FIRST DIVISION G.R. No. 166236 July 29, 2010 NOLI ALFONSO and ERLINDA FUNDIALAN, Petitioners, vs.

SPOUSES HENRY and LIWANAG ANDRES, Respondents. DECISION DEL CASTILLO, J.: Technical rules may be relaxed only for the furtherance of justice and to benefit the deserving. In the present petition for review, petitioners assail the August 10, 2004 Resolution1cralaw of the Court of Appeals (CA) in CA-G.R. CV. No. 78362, which dismissed the appeal before it for failure of petitioners to file their brief within the extended reglementary period. Factual Antecedents The present case stemmed from a complaint for accion publiciana with damages filed by respondent spouses Henry and Liwanag Andres against Noli Alfonso and spouses Reynaldo and Erlinda Fundialan before the Regional Trial Court (RTC), Branch 77, San Mateo, Rizal. On July 8, 1997, the RTC rendered a Decision2cralaw in favor of respondents. The dispositive portion of the Decision states: WHEREFORE, premises considered judgment is rendered in favor of the plaintiffs and against the defendants and all persons claiming rights under them who are ordered: 1. to vacate the premises located at 236 General Luna St., Dulongbayan 11, San Mateo, Rizal; 2. to jointly and severally pay the sum [of] P100.00 as reasonable compensation for the use of said premises commencing from 04 September 1995; [and] 3. to jointly and severally pay the sum of P10,000.00 as and for attorney's fees and to pay the cost of suit. SO ORDERED.3 Petitioners,4 thus, appealed to the CA.

Proceedings Before the Court of Appeals On November 5, 2003, petitioners' previous counsel was notified by the CA to file appellants' brief within 45 days from receipt of the notice. The original 45-day period expired on December 21, 2003. But before then, on December 8, 2003, petitioners' former counsel filed a Motion to Withdraw Appearance. Petitioners consented to the withdrawal. On December 19, 2003, petitioners themselves moved for an extension of 30 days or until January 21, 2004 within which to file their appellants' brief. Then on March 3, 2004, petitioners themselves again moved for a fresh period of 45 days from March 3, 2004 or until April 18, 2004 within which to file their appellants' brief. On March 17, 2004, the CA issued a Resolution:5cralaw a) noting the withdrawal of appearance of petitioners' former counsel; b) requiring petitioners to cause the Entry of Appearance of their new counsel; and c) granting petitioners' motions for extension of time to file their brief for a period totaling 75 days, commencing from December 21, 2003 or until March 5, 2004. Petitioners themselves received a copy of this Resolution only on April 6, 2004. By that time, the extension to file appellants' brief had already long expired. On April 14, 2004, the Public Attorney's Office (PAO), having been approached by petitioners, entered6cralaw its appearance as new counsel for petitioners. However, on August 10, 2004, the CA issued the assailed Resolution dismissing petitioners' appeal, to wit: FOR failure of defendants-appellants to file their brief within the extended reglementary period which expired on March 5, 2004 as per Judicial Records Division report dated July 26, 2004, the appeal is hereby DISMISSED pursuant to Sec. 1 (e), Rule 50 of the 1997 Rules of Civil Procedure. SO ORDERED. On September 6, 2004, the PAO filed their Motion for Reconsideration7cralaw which requested for a fresh period of 45 days from September 7, 2004 or until October 22, 2004 within which to file appellants' brief. On October 21, 2004, the brief8cralaw was filed by the PAO.

On November 26, 2004, the CA issued a Resolution9cralaw which denied petitioners' motion for reconsideration. Hence, this petition for review. Issues Petitioners raise the following issues: I THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING PETITIONERS' APPEAL FOR FAILURE TO FILE THEIR DEFENDANTS-APPELLANTS' BRIEF, DESPITE THE ATTENDANCE OF PECULIAR FACTS AND CIRCUMSTANCES SURROUNDING SUCH FAILURE, LIKE THE GROSS AND RECKLESS NEGLIGENCE OF THEIR FORMER COUNSEL, THE ABSENCE OF MANIFEST INTENT TO CAUSE DELAY, THE SERIOUS QUESTIONS OF LAW POSED FOR RESOLUTION BEFORE THE APPELLATE COURT, AND THE FACT THAT THE APPELLANTS' BRIEF HAD ALREADY BEEN FILED WITH THE COURT OF APPEALS AND ALREADY FORMED PART OF THE RECORDS OF THE CASE. II THE DISMISSAL OF PETITIONERS' APPEAL BY THE HONORABLE COURT OF APPEALS IS HIGHLY UNJUSTIFIED, INIQUITOUS AND UNCONSCIONABLE BECAUSE IT OVERLOOKED AND/OR DISREGARDED THE MERITS OF PETITIONERS' CASE WHICH INVOLVES A DEPRIVATION OF THEIR PROPERTY RIGHTS.10 Petitioners' Arguments Petitioners contend that their failure to file their appellants' brief within the required period was due to their indigency and poverty. They submit that there is no justification for the dismissal of their appeal specially since the PAO had just entered its appearance as new counsel for petitioners as directed by the CA, and had as yet no opportunity to prepare the brief. They contend that appeal should be allowed since the brief had anyway already been prepared and filed by the PAO before it sought reconsideration of the dismissal of the appeal and is already part of the records. They contend that the late filing of the brief should be excused under the circumstances so that the case may be decided on the merits and not merely on technicalities. Respondents' Arguments

On the other hand, respondents contend that failure to file appellants' brief on time is one instance where the CA may dismiss an appeal. In the present case, they contend that the CA exercised sound discretion when it dismissed the appeal upon petitioners' failure to file their appellants' brief within the extended period of 75 days after the original 45day period expired. Our Ruling The petition has no merit. Failure to file Brief On Time Rule 50 of the Rules of Court states: Section 1. Grounds for dismissal of appeal.-An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: xxxx (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; Petitioners plead for the suspension of the rules and cite a number of cases where the Court excused the late filing of a notice of appeal as well as the late filing of the appellant's brief. They further cite Development Bank of the Philippines v. Court of Appeals11cralaw where the late filing of the appellant's brief was excused because the Court found the case impressed with public interest. The cases cited by petitioners are not in point. In the present civil case which involves the failure to file the appellants' brief on time, there is no showing of any public interest involved. Neither is there a showing that an injustice will result due to the application of technical rules. Poverty cannot be used as an excuse to justify petitioners' complacency in allowing months to pass by before exerting the required effort to find a replacement lawyer. Poverty is not a justification for delaying a case. Both parties have a right to a speedy resolution of their case. Not only petitioners, but also the respondents, have a right to have the case finally settled without delay.

Furthermore, the failure to file a brief on time was due primarily to petitioners' unwise choices and not really due to poverty. Petitioners were able to get a lawyer to represent them despite their poverty. They were able to get two other lawyers after they consented to the withdrawal of their first lawyer. But they hired their subsequent lawyers too late. It must be pointed out that petitioners had a choice of whether to continue the services of their original lawyer or consent to let him go. They could also have requested the said lawyer to file the required appellants' brief before consenting to his withdrawal from the case. But they did neither of these. Then, not having done so, they delayed in engaging their replacement lawyer. Their poor choices and lack of sufficient diligence, not poverty, are the main culprits for the situation they now find themselves in. It would not be fair to pass on the bad consequences of their choices to respondents. Petitioners' low regard for the rules or nonchalance toward procedural requirements, which they camouflage with the cloak of poverty, has in fact contributed much to the delay, and hence frustration of justice, in the present case. No compelling reason to disregard technicalities Petitioners beg us to disregard technicalities because they claim that on the merits their case is strong. A study of the records fails to so convince us. Petitioners theorize that publication of the deed of extrajudicial settlement of the estate of Marcelino Alfonso is required before their father, Jose Alfonso (Jose) could validly transfer the subject property. We are not convinced. In Alejandrino v. Court of Appeals,12cralaw the Court upheld the effectivity of a deed of extrajudicial settlement that was neither notarized nor published. Significantly, the title of the property owned by a person who dies intestate passes at once to his heirs. Such transmission is subject to the claims of administration and the property may be taken from the heirs for the purpose of paying debts and expenses, but this does not prevent an immediate passage of the title, upon the death of the intestate, from himself to his heirs.13cralaw The deed of extrajudicial settlement executed by Filomena Santos Vda. de Alfonso and Jose evidences their intention to partition the inherited property. It delineated what portion of the inherited property would belong to whom.

The sale to respondents was made after the execution of the deed of extrajudicial settlement of the estate. The extrajudicial settlement of estate, even though not published, being deemed a partition14cralaw of the inherited property, Jose could validly transfer ownership over the specific portion of the property that was assigned to him.15cralaw The records show that Jose did in fact sell to respondents the subject property. The deed of sale executed by Jose in favor of the respondents being a public document, is entitled to full faith and credit in the absence of competent evidence that its execution was tainted with defects and irregularities that would warrant a declaration of nullity. As found by the RTC, petitioners failed to prove any defect or irregularities in the execution of the deed of sale. They failed to prove by strong evidence, the alleged lack of consent of Jose to the sale of the subject real property. As found by the RTC, although Jose was suffering from partial paralysis and could no longer sign his name, there is no showing that his mental faculties were affected in such a way as to negate the existence of his valid consent to the sale, as manifested by his thumbmark on the deed of sale. The records sufficiently show that he was capable of boarding a tricycle to go on trips by himself. Sufficient testimonial evidence in fact shows that Jose asked respondents to buy the subject property so that it could be taken out from the bank to which it was mortgaged. This fact evinces that Jose's mental faculties functioned intelligently. In view of the foregoing, we find no compelling reason to overturn the assailed CA resolution. We find no injustice in the dismissal of the appeal by the CA. Justice dictates that this case be put to rest already so that the respondents may not be deprived of their rights. WHEREFORE, the petition is DENIED. The August 10, 2004 Resolution of the Court of Appeals in CA-G.R. CV. No. 78362 is AFFIRMED. SO ORDERED.
Endnotes: 1cralaw CA rollo, p. 82; penned by Associate Justice Ruben T. Reyes and concurred in by Associate Justice s Perlita J. Tria-Tirona and Jose C. Reyes, Jr. 2cralaw Records, pp. 93-101; penned by Judge Francisco C. Rodriguez, Jr.

3cralaw Id. at 101. 4cralaw Reynaldo Fundialan did not file a Notice of Appeal; id. at 102. 5cralaw CA rollo, p. 77. 6cralaw Id. at 78-79. 7cralaw Id. at 85-89. 8cralaw Id. at 96-110. 9cralaw Id. at 121-123. 10cralaw Rollo, p. 157. 11cralaw 411 Phil. 121, 135 (2001). 12cralaw 356 Phil. 851, 862 (1998). 13cralaw Heirs of Ignacio Conti v. Court of Appeals, 360 Phil. 536, 546 (1998). Civil Code, Art. 774. 14cralaw Art. 1082 of the Civil Code states: "Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. 15cralaw See Alejandrino v. Court of Appeals, supra note 12.

SECOND DIVISION G.R. No. 139611 October 4, 2002 NOLI ALFONSO and ERLINDA FUNDIALAN, petitioners, vs. SPS. HENRY and LIWANAG ANDRES, respondents. RESOLUTION QUISUMBING, J.: On appeal are two resolutions of the Court of Appeals in CAG.R. CV No. 7450-UDK. The first, dated March 17, 1999,[1] dismissed petitioners appeal for their failure to pay docket and other lawful fees, while the second, dated August 9, 1999,[2] denied petitioners motion for reconsideration. As gleaned from the records, the following are the antecedent facts: The original case involved a complaint for accion publiciana with a claim for damages, entitled Sps. Henry Andres and Natividad Liwanag-Andres vs. Noli Alfonso and Erlinda Fundialan, docketed as Civil Case No. 1182, filed with the Regional Trial Court of San Mateo, Rizal. It was decided against herein petitioners in favor of the spouses Andres, now the respondents herein. On July 15, 1997, a copy of the decision[3] was served upon petitioners. On July 17, 1997, petitioners filed a Notice of Appeal, without the assistance of counsel and without payment of the docket and other lawful fees. On July 21, 1997, the RTC granted the notice of appeal. On August 25, 1997, respondents herein, through counsel, filed a motion to dismiss petitioners appeal, citing Section 1(c), Rule 50 of the 1997 Rules of Civil Procedure. On October 9, 1997, the trial court dismissed the motion and directed petitioners to pay the proper fees to cure the technical defect, stating thus: The Motion to Dismiss Appeal dated August 25, 1997, filed by the plaintiffs, through counsel is hereby DENIED. Defendants are directed to pay the corresponding docket fees and other required fees, within five (5) days from receipt of this Order, considering that the

1997 Rules of Civil Procedure which took effect on July 1, 1997, must at least in the meantime, be construed liberally. SO ORDERED.[4] On the same date, petitioners paid the subject fees, as evidenced by official receipts[5] issued by the RTC of San Mateo to petitioner Erlinda Fundialan. The receipts, all dated October 9, 1997, showed payments for appeal and legal research fees in Civil Case No. 1182, in compliance with the trial courts order of even date, the details of which are as follows:
PARTICULARS Appeal fee Appeal fee Legal Research O.R. No. 7403333 7402555 1880282 AMOUNT P 48.00 352.00 20.00 ----------------TOTAL P 420.00 ==========

Respondents elevated the case to the Court of Appeals. Upon a review of the records, which included the proofs of payment of the docket and appeal fees, the appellate court nevertheless resolved to dismiss the appeal in this wise: For failure of defendants-appellants to pay the required docket fees, as reported by the Judicial Records Division (JRD) on February 24, 1999, the appeal is hereby DISMISSED (Section 1 (c), Rule 50 in relation to Section 4, Rule 41, 1997 Rules of Civil Procedure). SO ORDERED.[6] On April 12, 1999, petitioners filed a Motion for Reconsideration of the foregoing resolution, which the Court of Appeals denied on August 9, 1999. Thus: THROUGH a motion for reconsideration, defendantsappellants claim having paid the docketing fees on October 9, 1997, beyond the period for perfecting an appeal. Any subsequent compliance with the formal requirements for filing an appeal as prescribed by

the Rules will not per se warrant reconsideration of Our Resolution. ACCORDINGLY, the motion for reconsideration is DENIED for lack of merit. SO ORDERED.[7] Hence, this petition. Petitioners submit that the sole issue to be resolved is whether the Court of Appeals was correct in its strict construction of the provisions of Section 1(c), Rule 50 of the 1997 Rules of Civil Procedure. Specifically, however, we find two main issues for our resolution: (1) whether or not the payment of docket and other lawful fees within the period for perfecting an appeal is mandatory; and (2) whether or not petitioners have shown sufficient reason for the relaxation of what otherwise should be a stringent application of the rule on the payment of appellate docket and other lawful fees. As ground for the dismissal of the appeal, the appellate court cites Section 1 (c), Rule 50, in relation to Section 4, Rule 41, of the 1997 Rules of Civil Procedure. Section 1 (c), Rule 50 provides: SECTION 1. Grounds for dismissal of appeal.- An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: xxx (c) Failure of the appellant to pay the docket and other lawful fees as provided in section 5 of Rule 40 and section 4 of Rule 41; xxx Section 4, Rule 41 in turn provides: SECTION 4. Appellate court docket and other lawful fees. - Within the period for taking an appeal, the appellant shall pay to the clerk of court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal. (Underscoring supplied.)

Petitioners argue for liberal construction of the Rules,[8] stating that its delay[9] in the payment of the fees, was a trivial technical oversight which was nonetheless cured by the order of the court a quo directing it to make the payment.[10] By such payment of the docket and other lawful fees, the technical deficiency was cured.[11] Petitioners also cites Section 13, Rule 41 of the 1997 Rules of Civil Procedure[12] and argues that in the case at bar, although the notice of appeal had been seasonably filed, there was the unintentional and excusable non-payment of the required fees.[13] In fact, albeit belatedly, petitioners did pay the required fees on the very day the trial court ordered its payment. According to petitioners, substantial justice should not be sacrificed over technicalities.[14] On the other hand, respondents aver that under the 1997 Rules of Civil Procedure, perfection of an appeal requires the payment of the docket and other lawful fees. Since the same were not seasonably paid, such failure to pay was a fatal defect which an order from the trial court cannot cure. [15] At the outset, it should be stressed that failure to pay the appellate docket and lawful fees is a serious matter affecting the courts jurisdiction. Time and again, we have consistently held that the payment of docket fees within the prescribed period is mandatory for the perfection of an appeal. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executory.[16] Appeal is not a right but a statutory privilege; thus, appeal must be made strictly in accordance with provisions set by law.[17] The requirement of the law under Section 4, Rule 41 is clear. The payment of appellate docket fee is not a mere technicality of law or procedure but an essential requirement for the perfection of an appeal.[18] However, notwithstanding the mandatory nature of such requirement, this Court has also held that the strict application of the jurisdictional nature of the above rule on payment of appellate docket fees may be mitigated under exceptional circumstances to better serve the interest of justice.[19] Hence, we resolve the second issue. Has petitioners presented any sufficient or satisfactory reason for the relaxation of the rules?

We note that at the time petitioners filed said notice of appeal on July 17, 1997, the Revised Rules of Civil Procedure had then very recently taken effect on July 1, 1997. In the case of Mactan Cebu International Airport Authority vs. Mangubat, 312 SCRA 463, 466-467 (1999),[20] where the notice of appeal was likewise filed only 14 days after the effectivity of the new rules, this Court has stated: We find the delay excusable. In the case of Solar Team Entertainment, Inc. vs. Ricafort the court held that failure to attach to the Answer a written explanation why alternative mode of service of pleading is availed of, thirty nine (39) days after the effectivity of the new rules, may be excused as the counsel may not have been fully aware of the new requirements. This Court further ordered that strictest compliance with the said mandatory requirement is to be enforced one month from the promulgation of the said decision on August 5, 1998. The intent of the Court is clear to afford litigants full opportunity to comply with the new rules and to temper enforcement of sanctions in view of the recency of the changes introduced by the new rules. x x x We also note that the Solicitor General observed the procedure for perfecting an appeal under the old rule wherein only the notice of appeal is filed with the trial court and the docket fees were later paid to the appellate court after notice from the latter court that payment of docket fees are due. x x x . (Underscoring supplied.) Indeed, as averred by petitioners in the present case, at the time of the filing of the notice of appeal, the changes introduced by the 1997 Rules of Civil procedure were yet novel, and even judges and lawyers needed time to familiarize themselves with the rules intricacies. The trial court acknowledged this fact when it resolved to grant the appeal, and favorably considered a liberal application of the rules in the meantime. Also material is the fact that petitioners were not assisted by counsel when they filed their notice of appeal. Indeed, it appears that on August 20, 1997,[21] petitioners former counsel made formal the withdrawal of appearance from this case. In the case of Solar Team Entertainment, Inc. vs. Ricafort, 293 SCRA 661 (1998), this Court even assumed that counsel therein may not have been fully aware yet of

the new requirements, and deemed failure to observe them excusable. In this case, where petitioners themselves filed the notice of appeal, without assistance of counsel, there is more reason to relax the application of the new rules. Respondents reliance on the case of Lazaro vs. Court of Appeals[22] is not well taken. In Lazaro, the case in the trial court was decided months after the new rules had already taken effect. The litigants had the assistance of counsel and payment of fees was made belatedly after six months from the expiration of the appeal period. This delay was not sufficiently explained. Thus, this Court saw no compelling reason therein to deviate from the strict application of the rules. Moreover, the case of Lazaro also admits that the rules may be relaxed in exceptionally meritorious cases. We also note that petitioners were not informed by the trial court that the docket fees were already due at that time. This failure of the trial court might have stemmed from the recency of the rules. Hence, fairness bids us not to take this circumstance against petitioners. While it is true, as pointed out by respondents, that the same docket fees were only paid on October 9, 1997, or more than two months after the period to appeal has lapsed, this matter was sufficiently explained by petitioners. The records bear out the fact that the notice of appeal was granted on July 21, 1997. It was only on August 25, 1997 that respondents motion to dismiss was filed. Hence, following the course of judicial proceedings, including setting the motion for hearing, filing of an opposition thereto, with a resetting of a hearing also thrown in, the said motion was only resolved on October 9, 1997. Petitioners demonstrated their willingness to pay the docket fees, as shown by their immediate compliance with the order of the trial court, on the very day the motion was resolved. Late payment of docket fees may be admitted when the party showed willingness to abide by the rules, by immediately paying the required fees.[23] WHEREFORE, the assailed resolutions in CA-G.R. CV No. 7450-UDK are SET ASIDE. The appeal is hereby REINSTATED and the case REMANDED to the Court of Appeals for further proceedings. SO ORDERED. Bellosillo, Acting C.J., (Chairman), Callejo, Sr., JJ., concur. Austria-Martinez, and

Mendoza, J., on official leave.

[1] Rollo, p. 15. [2] Id. at 11. [3] Dated July, 8, 1997. See Rollo, p. 43. [4] Rollo, p. 4. [5] Id. at 14. [6] Id. at 15. [7] Id. at 11. [8] Citing Section 6, Rule 1 thereof which provides: SECTION 6. Construction. These rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. [9] Rollo, p. 6. [10] Id. at 5. [11] Id. at 7. [12] SECTION 13. Dismissal of appeal. Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may motu propio or on motion to dismiss the appeal for having been taken out of time. [13] Rollo, p. 6. [14] Id. at 8. [15] Id. at 24. [16] Sps. Manalili vs. Sps. De Leon, G.R. No. 140858, November 27, 2001, p. 6. [17] Ibid. [18] Id. at 7. [19] Ayala Land, Inc. vs. Carpo, 345 SCRA 579, 584 (2000). [20] Citing Solar Team Entertainment, Inc. vs. Ricafort, 293 SCRA 661 (1998). [21] Rollo, p. 37. [22] 330 SCRA 208 (2000). [23] Mactan Cebu International Airport Authority vs. Mangubat, supra, citing Teofilo Gensoli and Co. vs. National Labor Relations Commission, 289 SCRA 407 (1998).

THIRD DIVISION G.R. No. 168970 January 15, 2010 CELESTINO BALUS, Petitioner, vs. SATURNINO BALUS and LEONARDA BALUS VDA. DE CALUNOD, Respondents. DECISION PERALTA, J.: Assailed in the present petition for review on certiorari under Rule 45 of the Rules of Court is the Decision1cralaw of the Court of Appeals (CA) dated May 31, 2005 in CA-G.R. CV No. 58041 which set aside the February 7, 1997 Decision of the Regional Trial Court (RTC) of Lanao del Norte, Branch 4 in Civil Case No. 3263. The facts of the case are as follows: Herein petitioner and respondents are the children of the spouses Rufo and Sebastiana Balus. Sebastiana died on September 6, 1978, while Rufo died on July 6, 1984. On January 3, 1979, Rufo mortgaged a parcel of land, which he owns, as security for a loan he obtained from the Rural Bank of Maigo, Lanao del Norte (Bank). The said property was originally covered by Original Certificate of Title No. P439(788) and more particularly described as follows: A parcel of land with all the improvements thereon, containing an area of 3.0740 hectares, more or less, situated in the Barrio of Lagundang, Bunawan, Iligan City, and bounded as follows: Bounded on the NE., along line 1-2, by Lot 5122, Csd-292; along line 2-12, by Dodiongan River; along line 12-13 by Lot 4649, Csd-292; and along line 12-1, by Lot 4661, Csd-292. x x x 2cralaw Rufo failed to pay his loan. As a result, the mortgaged property was foreclosed and was subsequently sold to the Bank as the sole bidder at a public auction held for that purpose. On November 20, 1981, a Certificate of Sale3cralaw was executed by the sheriff in favor of the Bank. The property was not redeemed within the period allowed by law. More than two years after the auction, or on January 25, 1984, the sheriff executed a Definite Deed of Sale4cralaw in the Bank's favor. Thereafter, a new title was issued in the name of the Bank.

On October 10, 1989, herein petitioner and respondents executed an Extrajudicial Settlement of Estate5cralaw adjudicating to each of them a specific one-third portion of the subject property consisting of 10,246 square meters. The Extrajudicial Settlement also contained provisions wherein the parties admitted knowledge of the fact that their father mortgaged the subject property to the Bank and that they intended to redeem the same at the soonest possible time. Three years after the execution of the Extrajudicial Settlement, herein respondents bought the subject property from the Bank. On October 12, 1992, a Deed of Sale of Registered Land6cralaw was executed by the Bank in favor of respondents. Subsequently, Transfer Certificate of Title (TCT) No. T-39,484(a.f.)7cralaw was issued in the name of respondents. Meanwhile, petitioner continued possession of the subject lot. On June 27, 1995, respondents filed a Complaint8cralaw for Recovery of Possession and Damages against petitioner, contending that they had already informed petitioner of the fact that they were the new owners of the disputed property, but the petitioner still refused to surrender possession of the same to them. Respondents claimed that they had exhausted all remedies for the amicable settlement of the case, but to no avail. On February 7, 1997, the RTC rendered a Decision9cralaw disposing as follows: WHEREFORE, judgment is hereby rendered, ordering the plaintiffs to execute a Deed of Sale in favor of the defendant, the one-third share of the property in question, presently possessed by him, and described in the deed of partition, as follows: A one-third portion of Transfer Certificate of Title No. T-39,484 (a.f.), formerly Original Certificate of Title No. P-788, now in the name of Saturnino Balus and Leonarda B. Vda. de Calunod, situated at Lagundang, Bunawan, Iligan City, bounded on the North by Lot 5122; East by shares of Saturnino Balus and Leonarda Balus-Calunod; South by Lot 4649, Dodiongan River; West by Lot 4661, consisting of 10,246 square meters, including improvements thereon. and dismissing all other claims of the parties.

The amount of P6,733.33 consigned by the defendant with the Clerk of Court is hereby ordered delivered to the plaintiffs, as purchase price of the one-third portion of the land in question. Plaintiffs are ordered to pay the costs. SO ORDERED.10 The RTC held that the right of petitioner to purchase from the respondents his share in the disputed property was recognized by the provisions of the Extrajudicial Settlement of Estate, which the parties had executed before the respondents bought the subject lot from the Bank. Aggrieved by the Decision of the RTC, herein respondents filed an appeal with the CA. On May 31, 2005, the CA promulgated the presently assailed Decision, reversing and setting aside the Decision of the RTC and ordering petitioner to immediately surrender possession of the subject property to the respondents. The CA ruled that when petitioner and respondents did not redeem the subject property within the redemption period and allowed the consolidation of ownership and the issuance of a new title in the name of the Bank, their co-ownership was extinguished. Hence, the instant petition raising a sole issue, to wit: WHETHER OR NOT CO-OWNERSHIP AMONG THE PETITIONER AND THE RESPONDENTS OVER THE PROPERTY PERSISTED/CONTINUED TO EXIST (EVEN AFTER THE TRANSFER OF TITLE TO THE BANK) BY VIRTUE OF THE PARTIES' AGREEMENT PRIOR TO THE REPURCHASE THEREOF BY THE RESPONDENTS; THUS, WARRANTING THE PETITIONER'S ACT OF ENFORCING THE AGREEMENT BY REIMBURSING THE RESPONDENTS OF HIS (PETITIONER'S) JUST SHARE OF THE REPURCHASE PRICE.11 The main issue raised by petitioner is whether co-ownership by him and respondents over the subject property persisted even after the lot was purchased by the Bank and title thereto transferred to its name, and even after it was eventually bought back by the respondents from the Bank. Petitioner insists that despite respondents' full knowledge of the fact that the title over the disputed property was already in the name of the Bank, they still proceeded to execute the subject Extrajudicial Settlement, having in mind the

intention of purchasing back the property together with petitioner and of continuing their co-ownership thereof. Petitioner posits that the subject Extrajudicial Settlement is, in and by itself, a contract between him and respondents, because it contains a provision whereby the parties agreed to continue their co-ownership of the subject property by "redeeming" or "repurchasing" the same from the Bank. This agreement, petitioner contends, is the law between the parties and, as such, binds the respondents. As a result, petitioner asserts that respondents' act of buying the disputed property from the Bank without notifying him inures to his benefit as to give him the right to claim his rightful portion of the property, comprising 1/3 thereof, by reimbursing respondents the equivalent 1/3 of the sum they paid to the Bank. The Court is not persuaded. Petitioner and respondents are arguing on the wrong premise that, at the time of the execution of the Extrajudicial Settlement, the subject property formed part of the estate of their deceased father to which they may lay claim as his heirs. At the outset, it bears to emphasize that there is no dispute with respect to the fact that the subject property was exclusively owned by petitioner and respondents' father, Rufo, at the time that it was mortgaged in 1979. This was stipulated by the parties during the hearing conducted by the trial court on October 28, 1996.12cralaw Evidence shows that a Definite Deed of Sale13cralaw was issued in favor of the Bank on January 25, 1984, after the period of redemption expired. There is neither any dispute that a new title was issued in the Bank's name before Rufo died on July 6, 1984. Hence, there is no question that the Bank acquired exclusive ownership of the contested lot during the lifetime of Rufo. The rights to a person's succession are transmitted from the moment of his death.14cralaw In addition, the inheritance of a person consists of the property and transmissible rights and obligations existing at the time of his death, as well as those which have accrued thereto since the opening of the succession.15cralaw In the present case, since Rufo lost ownership of the subject property during his lifetime, it only follows that at the time of his death, the disputed parcel of land no longer formed part of his estate to which his heirs

10

may lay claim. Stated differently, petitioner and respondents never inherited the subject lot from their father. Petitioner and respondents, therefore, were wrong in assuming that they became co-owners of the subject lot. Thus, any issue arising from the supposed right of petitioner as co-owner of the contested parcel of land is negated by the fact that, in the eyes of the law, the disputed lot did not pass into the hands of petitioner and respondents as compulsory heirs of Rufo at any given point in time. The foregoing notwithstanding, the Court finds a necessity for a complete determination of the issues raised in the instant case to look into petitioner's argument that the Extrajudicial Settlement is an independent contract which gives him the right to enforce his right to claim a portion of the disputed lot bought by respondents. It is true that under Article 1315 of the Civil Code of the Philippines, contracts are perfected by mere consent; and from that moment, the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law. Article 1306 of the same Code also provides that the contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided these are not contrary to law, morals, good customs, public order or public policy. In the present case, however, there is nothing in the subject Extrajudicial Settlement to indicate any express stipulation for petitioner and respondents to continue with their supposed co-ownership of the contested lot. On the contrary, a plain reading of the provisions of the Extrajudicial Settlement would not, in any way, support petitioner's contention that it was his and his sibling's intention to buy the subject property from the Bank and continue what they believed to be co-ownership thereof. It is a cardinal rule in the interpretation of contracts that the intention of the parties shall be accorded primordial consideration.16cralaw It is the duty of the courts to place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and the purpose which it is intended to serve.17cralaw Such intention is determined from the express terms of their

agreement, as well as their contemporaneous and subsequent acts.18cralaw Absurd and illogical interpretations should also be avoided.19 For petitioner to claim that the Extrajudicial Settlement is an agreement between him and his siblings to continue what they thought was their ownership of the subject property, even after the same had been bought by the Bank, is stretching the interpretation of the said Extrajudicial Settlement too far. In the first place, as earlier discussed, there is no coownership to talk about and no property to partition, as the disputed lot never formed part of the estate of their deceased father. Moreover, petitioner's asseveration of his and respondents' intention of continuing with their supposed co-ownership is negated by no less than his assertions in the present petition that on several occasions he had the chance to purchase the subject property back, but he refused to do so. In fact, he claims that after the Bank acquired the disputed lot, it offered to re-sell the same to him but he ignored such offer. How then can petitioner now claim that it was also his intention to purchase the subject property from the Bank, when he admitted that he refused the Bank's offer to re-sell the subject property to him? In addition, it appears from the recitals in the Extrajudicial Settlement that, at the time of the execution thereof, the parties were not yet aware that the subject property was already exclusively owned by the Bank. Nonetheless, the lack of knowledge on the part of petitioner and respondents that the mortgage was already foreclosed and title to the property was already transferred to the Bank does not give them the right or the authority to unilaterally declare themselves as co-owners of the disputed property; otherwise, the disposition of the case would be made to depend on the belief and conviction of the party-litigants and not on the evidence adduced and the law and jurisprudence applicable thereto. Furthermore, petitioner's contention that he and his siblings intended to continue their supposed co-ownership of the subject property contradicts the provisions of the subject Extrajudicial Settlement where they clearly manifested their intention of having the subject property divided or partitioned by assigning to each of the petitioner and

11

respondents a specific 1/3 portion of the same. Partition calls for the segregation and conveyance of a determinate portion of the property owned in common. It seeks a severance of the individual interests of each co-owner, vesting in each of them a sole estate in a specific property and giving each one a right to enjoy his estate without supervision or interference from the other.20cralaw In other words, the purpose of partition is to put an end to coownership,21cralaw an objective which negates petitioner's claims in the present case. WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals, dated May 31, 2005 in CAG.R. CV No. 58041, is AFFIRMED. SO ORDERED
Endnotes: 1cralaw Penned by Associate Justice Arturo G. Tayag, with Associate Justices Rodrigo F. Lim, Jr. and Normandie B. Pizarro, concurring; CA rollo, pp. 69-76. 2cralaw See Certificate of Sale and Definite Deed of Sale, Exhibits "A" and "B," respectively, records, pp. 74-75. 3cralaw Exhibit "A," records, p. 74. 4cralaw Exhibit "B," id. at 75. 5cralaw Exhibit "C"/"4," id. at 76. 6cralaw Exhibit "D," id. at 79. 7cralaw Exhibit "E," id. at 80. 8cralaw Records, pp. 1-6. 9cralaw Id. at 131-140. 10cralaw Id. at 139-140. 11cralaw Rollo, p. 21. 12cralaw See TSN, October 28, 1996 p. 2. 13cralaw Exhibit "B," records, p. 75. 14cralaw Civil Code, Art. 777. 15cralaw Civil Code, Art. 781. 16cralaw Alio v. Heirs of Angelica A. Lorenzo, G.R. No. 159550, June 27, 2008, 556 SCRA 139, 148. 17cralaw TSPIC Corporation v. TSPIC Employees Union (FFW), G.R. No. 163419, February 13, 2008, 545 SCRA 215, 226. 18cralaw Tating v. Marcella, G.R. No. 155208, March 27, 2007, 519 SCRA 79, 87. 19cralaw TSPIC Corporation v. TSPIC Employees Union (FFW), supra note 17. 20cralaw Arbolario v. Court of Appeals, 449 Phil. 357, 369 (2003). 21cralaw Cruz v. Court of Appeals, G.R. No. 122904, April 15, 2005, 456 SCRA 165, 171; Lopez v. Court of Appeals, 446 Phil. 722, 743 (2003).

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SECOND DIVISION G.R. Nos. 140371-72 November 27, 2006 DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners, vs. HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D. SEANGIO, Respondents. DECISION AZCUNA, J.: This is a petition for certiorari with application for the issuance of a writ of preliminary injunction and/or temporary restraining order seeking the nullification of the orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio." The facts of the cases are as follows: On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870 of the RTC, and praying for the appointment of private respondent Elisa D. SeangioSantos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio. Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the deceased Segundo executed a general power of attorney in favor of Virginia giving her the power to manage and exercise control and supervision over his business in the Philippines; 3) Virginia is the most competent and qualified to serve as the administrator of the estate of Segundo because she is a certified public
1

accountant; and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the purported holographic will, petitioners averred that in the event the decedent is found to have left a will, the intestate proceedings are to be automatically suspended and replaced by the proceedings for the probate of the will. On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP. Proc. No. 99 93396, was filed by petitioners before the RTC. They likewise reiterated that the probate proceedings should take precedence over SP. Proc. No. 9890870 because testate proceedings take precedence and enjoy priority over intestate proceedings. [2] The document that petitioners refer to as Segundos holographic will is quoted, as follows: Kasulatan sa pag-aalis ng mana Tantunin ng sinuman Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw. Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking. At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia. Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.

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Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi. [3] (signed) Segundo Seangio Nilagdaan sa harap namin (signed) Dy Yieng Seangio (signed) Unang Saksi ikalawang saksi (signed) ikatlong saksi On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc. No. 9993396 were consolidated. [4] On July 1, 1999, private respondents moved for the dismissal of the probate proceedings 5 primarily on the ground that the document purporting to be the holographic will of Segundo does not contain any disposition of the estate of the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code. According to private respondents, the will only shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence, there is preterition which would result to intestacy. Such being the case, private respondents maintained that while procedurally the court is called upon to rule only on the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of the same, and ordering the dismissal of the petition for probate when on the face of the will it is clear that it contains no testamentary disposition of the property of the decedent. Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the authority of the probate court is limited only to a determination of the extrinsic validity of the will; 2) private respondents question the intrinsic and not the extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on preterition does not apply because Segundos will does not constitute a universal heir

or heirs to the exclusion of one or more compulsory heirs. [6] On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate proceedings: A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she not being a compulsory heir in the direct line. As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has made its position clear: "for respondents to have tolerated the probate of the will and allowed the case to progress when, on its face, the will appears to be intrinsically void would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (underscoring supplied). WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for lack of merit. Special Proceedings No. 9993396 is hereby DISMISSED without pronouncement as to costs. SO ORDERED. [7] Petitioners motion for reconsideration was denied by the RTC in its order dated October 14, 1999. Petitioners contend that: THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT: I

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THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATORS TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW; II EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATORS WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND, III RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS. Petitioners argue, as follows: First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court which respectively mandate the court to: a) fix the time and place for proving the will when all concerned may appear to contest the allowance thereof, and cause notice of such time and place to be published three weeks successively previous to the appointed time in a newspaper of general circulation; and, b) cause the mailing of said notice to the heirs, legatees and devisees of the testator Segundo; Second, the holographic will does not contain any institution of an heir, but rather, as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory heir. Thus, there is no preterition in the decedents will and the holographic will on its face is not intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the direct line of Segundo were preterited in the holographic will since there was no institution of an heir; Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both intrinsically and extrinsically valid, respondent judge was mandated to proceed with the hearing of the testate case; and, Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners, and will render nugatory the disinheritance of Alfredo. The purported holographic will of Segundo that was presented by petitioners was dated, signed and written by him in his own handwriting. Except on the ground of preterition, private respondents did not raise any issue as regards the authenticity of the document. The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundos intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited therein. In effect, Alfredo was disinherited by Segundo. For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected through a will wherein the legal cause therefor shall be specified. With regard to the reasons for the disinheritance that were stated by Segundo in his document, the Court believes that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or descendant under Article 919 of the Civil Code: Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;

15

(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) A refusal without justifiable cause to support the parents or ascendant who disinherit such child or descendant; (6) Maltreatment of the testator by word or deed, by the child or descendant; [8] (7) When a child or descendant leads a dishonorable or disgraceful life; (8) Conviction of a crime which carries with it the penalty of civil interdiction. Now, the critical issue to be determined is whether the document executed by Segundo can be considered as a holographic will. A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. Segundos document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of Segundo himself. An intent to dispose mortis causa [9] can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latters property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of Alfredo. [10] Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. [11]

Holographic wills, therefore, being usually prepared by one who is not learned in the law, as illustrated in the present case, should be construed more liberally than the ones drawn by an expert, taking into account the circumstances surrounding the execution of the instrument and the intention of the testator. [12] In this regard, the Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last testamentary act and was executed by him in accordance with law in the form of a holographic will. Unless the will is probated, [13] the disinheritance cannot be given effect. [14] With regard to the issue on preterition, [15] the Court believes that the compulsory heirs in the direct line were not preterited in the will. It was, in the Courts opinion, Segundos last expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir [16] to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the document did not operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation between Segundo and his son, Alfredo. Considering that the questioned document is Segundos holographic will, and that the law favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to dispose of his property may be rendered nugatory. [17] In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be probated. It is settled that testate proceedings for the settlement of the estate of the decedent take precedence over intestate proceedings for the same purpose. [18] WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is directed to reinstate and hear SP Proc. No. 9993396 for the allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the termination of the aforesaid testate proceedings.

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No costs. SO ORDERED.
Footnotes [1] Under Rule 65 of the Rules of Court. [2] Records, p. 20. [3] Id. at 17. [4] Id. at 63. [5] Id. at 65. [6] Id. at 82. [7] Id. at 96. [8] Emphasis supplied. [9] Article 783 of the Civil Code states: "A will is 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." [10] Tolentino, Arturo M., "Commentaries and Jurisprudence on the Civil Code of the Philippines," Volume III, p. 30. [11] Id. at 38. [12] Id. at 37-39. [13] In a petition to admit a holographic will to probate, the only issues to be resolved are: 1) whether the instrument submitted is, indeed, the decedents last will and testament; 2) whether said will was executed in accordance with the formalities prescribed by law; 3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and, 4) whether the execution of the will and its signing were the voluntary acts of the decedents. As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional circumstances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will ( Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, 236 SCRA 488). [14] Supra note 10. [15] Article 854 of the Civil Code states: "The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devisees and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation." [16] Article 841 of the Civil Code states: "A will is valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs." [17] Maninang v. Court of Appeals, No. L-57848, June 19, 1982, 114 SCRA 478. [18] Cuenco v. Court of Appeals, No. L-24742, October 26, 1973, 53 SCRA 360.

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THIRD DIVISION G.R. No. 157451 December 16, 2005 LETICIA VALMONTE ORTEGA, Petitioner, vs. JOSEFINA C. VALMONTE, Respondent. DECISION PANGANIBAN, J.: The law favors the probate of a will. Upon those who oppose it rests the burden of showing why it should not be allowed. In the present case, petitioner has failed to discharge this burden satisfactorily. For this reason, the Court cannot attribute any reversible error on the part of the appellate tribunal that allowed the probate of the will. The Case Before the Court is a Petition for Review under Rule 45 of the Rules of Court, seeking to reverse and set aside the December 12, 2002 Decision2 and the March 7, 2003 Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed as follows: "WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET ASIDE. In its place judgment is rendered approving and allowing probate to the said last will and testament of Placido Valmonte and ordering the issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the court a quo for further and concomitant proceedings."4 The assailed Resolution denied petitioners Motion for Reconsideration. The Facts The facts were summarized in the assailed Decision of the CA, as follows: "x x x: Like so many others before him, Placido toiled and lived for a long time in the United States until he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his arrival from the United States and at the age of 80 he wed Josefina who was then 28 years old, in a ceremony
1

solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause written down as COR PULMONALE. "Placido executed a notarial last will and testament written in English and consisting of two (2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page contains the entire testamentary dispositions and a part of the attestation clause, and was signed at the end or bottom of that page by the testator and on the left hand margin by the three instrumental witnesses. The second page contains the continuation of the attestation clause and the acknowledgment, and was signed by the witnesses at the end of the attestation clause and again on the left hand margin. It provides in the body that: LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN: I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and disposing mind and memory, do hereby declare this to be my last will and testament: 1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in accordance with the rites and said Church and that a suitable monument to be erected and provided my by executrix (wife) to perpetuate my memory in the minds of my family and friends; 2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portion of the followdescribed properties, which belongs to me as [co-owner]: a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila, described and covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-Manila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having share and share alike; b. 2-storey building standing on the above-described property, made of strong and mixed materials used as my residence and my wife and located at No. 9200 Catmon Street, Makati, Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly in the name

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of my deceased sister, Ciriaca Valmonte and myself as coowners, share and share alike or equal co-owners thereof; 3. All the rest, residue and remainder of my real and personal properties, including my savings account bank book in USA which is in the possession of my nephew, and all others whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C. Valmonte; 4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament, and it is my will that said executrix be exempt from filing a bond; IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City, Philippines. "The allowance to probate of this will was opposed by Leticia on the grounds that: 1. Petitioner failed to allege all assets of the testator, especially those found in the USA; 2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give them proper notice pursuant to law; 3. Will was not executed and attested as required by law and legal solemnities and formalities were not complied with; 4. Testator was mentally incapable to make a will at the time of the alleged execution he being in an advance sate of senility; 5. Will was executed under duress, or the influence of fear or threats; 6. Will was procured by undue and improper influence and pressure on the part of the petitioner and/or her agents and/or assistants; and/or 7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument should be his will at the time of affixing his signature thereto; and she also opposed the appointment as Executrix of Josefina alleging her want of understanding and integrity. "At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and

Josie Collado. For the opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified. "According to Josefina after her marriage with the testator they lived in her parents house at Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00 monthly pension and stayed at the said Makati residence. There were times though when to shave off on expenses, the testator would travel alone. And it was in one of his travels by his lonesome self when the notarial will was made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado. Josefina said she had no knowledge of the existence of the last will and testament of her husband, but just serendipitously found it in his attache case after his death. It was only then that she learned that the testator bequeathed to her his properties and she was named the executrix in the said will. To her estimate, the value of property both real and personal left by the testator is worth more or less P100,000.00. Josefina declared too that the testator never suffered mental infirmity because despite his old age he went alone to the market which is two to three kilometers from their home cooked and cleaned the kitchen and sometimes if she could not accompany him, even traveled to Manila alone to claim his monthly pension. Josefina also asserts that her husband was in good health and that he was hospitalized only because of a cold but which eventually resulted in his death. "Notary Public Floro Sarmiento, the notary public who notarized the testators will, testified that it was in the first week of June 1983 when the testator together with the three witnesses of the will went to his house cum law office and requested him to prepare his last will and testament. After the testator instructed him on the terms and dispositions he wanted on the will, the notary public told them to come back on June 15, 1983 to give him time to prepare it. After he had prepared the will the notary public kept it safely hidden and locked in his drawer. The testator and his witnesses returned on the appointed date but the notary public was out of town so they were instructed by his wife to come back on August 9, 1983, and which they did. Before the testator and his witnesses signed the prepared will, the notary public explained to them each and every term thereof in Ilocano, a dialect which the testator spoke and understood. He likewise explained that though it appears that the will was signed by the testator and his witnesses on

19

June 15, 1983, the day when it should have been executed had he not gone out of town, the formal execution was actually on August 9, 1983. He reasoned that he no longer changed the typewritten date of June 15, 1983 because he did not like the document to appear dirty. The notary public also testified that to his observation the testator was physically and mentally capable at the time he affixed his signature on the will. "The attesting witnesses to the will corroborated the testimony of the notary public, and testified that the testator went alone to the house of spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and requested them to accompany him to the house of Atty. Floro Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro Sarmiento, they were told to return on June 15, 1983; that they returned on June 15, 1983 for the execution of the will but were asked to come back instead on August 9, 1983 because of the absence of the notary public; that the testator executed the will in question in their presence while he was of sound and disposing mind and that he was strong and in good health; that the contents of the will was explained by the notary public in the Ilocano and Tagalog dialect and that all of them as witnesses attested and signed the will in the presence of the testator and of each other. And that during the execution, the testators wife, Josefina was not with them. "The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are other children from the siblings of Placido who are just as entitled to inherit from him. She attacked the mental capacity of the testator, declaring that at the time of the execution of the notarial will the testator was already 83 years old and was no longer of sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati residence and asked Leticias family to live with him and they took care of him. During that time, the testators physical and mental condition showed deterioration, aberrations and senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a fancy and wanted to marry. "Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the opposition to two grounds, namely: 1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the will; and

2. Mental incapacity of the testator at the time of the execution of the will as he was then in an advanced state of senility "It then found these grounds extant and proven, and accordingly disallowed probate."5 Ruling of the Court of Appeals Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. The CA upheld the credibility of the notary public and the subscribing witnesses who had acknowledged the due execution of the will. Moreover, it held that the testator had testamentary capacity at the time of the execution of the will. It added that his "sexual exhibitionism and unhygienic, crude and impolite ways"6 did not make him a person of unsound mind. Hence, this Petition.7 Issues Petitioner raises the following issues for our consideration: "I. Whether or not the findings of the probate court are entitled to great respect. "II. Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or trickery, and that Placido Valmonte never intended that the instrument should be his last will and testament. "III. Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the subject will."8 In short, petitioner assails the CAs allowance of the probate of the will of Placido Valmonte. This Courts Ruling The Petition has no merit. Main Issue: Probate of a Will

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At the outset, we stress that only questions of law may be raised in a Petition for Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence presented during the trial may be examined and the factual matters resolved by this Court when, as in the instant case, the findings of fact of the appellate court differ from those of the trial court.9 The fact that public policy favors the probate of a will does not necessarily mean that every will presented for probate should be allowed. The law lays down the procedures and requisites that must be satisfied for the probate of a will.10 Verily, Article 839 of the Civil Code states the instances when a will may be disallowed, as follows: "Article 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto." In the present case, petitioner assails the validity of Placido Valmontes will by imputing fraud in its execution and challenging the testators state of mind at the time. Existence of Fraud in the Execution of a Will Petitioner does not dispute the due observance of the formalities in the execution of the will, but maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is the testators wife and sole beneficiary, conspired with the notary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly reflected

in the varying dates of the execution and the attestation of the will. Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost immediately plunge into marriage with a man who [was] thrice her age x x x and who happened to be [a] Fil-American pensionado," 11 thus casting doubt on the intention of respondent in seeking the probate of the will. Moreover, it supposedly "defies human reason, logic and common experience"12 for an old man with a severe psychological condition to have willingly signed a last will and testament. We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the subject of it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he executes, or it may relate to some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain will which, but for the fraud, he would not have made."13 We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its execution.14 The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud.15 Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence of fraud was ever presented. It is a settled doctrine that the omission of some relatives does not affect the due execution of a will.16 That the testator was tricked into signing it was not sufficiently established by the fact that he had instituted his wife, who was more than fifty years his junior, as the sole beneficiary; and disregarded petitioner and her family, who were the ones who had taken "the cudgels of taking care of [the testator] in his twilight years."17 Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will does not invalidate the document, "because the law does not even require that a [notarial] will x x x be executed and acknowledged on the same occasion."18 More important, the will must be subscribed by the testator, as well as by three or more credible witnesses who must also attest to it in the presence of the testator and of one another.19 Furthermore, the testator and the witnesses must acknowledge the will

21

before a notary public.20 In any event, we agree with the CA that "the variance in the dates of the will as to its supposed execution and attestation was satisfactorily and persuasively explained by the notary public and the instrumental witnesses."21 The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced respectively as follows: "Atty. Floro Sarmiento: Q You typed this document exhibit C, specifying the date June 15 when the testator and his witnesses were supposed to be in your office? A Yes sir. Q On June 15, 1983, did the testator and his witnesses come to your house? A They did as of agreement but unfortunately, I was out of town. xxxxxxxxx Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing therein. Was this the actual date when the document was acknowledged? A Yes sir. Q What about the date when the testator and the three witnesses affixed their respective signature on the first and second pages of exhibit C? A On that particular date when it was acknowledged, August 9, 1983. Q Why did you not make the necessary correction on the date appearing on the body of the document as well as the attestation clause? A Because I do not like anymore to make some alterations so I put it in my own handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10) Eugenio Gomez: Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the acknowledgement it is dated

August 9, 1983, will you look at this document and tell us this discrepancy in the date? A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was first week of June and Atty. Sarmiento told us to return on the 15th of June but when we returned, Atty. Sarmiento was not there. Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back? A We returned on the 9th of August and there we signed. Q This August 9, 1983 where you said it is there where you signed, who were your companions? A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8) Felisa Gomez on cross-examination: Q Why did you have to go to the office of Atty. Floro Sarmiento, three times? xxxxxxxxx A The reason why we went there three times is that, the first week of June was out first time. We went there to talk to Atty. Sarmiento and Placido Valmonte about the last will and testament. After that what they have talked what will be placed in the testament, what Atty. Sarmiento said was that he will go back on the 15th of June. When we returned on June 15, Atty. Sarmiento was not there so we were not able to sign it, the will. That is why, for the third time we went there on August 9 and that was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6) Josie Collado: Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired? A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983. Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento? A Yes, Sir. Q For what purpose? A Our purpose is just to sign the will.

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Q Were you able to sign the will you mentioned? A Yes sir. (tsn, October 21, 1987, pp. 4-5)"
22

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a fraud. There was no showing that the witnesses of the proponent stood to receive any benefit from the allowance of the will. The testimonies of the three subscribing witnesses and the notary are credible evidence of its due execution.23 Their testimony favoring it and the finding that it was executed in accordance with the formalities required by law should be affirmed, absent any showing of ill motives.24 Capacity to Make a Will In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines: "Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. "Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered by disease, injury or other cause. "It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. "Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. "The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval." According to Article 799, the three things that the testator must have the ability to know to be considered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the proper objects of the testators bounty, and (3) the character of the testamentary act. Applying this test to the present case, we find that the appellate court was correct in holding that Placido had testamentary capacity at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of property he owned, the extent of his shares in them and even their locations. As regards the proper objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. As we have stated earlier, the omission of some relatives from the will did not affect its formal validity. There being no showing of fraud in its execution, intent in its disposition becomes irrelevant. Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held thus: "Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degrees of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind."26 WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED. Costs against petitioner. SO ORDERED.
Footnotes
1

Rollo, pp. 9-25.

Annex "A" of Petition; id., pp. 26-43. Penned by Justice Roberto A. Barrios (Fourteenth Division chair) and concurred in by Justices Perlita J. Tria-Tirona and Edgardo F. Sundiam (members).
3

Annex "C" of Petition; id., pp. 54-56. CA Decision, p. 18; rollo, p. 43. Id., pp. 3-8 & 28-33. Id., pp. 15 & 40.

23

The case was deemed submitted for decision on July 14, 2004, upon this Courts receipt of petitioners Memorandum, signed by Atty. Manuel T. de Guia. Respondents Memorandum, filed on April 19, 2004, was signed by Atty. Benigno P. Pulmano.
8

Petitioners Memorandum, p. 6; rollo, p. 331. Original in uppercase.

Heirs of Saludares v. CA, 420 SCRA 51, January 16, 2004; Heirs of Celestial v. Celestial, 408 SCRA 291, August 5, 2003; Garrido v. CA, 421 Phil. 872, November 22, 2001; Meralco v. CA, 413 Phil. 338, July 11, 2001.
10

Leviste v. CA, 169 SCRA 580, January 30, 1989. Petitioners Memorandum, p. 19; rollo, p. 344. Id., pp. 14 & 339.

11

12

13

Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. III (1992), p. 166.
14

Pecson v. Coronel, 45 Phil. 216, October 11, 1923. Cuyugan v. Baron, 62 Phil. 859, January 16, 1936.

15

16

Heirs of the Late Matilde Montinola-Sanson v. CA, 158 SCRA 247, February 26, 1988; Pascual v. dela Cruz, 138 Phil. 446, May 30, 196; Rodriguez v. CA, 137 Phil. 371, March 28, 1969; In the Matter of the Testate Estate of the Juana Juan Vda. De Molo, 100 Phil. 344, November 26, 1956; Barrera v. Tampoco, 94 Phil. 346, February 17, 1954; Pecson v. Coronel, 45 Phil. 216, October 11, 1923.
17

Petitioners Memorandum, p. 18; rollo, p. 343. CA Decision, p. 11; rollo, p. 36. Article 805, Civil Code. Article 806, id. CA Decision, p. 9; rollo, p. 34. Id., pp. 9-11 & 34-36.

18

19

20

21

22

23

Gonzales v. CA, 90 SCRA 183, May 25, 1979; Vda.de Ramos v CA, 81 SCRA 393, January 31, 1978; Roxas v. Roxas, 87 Phil. 692, December 1, 1950.
24

Gonzales v. CA, supra; Galvez v. Galvez, 26 Phil. 243, December 5, 1913. 92 SCRA 332, July 30, 1979 (citing Bugnao v. Ubag, 14 Phil. 163, September 18, 1909). Id., p. 363, per Guerrero, J.

25

26

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THIRD DIVISION G.R. No. 122880 April 12, 2006 FELIX AZUELA, Petitioner, vs. COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents. DECISION TINGA, J.: The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code. A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection. There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy. The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO SA NGALAN NG MAYKAPAL, AMEN: AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento: Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang tagapag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan; Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubalit at kondiciones; Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya. Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981. (Sgd.) EUGENIA E. IGSOLO (Tagapagmana)

PATUNAY NG MGA SAKSI Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito. EUGENIA E. IGSOLO address: 500 San Diego St. Sampaloc, Manila Res. Cert. No. A-7717-37 Issued at Manila on March 10, 1981. QUIRINO AGRAVA address: 1228-Int. 3, Kahilum Pandacan, Manila Res. Cert. No. A-458365 Issued at Manila on Jan. 21, 1981

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LAMBERTO C. LEAO address: Avenue 2, Blcok 7, Lot 61, San Gabriel, G.MA., Cavite Res. Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 JUANITO ESTRERA address: City Court Compound, City of Manila Res. Cert. No. A574829 Issued at Manila on March 2, 1981. Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila. (Sgd.) PETRONIO Y. BAUTISTA Doc. No. 1232 ; NOTARIO PUBLIKO Page No. 86 ; Until Dec. 31, 1981 Book No. 43 ; PTR-152041-1/2/81-Manila Series of 1981 TAN # 1437-977-81

acknowledged. These twin arguments are among the central matters to this petition. After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositors arguments that the will was not properly executed and attested to in accordance with law. After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law. On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following statement is made under the subtitle, "Patunay Ng Mga Saksi": "Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito." The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial compliance with the requirements of the law. On the oppositors contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page

The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause. The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor, Vart Prague. The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent. 2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioners right to occupy the properties of the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5 Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedents signature did not appear on the second page of the will, and the will was not properly

26

of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will. With regard to the oppositors argument that the will was not numbered correlatively in letters placed on upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect. As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will.8 The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-inlaw, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for probate. 9 The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate.10 Hence, the present petition. Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory, and thus susceptible to what he termed as "the substantial compliance rule."11 The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full. Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and

subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies. As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will. 12 There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with. The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to state the number of pages contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet

27

would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty."16 The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material."18 Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval: Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of pages used upon which the will is written. Hence, the Will is void and undeserving of probate. We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not

state the number of pages used in the will, however, the same was found in the last part of the body of the Will: "x x x The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations." (page 165165, supra) (Underscoring supplied) In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of pages used in the: "x x x We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the

28

instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists of two pages including this page" (pages 200-201, supra) (Underscoring supplied). However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.21 Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision governing the formal requirement of wills was Section 618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is extant from Section 618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805." In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and fundamental objective permeating the provisions on the [law] on [wills] 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. This objective is in accord with the [modern tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently omits the qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator."25

Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of strict construction.28 However, the Code Commission opted to recommend a more liberal construction through the "substantial compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied: x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.29 (Emphasis supplied.) The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded. Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can be liberally

29

construed, since that fact can be checked by a visual examination; while a failure by the attestation clause to state that the witnesses signed in one anothers presence should be considered a fatal flaw since the attestation is the only textual guarantee of compliance.32 The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages.33 The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada. However, in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will. At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills.34 Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will.35 The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testators incontestable desires, and not for the indulgent admission of wills to probate. The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a

couple of even more critical defects that should necessarily lead to its rejection. For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public. Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin. We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.39 The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from the

30

requisite that the will be "attested and subscribed by [the instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses 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 the witnesses 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. The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under 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. Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the attestation clause. Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that "every will must be acknowledged before a notary public by the testator and the witnesses" has also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate provision, Article 806. The

non-observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import. In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed. It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized" the document. Possibly though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses. Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act. 43 The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It

31

also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will. It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public. There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss them at length, as they are no longer material to the disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so-called "logical end"44 of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever executed the will. All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable. WHEREFORE, petitioner. SO ORDERED.
Footnotes
1

Id. Penned by Judge Perfecto Laguio, Jr. Rollo, p. 41. Id. at 41-42.

Decision penned by Associate Justice (now Supreme Court Associate Justice) Romeo J. Callejo, Sr., and concurred in by Associate Justices Jorge S. Imperial and Pacita Caizares-Nye.
10

See rollo, pp. 46-50. Id. at 24. See rollo, p. 26. 43 Phil. 405 (1922). 42 Phil. 180 (1921). Uy Coque v. Navas L. Sioca, supra note 13, at 409. Id. In re: Will of Andrada, supra note 14 at 181. Id. at 182. 92 Phil. 161 (1952). No. L-36033, 5 November 1982, 118 SCRA 195. Rollo, pp. 47-49. Underscoring not ours. Section 618 of the Code of Civil Procedure as amended by Act No. 2645 reads:

11

12

13

14

15

16

17

18

19

20

21

22

"No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or effect the same, unless it be written in the language or dialect known by the testator and signed by him, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. 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, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet. The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and each other."
23

Id. Rollo, pp. 23-25. See Report of the Code Commission, p. 103. The full citation reads:

24

25

"The underlying and fundamental objectives permeating the provisions of the law on wills 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 sufficient 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 modern tendency with respect to the formalities in the execution of wills. The proposed Code provides for two forms of will, namely, (1) the holographic, and (2) the ordinary will."
26

the

petition

is

DENIED.

Costs

against

G.R. No. 103554, 28 May 1993, 222 SCRA 781. Id. at 795-800. Id. at 796-797.

27

28

29

Rollo, pp. 21-22. Id. at 35. Id. at 36. Records, p. 505.

Id. at 794; citing Lawyers Journal, November 30, 1950, 566. In the same article, Justice J.B.L. Reyes suggested that Article 809 be reworded in such a manner that the will would not be rendered invalid if the defects and imperfections in the attestation "can be supplied by an examination of the will itself and it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805." See R. Balane, Jottings and Jurisprudence in Civil Law (1998 ed.) at 87, citing Lawyers Journal, November 30, 1950.
30

Id. at 792-793.

32

31

Id. at 800. See Balane, supra note 29, at 87. Caneda v. Court of Appeals, supra note 26 at 790; citing Andrada, supra note 14.

32

33

34

The Code Commission did qualify in its Report that the thrust towards liberalization be qualified "with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator" Supra note 25.
35

"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. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will." A. Tolentino, III Civil Code of the Philippines (1992 ed.), at 67.
36

92 Phil. 1032 (1953) Id. at 1033. Justices Felix Bautista Angelo, Pedro Tuason and Felicisimo R. Feria. Cagro v. Cagro, supra note 36, at 1033-1034. Rollo, p. 22. Tigno v. Aquino, G.R. No. 129416, 25 November 2004, 444 SCRA 61, 72.

37

38

39

40

41

42

See Gamido v. New Bilibid Prisons Officials, 312 Phil. 100, 104; citing Theobald v. Chicago Ry. Co., 75 Ill. App. 208.
43

Protacio v. Mendoza, Adm. Case No. 5764, 13 January 2003, 395 SCRA 10, 15; citing Coronado v. Felongco, 344 SCRA 565 (2000); Nunga v. Viray, 306 SCRA 487 (1999); Arrieta v. Llosa, 282 SCRA 248 (1997); Dinoy v. Rosal, 235 SCRA 419 (1994).
44

To use the term adopted by eminent civilists Prof. Balane and Dr. Tolentino, who distinguish "the physical end where the writing stops" from "the logical end where the last testamentary disposition ends." See Balane, supra note 29 at 60; Tolentino, supra note 35, at 70.
45

See e.g., Balane, supra note 28 at 63, 67; Tolentino, supra note 34, at 104.

33

FIRST DIVISION A.C. No. 5281 February 12, 2008 MANUEL L. LEE, petitioner, vs. ATTY. REGINO B. TAMBAGO, respondent. RESOLUTION CORONA, J.: In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament. In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will. Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its execution. In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, halfsiblings of complainant. The will was purportedly executed and acknowledged before respondent on June 30, 1965.1 Complainant, however, pointed out that the residence certificate2 of the testator noted in the acknowledgment of the will was dated January 5, 1962.3 Furthermore, the signature of the testator was not the same as his signature as donor in a deed of donation 4 (containing his purported genuine signature). Complainant averred that the signatures of his deceased father in the will and in the deed of donation were "in any way (sic) entirely and diametrically opposed from (sic) one another in all angle[s]."5 Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and Grajo. He alleged that their signatures had likewise been forged and merely copied from their respective voters affidavits. Complainant further asserted that no copy of such purported will was on file in the archives division of the Records Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In this

connection, the certification of the chief of the archives division dated September 19, 1999 stated: Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in this Office[s] files.6 Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged that complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and testament was validly executed and actually notarized by respondent per affidavit7 of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx."9 Respondent further stated that the complaint was filed simply to harass him because the criminal case filed by complainant against him in the Office of the Ombudsman "did not prosper." Respondent did not dispute complainants contention that no copy of the will was on file in the archives division of the NCCA. He claimed that no copy of the contested will could be found there because none was filed. Lastly, respondent pointed out that complainant had no valid cause of action against him as he (complainant) did not first file an action for the declaration of nullity of the will and demand his share in the inheritance. In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.10 In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial Law as found in the Revised Administrative Code. The violation constituted an infringement of legal ethics, particularly Canon 111 and Rule 1.0112 of the Code of Professional Responsibility (CPR).13 Thus, the investigating commissioner of the IBP Commission on Bar Discipline recommended the suspension of respondent for a period of three months. The IBP Board of Governors, in its Resolution No. XVII-2006285 dated May 26, 2006, resolved:

34

[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondents failure to comply with the laws in the discharge of his function as a notary public, Atty. Regino B. Tambago is hereby suspended from the practice of law for one year and Respondents notarial commission is Revoked and Disqualified from reappointment as Notary Public for two (2) years.14 We affirm with modification. A will is 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. 15 A will may either be notarial or holographic. The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity.16 A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself. In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.17 The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be considered void.18 This is in consonance with the rule that acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the witnesses.19 The importance of this requirement is highlighted by the fact that it was segregated from the other requirements under Article 805 and embodied in a distinct and separate provision.20 An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step

undertaken whereby the signatory actually declares to the notary public that the same is his or her own free act and deed.21 The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testators wishes long after his demise and (2) to assure that his estate is administered in the manner that he intends it to be done. A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testators old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will. As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will and those of notarization. As we held in Santiago v. Rafanan:22 The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before him had presented the proper residence certificate (or exemption from the residence tax); and to enter its number, place of issue and date as part of such certification. These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight attached to notarized documents.23 A notary public, especially a lawyer,24 is bound to strictly observe these elementary requirements. The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or instrument: Section 251. Requirement as to notation of payment of [cedula] residence tax. Every contract, deed, or other document acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of such certificate the number, place of issue, and date of each [cedula] residence certificate as aforesaid.25

35

The importance of such act was further reiterated by Section 6 of the Residence Tax Act26 which stated: When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the residence certificate showing payment of the residence taxes by such person xxx. In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it is issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an expired residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the Residence Tax Act. As much could be said of his failure to demand the exhibition of the residence certificates of Noynay and Grajo. On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives division, Article 806 provides: Art. 806. Every will must be acknowledged before a notary public by the testator and the witness. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. (emphasis supplied) Respondents failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a cause for disciplinary action. Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his notarial register. The old Notarial Law required the entry of the following matters in the notarial register, in chronological order: 1. nature of each instrument executed, sworn to, or acknowledged before him; 2. person executing, swearing to, or acknowledging the instrument; 3. witnesses, if any, to the signature; 4. date of execution, oath, or acknowledgment of the instrument;

5. fees collected by him for his services as notary; 6. give each entry a consecutive number; and 7. if the instrument is a contract, a brief description of the substance of the instrument.27 In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had crossed out a prior entry and entered instead the will of the decedent. As proof, he presented a photocopy of his notarial register. To reinforce his claim, he presented a photocopy of a certification28 stating that the archives division had no copy of the affidavit of Bartolome Ramirez. A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is unavailable. The proponent must first prove the existence and cause of the unavailability of the original,29 otherwise, the evidence presented will not be admitted. Thus, the photocopy of respondents notarial register was not admissible as evidence of the entry of the execution of the will because it failed to comply with the requirements for the admissibility of secondary evidence. In the same vein, respondents attempt to controvert the certification dated September 21, 199930 must fail. Not only did he present a mere photocopy of the certification dated March 15, 2000;31 its contents did not squarely prove the fact of entry of the contested will in his notarial register. Notaries public must observe with utmost care32 and utmost fidelity the basic requirements in the performance of their duties, otherwise, the confidence of the public in the integrity of notarized deeds will be undermined.33 Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be taken lightly in view of the importance and delicate nature of a will, considering that the testator and the witnesses, as in this case, are no longer alive to identify the instrument and to confirm its contents. 34 Accordingly, respondent must be held accountable for his acts. The validity of the will was seriously compromised as a consequence of his breach of duty.35 In this connection, Section 249 of the old Notarial Law provided:

36

Grounds for revocation of commission. The following derelictions of duty on the part of a notary public shall, in the discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission: xxx xxx xxx (b) The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law. xxx xxx xxx (f) The failure of the notary to make the proper notation regarding cedula certificates.36 These gross violations of the law also made respondent liable for violation of his oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court37 and Canon 138 and Rule 1.0139 of the CPR. The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution and obey the laws of the land.40 For a lawyer is the servant of the law and belongs to a profession to which society has entrusted the administration of law and the dispensation of justice.41 While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a lawyer should moreover make himself an example for others to emulate.42 Being a lawyer, he is supposed to be a model in the community in so far as respect for the law is concerned.43 The practice of law is a privilege burdened with conditions.44 A breach of these conditions justifies disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or acknowledgment that he has engaged in professional misconduct.45 These sanctions meted out to errant lawyers include disbarment, suspension and reprimand. Disbarment is the most severe form of disciplinary sanction.46 We have held in a number of cases that the power to disbar must be exercised with great caution47 and should not be decreed if any punishment less severe such as reprimand, suspension, or fine will accomplish the end desired.48 The rule then is that disbarment is meted out only

in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court.49 Respondent, as notary public, evidently failed in the performance of the elementary duties of his office. Contrary to his claims that he "exercised his duties as Notary Public with due care and with due regard to the provision of existing law and had complied with the elementary formalities in the performance of his duties xxx," we find that he acted very irresponsibly in notarizing the will in question. Such recklessness warrants the less severe punishment of suspension from the practice of law. It is, as well, a sufficient basis for the revocation of his commission50 and his perpetual disqualification to be commissioned as a notary public.51 WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law. Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial commission REVOKED. Because he has not lived up to the trustworthiness expected of him as a notary public and as an officer of the court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary public. Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as made part of the personal records of respondent. SO ORDERED.
Footnotes
1

Rollo, p. 3. Now known as Community Tax Certificate. Page two, Last Will and Testament of Vicente Lee, Sr., rollo, p. 3. Id., p. 10. Id., p. 1. Rollo, p. 9. Dated July 11, 2001. Id., p. 94. Dated July 11, 2001. Id., p. 95.

37

Id., p. 90. Rollo, p. 107.

41

10

Agpalo, Ruben E., Legal And Judicial Ethics, 7th Edition (2002), Rex Bookstore, Inc., p. 69. Comments of IBP Committee that drafted the Code of Professional Responsibility, pp. 1-2 (1980).
42

11

CANON 1 A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES.
12

Id. Id. Agpalo, Ruben E., Legal And Judicial Ethics, 7th Edition (2002), Rex Bookstore, Inc., p. 465.

43

Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

44

13

Annex "A," Report and Recommendation by Commissioner Elpidio G. Soriano III, dated February 27 2006. Rollo, p. 13.
14

45

Guidelines for Imposing Lawyer Sanctions, Integrated Bar of the Philippines Commission on Bar Discipline.
46

Notice of Resolution, IBP Board of Governors. (Emphasis in the original) Civil Code, Art. 783.

San Jose Homeowners Association, Inc. v. Romanillos, A.C. No. 5580, 15 June 2005, 460 SCRA 105.

15

47

16

Jurado, Desiderio P., Comments And Jurisprudence On Succession, 8th ed. (1991), Rex Bookstore, Inc., p. 52. In re: Will of Tan Diuco, 45 Phil. 807 (1924); Unson v. Abella, 43 Phil. 494 (1922); Aldaba v. Roque, 43 Phil. 379 (1922); Avera v. Garcia, 42 Phil. 145 (1921); Abangan v. Abangan, 40 Phil. 476 (1919).
17

Santiago v Rafanan, supra note 22 at 101. Alitagtag v. Garcia, A.C. No. 4738, 10 June 2003, 403 SCRA 335.
48

Suzuki v. Tiamson, A.C. No. 6542, 30 September 2005, 471 SCRA 140; Amaya v. Tecson, A.C. No. 5996, 7 February 2005, 450 SCRA 510, 516.
49

Bantolo v. Castillon, Jr., A.C. No. 6589, 19 December 2005, 478 SCRA 449.

Civil Code, Art. 804. Civil Code, Art. 5. Civil Code, Art. 806. Azuela v. Court of Appeals, G.R. No. 122880, 12 April 2006, 487 SCRA 142. Id. A.C. No. 6252, 5 October 2004, 440 SCRA 98. Santiago v. Rafanan, id., at 99.

50

18

Cabanilla v. Cristal-Tenorio, A.C. No. 6139, 11 November 2003, 415 SCRA 361. Guerrero v. Hernando, 160-A Phil. 725 (1975).
51

19

Tan Tiong Bio v. Gonzales, A.C. No. 6634, 23 August 2007.

20

21

22

23

24

Under the old Notarial Law, non-lawyers may be commissioned as notaries public subject to certain conditions. Under the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC, effective August 1, 2004), however, only lawyers may be granted a notarial commission.
25

Revised Administrative Code, Book I, Title IV, Chapter 11, Sec. 251. Commonwealth Act No. 465. Revised Administrative Code, Book I, Title IV, Chapter 11, Sec. 246. Dated March 15, 2000. Rollo, p. 105.

26

27

28

29

"When the original document is unavailable. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated." RULES OF COURT, Rule 130, Sec. 5.
30

Supra note 6. Rollo, p. 105. Bon v. Ziga, A.C. No. 5436, 27 May 2004, 429 SCRA 185. Zaballero v. Montalvan, A.C. No. 4370, 25 May 2004, 429 SCRA 78.

31

32

33

34

Annex "A," Report and Recommendation by Commissioner Elpidio G. Soriano III, dated February 27, 2006, rollo, p. 12
35

Id., p. 13. Revised Administrative Code, Book 1, Title IV, Chapter 11. "Duties of attorneys. It is the duty of an attorney:

36

37

(a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines; (b) Xxx," RULES OF COURT, Rule 138, Sec. 20, par. (a).
38

CANON 1, supra note 11. Rule 1.01, supra note 12.

39

40

Montecillo v. Gica, 158 Phil. 443 (1974). Zaldivar v. Gonzales, G.R. No. L-79690-707, 7 October 1988, 166 SCRA 316.

38

SECOND DIVISION G.R. No. 183053 June 16, 2010 IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA AGUINALDO-SUNTAY; EMILIO A.M. SUNTAY III, Petitioner, vs. ISABEL COJUANGCO-SUNTAY, Respondent. DECISION NACHURA, J.: Unlike Pope Alexander VI1 who, faced with the impasse between Spain and Portugal, deftly and literally divided the exploration, or more appropriately, the riches of the New World by issuing the Inter Caetera,2 we are confronted with the difficult, albeit, all too familiar tale of another family imbroglio over the estate of a decedent.3 This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision of the Court of Appeals (CA) in CA-G.R. CV No. 74949,4 reversing the decision of the Regional Trial Court (RTC), Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95.5 Before anything else, we disentangle the facts. On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr. Federico Suntay (Federico), died intestate. In 1979, their only son, Emilio Aguinaldo Suntay (Emilio I), predeceased both Cristina and Federico. At the time of her death, Cristina was survived by her husband, Federico, and several grandchildren, including herein petitioner Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-Suntay. During his lifetime, Emilio I was married to Isabel Cojuangco, and they begot three children, namely: herein respondent, Isabel; Margarita; and Emilio II, all surnamed CojuangcoSuntay. Emilio Is marriage to Isabel Cojuangco was subsequently annulled. Thereafter, Emilio I had two children out of wedlock, Emilio III and Nenita Suntay Taedo (Nenita), by two different women, Concepcion Mendoza and Isabel Santos, respectively. Despite the illegitimate status of Emilio III, he was reared ever since he was a mere baby, nine months old, by the spouses Federico and Cristina and was an acknowledged natural child of Emilio I. Nenita is an acknowledged natural

child of Emilio I and was likewise brought up by the spouses Federico and Cristina. As previously adverted to, the marriage between Emilio I and Isabel was annulled.6 Consequently, respondent and her siblings Margarita and Emilio II, lived with their mother on Balete Drive, Quezon City, separately from their father and paternal grandparents. Parenthetically, after the death of Emilio I, Federico filed a petition for visitation rights over his grandchildren: respondent Isabel, Margarita, and Emilio II. Although the Juvenile and Domestic Relations Court in Quezon City granted the petition and allowed Federico one hour of visitation monthly, initially reduced to thirty minutes, it was altogether stopped because of a manifestation filed by respondent Isabel, articulating her sentiments on the unwanted visits of her grandparents. Significantly, Federico, after the death of his spouse, Cristina, or on September 27, 1993, adopted their illegitimate grandchildren, Emilio III and Nenita.71avvphi1 On October 26, 1995, respondent filed a petition for the issuance of letters of administration in her favor, containing the following allegations: [A]t the time of [the decedents] death, [she] was a resident of the Municipality of Hagonoy, Province of Bulacan; that the [decedent] left an estate of real and personal properties, with a probable gross value of P29,000,000.00; that the names, ages and residences of the surviving heirs of the [decedent] are: (1) Federico C. Suntay, 89 years old, surviving spouse and a resident of x x x; (2) Isabel Cojuangco-Suntay, 36 years old, legitimate granddaughter and a resident of x x x; (3) Margarita Cojuangco-Suntay, 39 years old, legitimate granddaughter and a resident of x x x; and (4) Emilio Cojuangco-Suntay, 35 years old, legitimate grandson and a resident of x x x; and that as far as [respondent] knew, the decedent left no debts or obligation at the time of her death.8 Disavowing the allegations in the petition of his grandchild, respondent Isabel, Federico filed his opposition on December 21, 1995, alleging, among others, that: [B]eing the surviving spouse of Cristina, he is capable of administering her estate and he should be the one appointed as its administrator; that as part owner of the

39

mass of conjugal properties left by Cristina, he must be accorded legal preference in the administration thereof; that Isabel and her family had been alienated from their grandparents for more than thirty (30) years; that the enumeration of heirs in the petition was incomplete as it did not mention the other children of his son[,] namely: Emilio III and Nenita S. Taedo; that he is better situated to protect the integrity of the estate of Cristina as even before the death of his wife[,] he was already the one who managed their conjugal properties; that the probable value of the estate as stated in the petition was grossly overstated (sic); and that Isabels allegation that some of the properties are in the hands of usurpers is untrue.9 Meanwhile, after a failed attempt by the parties to settle the proceedings amicably, Federico filed a Manifestation dated March 13, 1999, nominating his adopted son, Emilio III, as administrator of the decedents estate on his behalf, in the event he would be adjudged as the one with a better right to the letters of administration. Subsequently, the trial court granted Emilio IIIs Motion for Leave to Intervene considering his interest in the outcome of the case. Emilio III filed his Opposition-In-Intervention, which essentially echoed the allegations in his grandfathers opposition, alleging that Federico, or in his stead, Emilio III, was better equipped than respondent to administer and manage the estate of the decedent, Cristina. Additionally, Emilio III averred his own qualifications that: "[he] is presently engaged in aquaculture and banking; he was trained by the decedent to work in his early age by involving him in the activities of the Emilio Aguinaldo Foundation which was established in 1979 in memory of her grandmothers father; the significant work experiences outside the family group are included in his curriculum vitae; he was employed by the oppositor [Federico] after his graduation in college with management degree at F.C.E. Corporations and Hagonoy Rural Bank; x x x."10 In the course of the proceedings, on November 13, 2000, Federico died. After the testimonies of both parties witnesses were heard and evidence on their respective allegations were adduced, the trial court rendered a decision on November 9, 2001, appointing herein petitioner, Emilio III, as administrator of decedent Cristinas intestate estate, to wit:

WHEREFORE, the petition of Isabel Cojuangco[-]Suntay is DENIED and the Opposition[-]in[-]Intervention is GRANTED. Accordingly, the Intervenor, Emilio A.M. Suntay, III is hereby appointed administrator of the estate of the decedent Cristina Aguinaldo Suntay, who shall enter upon the execution of his trust upon the filing of a bond in the amount of P200,000.00, conditioned as follows: (1) To make and return within three (3) months, a true and complete inventory; (2) To administer the estate and to pay and discharge all debts, legatees, and charge on the same, or dividends thereon; (3) To render a true and just account within one (1) year, and at any other time when required by the court, and (4) To perform all orders of the Court. Once the said bond is approved by the court, let Letters of Administration be issued in his favor. SO ORDERED.11 Aggrieved, respondent filed an appeal before the CA, which reversed and set aside the decision of the RTC, revoked the Letters of Administration issued to Emilio III, and appointed respondent as administratrix of the intestate estate of the decedent, Cristina, to wit: WHEREFORE, in view of all the foregoing, the assailed decision dated November 9, 2001 of Branch 78, Regional Trial Court of Malolos, Bulacan in SPC No. 117-M-95 is REVERSED and SET ASIDE and the letters of administration issued by the said court to Emilio A.M. Suntay III, if any, are consequently revoked. Petitioner Isabel Cojuangco[-]Suntay is hereby appointed administratrix of the intestate estate of Cristina Aguinaldo Suntay. Let letters of administration be issued in her favor upon her filing of a bond in the amount of Two Hundred Thousand (P200,000.00) Pesos. No pronouncement as to costs. SO ORDERED.12 The motion for reconsideration of Emilio III having been denied, he appeals by certiorari to this Court, raising the following issues:

40

A. IN THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE UNDER SECTION 6 OF RULE 78 OF THE RULES OF COURT, WHETHER ARTICLE 992 OF THE CIVIL CODE APPLIES; and B. UNDER THE UNDISPUTED FACTS WHERE HEREIN PETITIONER WAS REARED BY THE DECEDENT AND HER SPOUSE SINCE INFANCY, WHETHER ARTICLE 992 OF THE NEW CIVIL CODE APPLIES SO AS TO BAR HIM FROM BEING APPOINTED ADMINISTRATOR OF THE DECEDENTS ESTATE.13

unqualified, it is clear to the court that when it comes to management of real estate and the processing and payment of debts, [Emilio III], a businessman with an established track record as a manager has a decided edge and therefore, is in a position to better handle the preservation of the estate.14 In marked contrast, the CA zeroed in on Emilio IIIs status as an illegitimate child of Emilio I and, thus, barred from representing his deceased father in the estate of the latters legitimate mother, the decedent. On the whole, the CA pronounced that Emilio III, who was merely nominated by Federico, and which nomination hinged upon the latters appointment as administrator of the decedents estate, cannot be appointed as the administrator of the decedents estate for the following reasons:15 1. The appointment of Emilio III was subject to a suspensive condition, i.e., Federicos appointment as administrator of the estate, he being the surviving spouse of Cristina, the decedent. The death of Federico before his appointment as administrator of Cristinas estate rendered his nomination of Emilio III inoperative; 2. As between the legitimate offspring (respondent) and illegitimate offspring (Emilio III) of decedents son, Emilio I, respondent is preferred, being the "next of kin" referred to by Section 6, Rule 78 of the Rules of Court, and entitled to share in the distribution of Cristinas estate as an heir; 3. Jurisprudence has consistently held that Article 99216 of the Civil Code bars the illegitimate child from inheriting ab intestato from the legitimate children and relatives of his father or mother. Thus, Emilio III, who is barred from inheriting from his grandmother, cannot be preferred over respondent in the administration of the estate of their grandmother, the decedent; and 4. Contrary to the RTCs finding, respondent is as much competent as Emilio III to administer and manage the subject estate for she possesses none of the disqualifications specified in Section 1,17 Rule 78 of the Rules of Court. The pivotal issue in this case turns on who, as between Emilio III and respondent, is better qualified to act as administrator of the decedents estate.

In ruling against the petition of herein respondent, the RTC ratiocinated, thus: Evidence objectively assessed and carefully evaluated, both testimonial and documentary, the court opines that it is to the best interest of the estate of the decedent and all claimants thereto, that the Intervenor, Emilio A.M. Suntay III, be appointed administrator of the estate in the aboveentitled special proceedings. Based on the evidence and demeanor of the parties in court, [respondents immediate] family and that of the decedent are apparently estranged. The root cause of which, is not for this court to ascertain nor is this the right time and the proper forum to dwell upon. What matters most at this time is the welfare of the estate of the decedent in the light of such unfortunate and bitter estrangement. The Court honestly believes that to appoint the petitioner would go against the wishes of the decedent who raised [Emilio III] from infancy in her home in Baguio City as her own child. Certainly, it would go against the wishes of the surviving spouse x x x who nominated [Emilio III] for appointment as administrator. As between [respondent] and the oppositor [Federico], the latter is accorded preference as the surviving spouse under Sec 6(a), Rule 78, Rules of Court. On the basis of such preference, he vigorously opposed the appointment of the petitioner and instead nominated [Emilio III], his grandchild and adopted child. Such nomination, absent any valid and justifiable reason, should not be imperiously set aside and insouciantly ignored, even after the oppositor [Federico] has passed away, in order to give effect to the order of preference mandated by law. Moreover, from the viewpoint of the estate, the nomination of [Emilio III] appear[s] intrinsically meritorious. For the benefit of the estate and its claimants, creditors, as well as heirs, the administrator should be one who is prepared, academically and by experience, for the demands and responsibilities of the position. While [respondent], a practicing physician, is not

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We cannot subscribe to the appellate courts ruling excluding Emilio III in the administration of the decedents undivided estate. Mistakenly, the CA glosses over several undisputed facts and circumstances: 1. The underlying philosophy of our law on intestate succession is to give preference to the wishes and presumed will of the decedent, absent a valid and effective will; 2. The basis for Article 992 of the Civil Code, referred to as the iron curtain bar rule,18 is quite the opposite scenario in the facts obtaining herein for the actual relationship between Federico and Cristina, on one hand, and Emilio III, on the other, was akin to the normal relationship of legitimate relatives; 3. Emilio III was reared from infancy by the decedent, Cristina, and her husband, Federico, who both acknowledged him as their grandchild; 4. Federico claimed half of the properties included in the estate of the decedent, Cristina, as forming part of their conjugal partnership of gains during the subsistence of their marriage; 5. Cristinas properties forming part of her estate are still commingled with that of her husband, Federico, because her share in the conjugal partnership, albeit terminated upon her death, remains undetermined and unliquidated; and 6. Emilio III is a legally adopted child of Federico, entitled to share in the distribution of the latters estate as a direct heir, one degree from Federico, not simply representing his deceased illegitimate father, Emilio I. From the foregoing, it is patently clear that the CA erred in excluding Emilio III from the administration of the decedents estate. As Federicos adopted son, Emilio IIIs interest in the estate of Cristina is as much apparent to this Court as the interest therein of respondent, considering that the CA even declared that "under the law, [Federico], being the surviving spouse, would have the right of succession over a portion of the exclusive property of the decedent, aside from his share in the conjugal partnership." Thus, we are puzzled why the CA resorted to a strained legal reasoning Emilio IIIs nomination was subject to a suspensive condition and rendered inoperative by reason of Federicos death wholly inapplicable to the case at bar.

Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an administrator of an estate: SEC. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. However, the order of preference is not absolute for it depends on the attendant facts and circumstances of each case.19 Jurisprudence has long held that the selection of an administrator lies in the sound discretion of the trial court.20 In the main, the attendant facts and circumstances of this case necessitate, at the least, a joint administration by both respondent and Emilio III of their grandmothers, Cristinas, estate. In the case of Uy v. Court of Appeals, 21 we upheld the appointment by the trial court of a co-administration between the decedents son and the decedents brother, who was likewise a creditor of the decedents estate. In the same vein, we declared in Delgado Vda. de De la Rosa v. Heirs of Marciana Rustia Vda. de Damian22 that: [i]n the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. The order of preference does not rule out the appointment of co-administrators, specially in cases where

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justice and equity demand that opposing parties or factions be represented in the management of the estates, a situation which obtains here. Similarly, the subject estate in this case calls to the succession other putative heirs, including another illegitimate grandchild of Cristina and Federico, Nenita Taedo, but who was likewise adopted by Federico, and the two (2) siblings of respondent Isabel, Margarita and Emilio II. In all, considering the conflicting claims of the putative heirs, and the unliquidated conjugal partnership of Cristina and Federico which forms part of their respective estates, we are impelled to move in only one direction, i.e., joint administration of the subject estate. One final note. Counsel for petitioner meticulously argues that Article 992 of the Civil Code, the successional bar between the legitimate and illegitimate relatives of a decedent, does not apply in this instance where facts indubitably demonstrate the contrary Emilio III, an illegitimate grandchild of the decedent, was actually treated by the decedent and her husband as their own son, reared from infancy, educated and trained in their businesses, and eventually legally adopted by decedents husband, the original oppositor to respondents petition for letters of administration. We are not unmindful of the critiques of civilists of a conflict and a lacuna in the law concerning the bone of contention that is Article 992 of the Civil Code, beginning with the eminent Justice J.B.L. Reyes: In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate child can not inherit ab intestato from the legitimate children and relatives of his father and mother. The Civil Code of the Philippines apparently adhered to this principle since it reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the illegitimate child to pass to his own descendants, whether legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a legitimate child from representing him in the intestate succession of the grandparent, the illegitimates of an illegitimate child can now do so. This difference being indefensible and unwarranted, in the future revision of the Civil Code we shall

have to make a choice and decide either that the illegitimate issue enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or contrariwise maintain said article and modify Articles 995 and 998. The first solution would be more in accord with an enlightened attitude vis--vis illegitimate children.23 Manresa explains the basis for the rules on intestate succession: The law [of intestacy] is founded on the presumed will of the deceased Love, it is said, first descends, then ascends, and, finally, spreads sideways. Thus, the law first calls the descendants, then the ascendants, and finally the collaterals, always preferring those closer in degree to those of remoter degrees, on the assumption that the deceased would have done so had he manifested his last will Lastly, in default of anyone called to succession or bound to the decedent by ties of blood or affection, it is in accordance with his presumed will that his property be given to charitable or educational institutions, and thus contribute to the welfare of humanity.24 Indeed, the factual antecedents of this case accurately reflect the basis of intestate succession, i.e., love first descends, for the decedent, Cristina, did not distinguish between her legitimate and illegitimate grandchildren. Neither did her husband, Federico, who, in fact, legally raised the status of Emilio III from an illegitimate grandchild to that of a legitimate child. The peculiar circumstances of this case, painstakingly pointed out by counsel for petitioner, overthrow the legal presumption in Article 992 of the Civil Code that there exist animosity and antagonism between legitimate and illegitimate descendants of a deceased. Nonetheless, it must be pointed out that judicial restraint impels us to refrain from making a final declaration of heirship and distributing the presumptive shares of the parties in the estates of Cristina and Federico, considering that the question on who will administer the properties of the long deceased couple has yet to be settled. Our holding in Capistrano v. Nadurata25 on the same issue remains good law: [T]he declaration of heirs made by the lower court is premature, although the evidence sufficiently shows who are entitled to succeed the deceased. The estate had hardly

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been judicially opened, and the proceeding has not as yet reached the stage of distribution of the estate which must come after the inheritance is liquidated. Section 1, Rule 90 of the Rules of Court does not depart from the foregoing admonition: Sec. 1. When order for distribution of residue is made. x x x. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 74949 is REVERSED and SET ASIDE. Letters of Administration over the estate of decedent Cristina Aguinaldo-Suntay shall issue to both petitioner Emilio A.M. Suntay III and respondent Isabel Cojuangco-Suntay upon payment by each of a bond to be set by the Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95. The Regional Trial Court, Branch 78, Malolos, Bulacan is likewise directed to make a determination and to declare the heirs of decedent Cristina Aguinaldo-Suntay according to the actual factual milieu as proven by the parties, and all other persons with legal interest in the subject estate. It is further directed to settle the estate of decedent Cristina Aguinaldo-Suntay with dispatch. No costs. SO ORDERED.
Footnotes * Additional member in lieu of Associate Justice Jose C. Mendoza per Special Order No. 842 dated June 3, 2010. 1 Formerly Cardinal Rodrigo Borgia, before ascending to the religious title of Pope and assuming the name Alexander VI. 2 The Papal Bull which drew a longitudinal line (one hundred leagues west of the Azores and Cape Verde Islands) and bestowed all non-Christian lands west thereof to Spain, and east of the line to Portugal. 3 In The Family, a book with a factual core on the Borgia family of 15th Century Rome, Mario Puzo recounts that the ostensibly fair and just papal ruling actually favored Spain and placed Portugal at a disadvantage because papal intervention and arbitration of the matter was made at the behest of King Ferdinand of Spain. More importantly, Pope Alexander VI was originally a Catalan who, at the start of his career as a cleric in Italy, conveniently changed his name from the Spanish "Borja" to the Italian "Borgia" to gain acceptance and credibility as an authentic Roman clergy. 4 Penned by Associate Justice Sesinando E. Villon, with Associate Justices Martin S. Villarama, Jr. (now a member of this Court) and Noel G. Tijam, concurring; rollo, pp. 20-32.

5 6 7

Penned by Judge Gregorio S. Sampaga; rollo, pp. 35-60. Rollo, p. 43. Id. at 137-138. 8 Id. at 35. 9 Id. at 21-22. 10 Id. at 58. 11 Id. at 60. 12 Id. at 31-32. 13 Memorandum of petitioner; id. at 195. 14 Rollo, pp. 59-60. 15 Id. at 25-31. 16 Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. 17 Sec.1. Who are incompetent to serve as executors or administrators. No person is competent to serve as executor or administrator who: (a) Is a minor; (b) Is not a resident of the Philippines; and (c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude. 18 Called as such because the law does not recognize the natural tie of blood and is based on the presumed intervening antagonism and incompatibility between the legitimate and illegitimate family of a deceased. See Diaz v. Intermediate Appellate Court, G.R. No. L-66574, June 17, 1987, 150 SCRA 645. 19 See Uy v. Court of Appeals, G.R. No. 167979, March 16, 2006, 484 SCRA 699; Gabriel v. Court of Appeals, G.R. No. 101512, August 7, 1992, 212 SCRA 413; Capistrano v. Nadurata, 46 Phil. 726 (1922). 20 See Uy v. Court of Appeals, supra; Gabriel v. Court of Appeals, supra; Capistrano v. Nadurata, supra. 21 Supra note 19. 22 G.R. No. 155733, January 27, 2006, 480 SCRA 334, 360. (Citations omitted.) 23 Reflections on the Reform of Hereditary Succession, JOURNAL of the Integrated Bar of the Philippines, First Quarter (1976), Vol. 4, No. 1, pp. 40-41; cited in Diaz v. Intermediate Appellate Court, G.R. No. 66574, February 21, 1990, 182 SCRA 427, 434; and Diaz v. Intermediate Appellate Court, supra note 18, at 651. 24 Cited in BALANE, Jottings and Jurisprudence (1998), p. 368. 25 Supra note at 19, at 728.

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