as attorneys fees;b. Twenty
thousand pesos (P20,000.00), representing the income from subject
Lot 676, a year from 1991 up to the time said lot is delivered to
the plaintiffs, together with the interest thereof at the legal
rate until fully paid;c. Ten thousand pesos (P10,000.00),
representing the income from the subject Lot No. 674, a year from
1991 up to the time said lot is delivered to the plaintiffs, plus
legal interest thereof at the legal rate until fully paid; andd.
The costs of the suit.Defendants counterclaim is ordered dismissed
for lack of merit.SO ORDERED.19On petitioners motion, the trial
court directed the issuance of a writ of execution pending
appeal.20Possession of the subject lots appears to have in fact
been taken by petitioners.By Decision21of August 10, 2006, the
Court of Appeals reversed the trial courts decision, it holding
that the Deed of Donation was actually a donationmortis causa,
notinter vivos, and as such it had to, but did not, comply with the
formalities of a will. Thus, it found that the Deed of Donation was
witnessed by only two witnesses and had no attestation clause which
is not in accordance with Article 805 of the Civil Code,
reading:Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or by the
testators 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 that 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.While the appellate court declared
respondent as the rightful owner of Lot No.676,it did not so
declare with respect to Lot No. 674, as Matildes last will and
testament had not yet been probated. Thus the Court of Appeals
disposed:WHEREFORE,finding the instant petition worthy of merit,
the same is herebyGRANTEDand the Decision of the Regional Trial
Court of Roxas City, Branch 15, dated 20 September 1996, in Civil
Case No. V-6686 for declaration of ownership, recovery of ownership
and possession, and damages isREVERSEDandSET ASIDE.A new one is
entered in its steaddeclaring defendant-appellant as the lawful
owner of Lot [No.] 676of the Pilar Cadastre.
Accordingly,plaintiffs-appellees are directed to return the
possession of the said lot to the defendant-appellant.Moreover,
plaintiffs-appellees are ordered to pay P40,000.00 to
defendant-appellant as attorneys fees and litigation expenses.Costs
against plaintiffs-appellees.SO ORDERED.22(Emphasis in the
original; underscoring supplied)Their Motion for
Reconsideration23having been denied,24petitioners filed the present
Petition for Review,25contending that the Court of Appeals erredIX
X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch
15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER VIVOS IN
FAVOR OF PETITIONERS MOTHER IS IN FACT A DONATION MORTIS CAUSA.IIX
X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO.
676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE
DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME.IIIX X X WHEN IT
FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT NO. 674
AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED
OWNER THEREOF.IVX X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF
EXECUTION PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION
2, RULE 39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO
RETURN POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING
PETITIONERS TO PAY ATTORNEYS FEES AND COST[S] OF SUIT.26As did the
appellate court, the Court finds the donation to petitioners mother
one of mortis causa, it having the following characteristics:(1)It
conveys no title or ownership to the transfereebeforethe death of
the transferor; or what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control
of the property while alive;(2) Thatbefore the death of the
transferor, the transfer should be revocableby the transferor at
will,ad nutum; but revocability may be provided for indirectly by
means of a reserved power in the donor to dispose of the properties
conveyed; and(3) Thatthe transfer should be void if the transferor
should survive the transferee.27(Emphasis and underscoring
supplied)The phrase in the earlier-quoted Deed of Donation "to
become effective upon the death of the DONOR" admits of no other
interpretation than to mean that Matilde did not intend to transfer
the ownership of the six lots to petitioners mother during her
(Matildes) lifetime.28The statement in the Deed of Donation reading
"anytime during the lifetime of the DONORor anyone of them who
should survive, they coulduse, encumber or even dispose of any or
even all the parcels of land herein donated"29means that Matilde
retained ownership of the lots and reserved in her the right to
dispose them. For the right to dispose of a thing without other
limitations than those established by law is an attribute of
ownership.30The phrase in the Deed of Donation "oranyone of themwho
should survive" is of course out of sync. For the Deed of Donation
clearly stated that it would take effect upon the death of the
donor, hence, said phrase could only have referred to the donor
Matilde. Petitioners themselves concede that such phrase does not
refer to the donee, thus:x x x [I]t is well to point out that the
last provision (sentence) in the disputed paragraphshould only
refer to Matilde Aluad, the donor, because she was the only
surviving spouse at the time the donation was executedon 14
November 1981, as her husband Crispin Aluad [] had long been dead
as early as 1975.31The trial court, in holding that the donation
wasinter vivos, reasoned:x x x The donation in question is subject
to a resolutory term or period when the donor provides in the
aforequoted provisions, "but in the event that the DONEE should die
before the DONOR, the present donation shall be deemed rescinded
and [of] no further force and effect". When the donor provides that
should the "DONEE" xxx die before the DONOR, the present donation
shall be deemed rescinded and [of] no further force and effect" the
logical construction thereof is thatafter the execution of the
subject donation, the same became effective immediately and shall
be "deemed rescinded and [of] no further force and effect" upon the
arrival of a resolutory term or period, i.e., the death of the
donee which shall occur before that of the donor. Understandably,
the arrival of this resolutory term or period cannot rescind and
render of no further force and effect a donation which has never
become effective, because, certainly what donation is there to be
rescinded and rendered of no further force and effect upon the
arrival of said resolutory term or period if there was no donation
which was already effective at the time when the donee
died?32(Underscoring supplied)A similar ratio in a case had been
brushed aside by this Court, however, thus:x x x [P]etitioners
contend that the stipulation on rescission in case petitioners
[donee] die ahead of [donor] Cabatingan is a resolutory condition
that confirms the nature of the donation asinter vivos.Petitioners
arguments are bereft of merit.33x x x xx x x The herein subject
deeds expressly provide that the donation shall be rescinded in
case [donees] the petitioners predecease [the donor] Conchita
Cabatingan. As stated inReyes v. Mosqueda,one of the decisive
characteristics of a donationmortis causais that the transfer
should be considered void if the donor should survive the donee.
This is exactly what Cabatingan provided for in her donations. If
she really intended that the donation should take effect during her
lifetime and that the ownership of the properties donated to the
donee or independently of, and not by reason of her death, she
would not have expressed such proviso in the subject
deeds.34(Underscoring supplied)As the Court of Appeals observed, "x
x x [t]hat the donation ismortis causais fortified by Matildes acts
of possession as she continued to pay the taxes for the said
properties which remained under her name; appropriated the produce;
and applied for free patents for which OCTs were issued under her
name."35The donation being thenmortis causa, the formalities of a
will should have been observed36but they were not, as it was
witnessed by only two, not three or more witnesses following
Article 805 of the Civil Code.37Further, the witnesses did not even
sign the attestation clause38the execution of which clause is a
requirementseparatefrom the subscription of the will and the
affixing of signatures on the left-hand margins of the pages of the
will. So the Court has emphasized:x x x Article 805
particularlysegregates the requirement that the instrumental
witnesses sign each page of the will from the requisite that the
will be "attested and subscribedby [the instrumental witnesses].
The respective intents behind these two classes of signature[s] are
distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that thewitnesses are aware that
the page they are signing forms part of the will. On the other
hand, the signatures to the attestation clause establish that
thewitnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will.An unsigned
attestation clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses undertakings in the clause, since the
signatures that do appear on the page were directed towards a
wholly different avowal.x x xIt is the witnesses, and not the
testator,who are requiredunder Article 805 to state the number of
pages used upon which the will is written; the fact that the
testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.The only proof in the
will that the witnesses have stated these elemental facts would be
their signatures on the attestation clause.39(Emphasis and
underscoring supplied)Furthermore, the witnesses did not
acknowledge the will before the notary public,40which is not in
accordance with the requirement of Article 806 of the Civil Code
that every will must be acknowledged before a notary public by the
testator and the witnesses.More. The requirement that all the pages
of the will must be numbered correlatively in letters placed on the
upper part of each page was not also followed.41The Deed of
Donation which is, as already discussed, one of mortis causa, not
having followed theformalities of a will, it is void and
transmitted no right to petitioners mother. But even assuming
arguendo that the formalities were observed, since it was not
probated, no right to Lot Nos. 674 and 676 was transmitted to
Maria.42Matilde thus validly disposed of Lot No. 674 to respondent
by her last will and testament, subject of course to the
qualification that her (Matildes) will must be probated. With
respect to Lot No. 676, the same had, as mentioned earlier, been
sold by Matilde to respondent on August 26, 1991.Petitioners
nevertheless argue that assuming that the donation of Lot No. 674
in favor of their mother is indeedmortis causa,hence, Matilde could
devise it to respondent, the lot should nevertheless have been
awarded to them because they had acquired it by acquisitive
prescription, they having been in continuous, uninterrupted,
adverse, open, and public possession of it in good faith and in the
concept of an owner since 1978.43Petitioners failed to raise the
issue of acquisitive prescription before the lower courts, however,
they having laid their claim on the basis of inheritance from their
mother. As a general rule, points of law, theories, and issues not
brought to the attention of the trial court cannot be raised for
the first time on appeal.44For a contrary rule would be unfair to
the adverse party who would have no opportunity to present further
evidence material to the new theory, which it could have done had
it been aware of it at the time of the hearing before the trial
court.45WHEREFORE, the petition isDENIED.SO ORDERED.G.R. No.
L-38338 January 28, 1985IN THE MATTER OF THE INTESTATE ESTATE OF
ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS
& PEDRO ROXAS DE JESUS,petitioners,vs.ANDRES R. DE JESUS,
JR.,respondent.Raul S. Sison Law Office for petitioners.Rafael
Dinglasan, Jr. for heir M. Roxas.Ledesma, Guytingco Velasco and
Associates for Ledesa and A. R. de Jesus.GUTIERREZ, JR.,J.:This is
a petition for certiorari to set aside the order of respondent Hon.
Jose C. Colayco, Presiding Judge Court of First Instance of Manila,
Branch XXI disallowing the probate of the holographic Will of the
deceased Bibiana Roxas de Jesus.The antecedent facts which led to
the filing of this petition are undisputed.After the death of
spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate
Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed
by petitioner Simeon R. Roxas, the brother of the deceased Bibiana
Roxas de Jesus.On March 26, 1973, petitioner Simeon R. Roxas was
appointed administrator. After Letters of Administration had been
granted to the petitioner, he delivered to the lower court a
document purporting to be the holographic Will of the deceased
Bibiana Roxas de Jesus. On May 26, 1973, respondent Judge Jose
Colayco set the hearing of the probate of the holographic Win on
July 21, 1973.Petitioner Simeon R. Roxas testified that after his
appointment as administrator, he found a notebook belonging to the
deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24
thereof, a letter-win addressed to her children and entirely
written and signed in the handwriting of the deceased Bibiana R. de
Jesus was found. The will is dated "FEB./61 " and states: "This is
my win which I want to be respected although it is not written by a
lawyer. ...The testimony of Simeon R. Roxas was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who
likewise testified that the letter dated "FEB./61 " is the
holographic Will of their deceased mother, Bibiana R. de Jesus.
Both recognized the handwriting of their mother and positively
Identified her signature. They further testified that their
deceased mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 " was the
date when said Will was executed by their mother.Respondent Luz R.
Henson, another compulsory heir filed an "opposition to probate"
assailing the purported holographic Will of Bibiana R. de Jesus
because a it was not executed in accordance with law, (b) it was
executed through force, intimidation and/or under duress, undue
influence and improper pressure, and (c) the alleged testatrix
acted by mistake and/or did not intend, nor could have intended the
said Will to be her last Will and testament at the time of its
execution.On August 24, 1973, respondent Judge Jose C. Colayco
issued an order allowing the probate of the holographic Will which
he found to have been duly executed in accordance with
law.Respondent Luz Roxas de Jesus filed a motion for
reconsideration alleging inter alia that the alleged holographic
Will of the deceased Bibiana R. de Jesus was not dated as required
by Article 810 of the Civil Code. She contends that the law
requires that the Will should contain the day, month and year of
its execution and that this should be strictly complied with.On
December 10, 1973, respondent Judge Colayco reconsidered his
earlier order and disallowed the probate of the holographic Will on
the ground that the word "dated" has generally been held to include
the month, day, and year. The dispositive portion of the order
reads:WHEREFORE, the document purporting to be the holographic Will
of Bibiana Roxas de Jesus, is hereby disallowed for not having been
executed as required by the law. The order of August 24, 1973 is
hereby set aside.The only issue is whether or not the date "FEB./61
" appearing on the holographic Will of the deceased Bibiana Roxas
de Jesus is a valid compliance with the Article 810 of the Civil
Code which reads:ART. 810. A person may execute a holographic will
which must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.The
petitioners contend that while Article 685 of the Spanish Civil
Code and Article 688 of the Old Civil Code require the testator to
state in his holographic Win the "year, month, and day of its
execution," the present Civil Code omitted the phrase Ao mes y dia
and simply requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the holographic
Will should prevail.Respondent Luz Henson on the other hand submits
that the purported holographic Will is void for non-compliance with
Article 810 of the New Civil Code in that the date must contain the
year, month, and day of its execution. The respondent contends that
Article 810 of the Civil Code was patterned after Section 1277 of
the California Code and Section 1588 of the Louisiana Code whose
Supreme Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these is
wanting, the holographic Will is invalid. The respondent further
contends that the petitioner cannot plead liberal construction of
Article 810 of the Civil Code because statutes prescribing the
formalities to be observed in the execution of holographic Wills
are strictly construed.We agree with the petitioner.This will not
be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due
execution of Wills. We should not overlook the liberal trend of the
Civil Code in the manner of execution of Wills, the purpose of
which, in case of doubt is to prevent intestacy The underlying and
fundamental objectives permeating the provisions of the law on wigs
in this Project consists in the liberalization of the manner of
their execution with the end in view of giving the testator more
freedom in expressing his last wishes, but with sufficien
safeguards and restrictions to prevent the commission of fraud and
the exercise of undue and improper pressure and influence upon the
testator.This objective is in accord with the modem tendency with
respect to the formalities in the execution of wills. (Report of
the Code Commission, p. 103)In Justice Capistrano's concurring
opinion in Heirs ofRaymundo Castro v. Bustos(27 SCRA 327) he
emphasized that:xxx xxx xxx... The law has a tender regard for the
will of the testator expressed in his last will and testament on
the ground that any disposition made by the testator is better than
that which the law can make. For this reason, intestate succession
is nothing more than a disposition based upon the presumed will of
the decedent.Thus, the prevailing policy is to require satisfaction
of the legal requirements in order to guard against fraud and bad
faith but without undue or unnecessary curtailment of testamentary
privilegeIcasiano v. Icasiano, 11 SCRA 422). If a Will has been
executed in substantial compliance with the formalities of the law,
and the possibility of bad faith and fraud in the exercise thereof
is obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,xxx xxx xxx... More than anything
else, the facts and circumstances of record are to be considered in
the application of any given rule. If the surrounding circumstances
point to a regular execution of the wilt and the instrument appears
to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of
any suggestion of bad faith, forgery or fraud, lean towards its
admission to probate, although the document may suffer from some
imperfection of language, or other non-essential defect. ...
(Leynez v. Leynez 68 Phil. 745).If the testator, in executing his
Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or
purpose sought to be accomplished by such requisite is actually
attained by the form followed by the testator.The purpose of the
solemnities surrounding the execution of Wills has been expounded
by this Court inAbangan v. Abanga40 Phil. 476, where we ruled
that:The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. ...In particular, a complete date is required to
provide against such contingencies as that of two competing Wills
executed on the same day, or of a testator becoming insane on the
day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720).
There is no such contingency in this case.We have carefully
reviewed the records of this case and found no evidence of bad
faith and fraud in its execution nor was there any substitution of
Wins and Testaments. There is no question that the holographic Will
of the deceased Bibiana Roxas de Jesus was entirely written, dated,
and signed by the testatrix herself and in a language known to her.
There is also no question as to its genuineness and due execution.
All the children of the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the testamentary
capacity at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that the
holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to
be entertained.As a general rule, the "date" in a holographic Will
should include the day, month, and year of its execution. However,
when as in the case at bar, there is no appearance of fraud, bad
faith, undue influence and pressure and the authenticity of the
Will is established and the only issue is whether or not the date
"FEB./61" appearing on the holographic Will is a valid compliance
with Article 810 of the Civil Code, probate of the holographic Will
should be allowed under the principle of substantial
compliance.WHEREFORE, the instant petition is GRANTED. The order
appealed from is REVERSED and SET ASIDE and the order allowing the
probate of the holographic Will of the deceased Bibiana Roxas de
Jesus is reinstated.G.R. Nos. 83843-44 April 5, 1990IN THE MATTER
OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR. SAGRADO
LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR,petitioners-appellants,vs.COURT OF
APPEALS,1GAUDENCIO LABRADOR, and JESUS
LABRADOR,respondents-appellees.Benjamin C. Santos Law Offices for
petitioners.Rodrigo V. Fontelera for private respondents.
PARAS,J.:The sole issue in this case is whether or not the
alleged holographic will of one Melecio Labrador isdated, as
provided for in Article 8102of the New Civil Code.The antecedent
and relevant facts are as follows: On June 10, 1972, Melecio
Labrador died in the Municipality of Iba, province of Zambales,
where he was residing, leaving behind a parcel of land designated
as Lot No. 1916 under Original Certificate of Title No. P-1652, and
the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus,
Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.On July 28, 1975, Sagrado Labrador
(now deceased but substituted by his heirs), Enrica Labrador and
Cristobal Labrador, filed in the courta quoa petition for the
probate docketed as Special Proceeding No. 922-I of the alleged
holographic will of the late Melecio Labrador.Subsequently, on
September 30, 1975, Jesus Labrador (now deceased but substituted by
his heirs), and Gaudencio Labrador filed an opposition to the
petition on the ground that the will has been extinguished or
revoked by implication of law, alleging therein that on September
30, 1971, that is, before Melecio's death, for the consideration of
Six Thousand (P6,000) Pesos, testator Melecio executed a Deed of
Absolute Sale, selling, transferring and conveying in favor of
oppositors Jesus and Gaudencio Lot No. 1916 and that as a matter of
fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-21178.
Earlier however, in 1973, Jesus Labrador sold said parcel of land
to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p.
37)Sagrado thereupon filed, on November 28, 1975, against his
brothers, Gaudencio and Jesus, for the annulment of said purported
Deed of Absolute Sale over a parcel of land which Sagrado allegedly
had already acquired by devise from their father Melecio Labrador
under a holographic will executed on March 17, 1968, the complaint
for annulment docketed as Civil Case No. 934-I, being premised on
the fact that the aforesaid Deed of Absolute Sale is
fictitious.After both parties had rested and submitted their
respective evidence, the trial court rendered a joint decision
dated February 28, 1985, allowing the probate of the holographic
will and declaring null and void the Deed of Absolute sale. The
courta quohad also directed the respondents (the defendants in
Civil Case No. 934-I) to reimburse to the petitioners the sum of
P5,000.00 representing the redemption price for the property paid
by the plaintiff-petitioner Sagrado with legal interest thereon
from December 20, 1976, when it was paid to vendeea
retro.Respondents appealed the joint decision to the Court of
Appeals, which on March 10, 1988 modified said joint decision of
the courta quoby denying the allowance of the probate of the will
for being undated and reversing the order of reimbursement.
Petitioners' Motion for Reconsideration of the aforesaid decision
was denied by the Court of Appeals, in the resolution of June 13,
1988. Hence, this petition.Petitioners now assign the following
errors committed by respondent court, to wit:ITHE COURT OF APPEALS
ERRED IN NOT ALLOWING AND APPROVING THE PROBATE OF THE HOLOGRAPHIC
WILL OF THE TESTATOR MELECIO LABRADOR; andIITHE COURT OF APPEALS
ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT DIRECTING THE
REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING THE
REDEMPTION PRICE WAS ERRONEOUS.The alleged undated holographic will
written in Ilocano translated into English, is quoted as
follows:ENGLISH INTERPRETATION OF THE WILL OF THELATE MELECIO
LABRADOR WRITTEN IN ILOCANOBY ATTY. FIDENCIO L. FERNANDEZI First
PageThis is also where it appears in writing of the place which is
assigned and shared or the partition in favor of SAGRADO LABRADOR
which is the fishpond located and known place as Tagale.And this
place that is given as the share to him, there is a measurement of
more or less one hectare, and the boundary at the South is the
property and assignment share of ENRICA LABRADOR, also their
sister, and the boundary in the West is the sea, known as the SEA
as it is, and the boundary on the NORTH is assignment belonging to
CRISTOBAL LABRADOR, who likewise is also their brother. That
because it is now the time for me being now ninety three (93)
years, then I feel it is the right time for me to partition the
fishponds which were and had been bought or acquired by us, meaning
with their two mothers, hence there shall be no differences among
themselves, those among brothers and sisters, for it is I myself
their father who am making the apportionment and delivering to each
and everyone of them the said portion and assignment so that there
shall not be any cause of troubles or differences among the
brothers and sisters.II Second PageAnd this is the day in which we
agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the
month of March, 17th day, in the year 1968, and this decision and
or instruction of mine is the matter to be followed. And the one
who made this writing is no other than MELECIO LABRADOR, their
father.Now, this is the final disposition that I am making in
writing and it is this that should be followed and complied with in
order that any differences or troubles may be forestalled and
nothing will happen along these troubles among my children, and
that they will be in good relations among themselves, brothers and
sisters;And those improvements and fruits of the land; mangoes,
bamboos and all coconut trees and all others like the other kind of
bamboo by name of Bayog, it is their right to get if they so need,
in order that there shall be nothing that anyone of them shall
complain against the other, and against anyone of the brothers and
sisters.III THIRD PAGEAnd that referring to the other places of
property, where the said property is located, the same being the
fruits of our earnings of the two mothers of my children, there
shall be equal portion of each share among themselves, and or to be
benefitted with all those property, which property we have been
able to acquire.That in order that there shall be basis of the
truth of this writing (WILL) which I am here hereof manifesting of
the truth and of the fruits of our labor which their two mothers, I
am signing my signature below hereof, and that this is what should
be complied with, by all the brothers and sisters, the children of
their two mothers JULIANA QUINTERO PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this writing (WILL), and he is,
MELECIO LABRADOR y RALUTIN (p. 46,Rollo)The petition, which
principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with
merit.The will has been dated in the hand of the testator himself
in perfect compliance with Article 810.1wphi1It is worthy of note
to quote the first paragraph of the second page of the holographic
will,viz:And this is the day in which we agreed that we are making
the partitioning and assigning the respective assignment of the
said fishpond, and this being in the month ofMarch, 17th day, in
the year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father. (emphasis supplied) (p.
46,Rollo)The law does not specify a particular location where the
date should be placed in the will. The only requirements are that
the date be in the will itself and executed in the hand of the
testator. These requirements are present in the subject
will.Respondents claim that the date 17 March 1968 in the will was
when the testator and his beneficiaries entered into an agreement
among themselves about "the partitioning and assigning the
respective assignments of the said fishpond," and was not the date
of execution of the holographic will; hence, the will is more of an
"agreement" between the testator and the beneficiaries thereof to
the prejudice of other compulsory heirs like the respondents. This
was thus a failure to comply with Article 783 which defines a will
as "an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition
of his estate, to take effect after his death."Respondents are in
error. The intention to show17 March 1968as the date of the
execution of the will is plain from the tenor of the succeeding
words of the paragraph. As aptly put by petitioner, the will was
not an agreement but a unilateral act of Melecio Labrador who
plainly knew that what he was executing was a will. The act of
partitioning and the declaration that such partitioning as the
testator's instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate
property to be disposed of and of the character of the testamentary
act as a means to control the disposition of his estate.Anent the
second issue of finding the reimbursement of the P5,000
representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were
actually selling property belonging to another and which they had
no authority to sell, rendering such sale null and void.
Petitioners, thus "redeemed" the property from Navat for P5,000, to
immediately regain possession of the property for its disposition
in accordance with the will. Petitioners therefore deserve to be
reimbursed the P5,000.PREMISES CONSIDERED, the decision of the
Court of Appeals dated March 10, 1988 is hereby REVERSED. The
holographic will of Melecio Labrador is APPROVED and ALLOWED
probate. The private respondents are directed to REIMBURSE the
petitioners the sum of Five Thousand Pesos (P5,000.00).SO
ORDERED.
G.R. No. L-12190 August 30, 1958TESTATE ESTATE OF FELICIDAD
ESGUERRA ALTO-YAP deceased. FAUSTO E.
GAN,petitioner-appellant,vs.ILDEFONSO
YAP,oppositor-appellee.Benedicto C. Belran, Crispin D. Baizas and
Roberto H. Benitez for appellant.Arturo M. Tolentino for
appellee.BENGZON,J.:On November 20, 1951, Felicidad Esguerra Alto
Yap died of heart failure in the University of Santo Tomas
Hospital, leaving properties in Pulilan, Bulacan, and in the City
of Manila.On March 17, 1952, Fausto E. Gan initiated them
proceedings in the Manila court of first instance with a petition
for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip,
ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan,
Bulacan ay aking ipinamamana sa aking mga kamag-anakang
sumusunod:Vicente Esguerra, Sr.
.............................................5 Bahagi
Fausto E. Gan
.........................................................2
Bahagi
Rosario E. Gan
.........................................................2
Bahagi
Filomena Alto
..........................................................1
Bahagi
Beatriz Alto
..............................................................1
Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba
panglugar ay aking ipinamamana sa aking asawang si Idelfonso D. Yap
sa kondisyong siya'y magpapagawa ng isang Health Center na
nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng
Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad
Esguerra-Alto. At kun