1. G.R. No. 127165. May 2, 2006.* SALONGA HERNANDEZ & ALLADO, petitioner, vs.

OLIVIA SENGCO PASCUAL and THE HONORABLE COURT OF APPEALS, respondents. Lawyers; Attorneys Fees; Estate Proceedings; As a general rule, it is the executor or administrator who is primarily liable for attorneys fees due to the lawyer who rendered legal services for the executor or administrator in relation to the settlement of the estate, and the executor or administrator may seek reimbursement from the estate for the sums paid in attorneys fees if it can be shown that the services of the lawyer redounded to the benefit of the estate.We reiterate that as a general rule, it is the executor or administrator who is primarily liable for attorneys fees due to the lawyer who rendered legal services for the executor or administrator in relation to the settlement of the estate. The executor or administrator may seek reimbursement from the estate for the sums paid in attorneys fees if it can be shown that the services of the lawyer redounded to the benefit of the estate. However, if the executor or administrator refuses to pay the attorneys fees, the lawyer has two modes of recourse. First, the lawyer may file an action against the executor or administrator, but in his/her personal capacity and not as administrator or executor. Second, the lawyer may file a petition in the testate or intestate proceedings, asking the court to direct the payment of attorneys fees as an expense of administration. If the second mode is resorted to, it is essential that notice to all the heirs and interested parties be made so as to enable these persons to inquire into the value of the services of the lawyer and on the necessity of his employment. Same; Same; Same; A claim for attorneys fees partakes the nature of an administration expense, and the claim for reimbursement must be superior to the rights of the beneficiaries. The character of such claim for attorneys fees bears reiteration. As stated in Escueta, 5 Phil. 405 (1905), it partakes the nature of an administration expense. Administration expenses include attorneys fees incurred in connection with the administration of the estate. It is an expense attending the accomplishment of the purpose of administration growing out of the contract or obligation entered into by the personal representative of the estate, and thus the claim for reimbursement must be superior to the rights of the beneficiaries. Same; Same; Same; Due Process; The requisite notice to the heirs, devisees, and legatees about the cla im for attorneys fees against the estate is anchored on the constitutional principle that no person shall be deprived of property without due process of law.The requisite notice to the heirs, devisees, and legatees is anchored on the constitutional principle that no person shall be deprived of property without due process of law. The fact that these persons were designated in the will as recipients of the testamentary dispositions from the decedent establishes their rights to the succession, which are transmitted to them from the moment of the death of the decedent. The payment of such attorneys fees necessarily diminishes the estate of the decedent, and may effectively diminish the value of the testamentary dispositions made by the decedent. These heirs, devisees, and legatees acquire proprietary rights by reason of the will upon the moment of the death of the decedent, incipient or inchoate as such rights may be. Hence, notice to these interested persons of the claims for attorneys fees is integral, so as to allow them to pose any objections or oppositions to such claim which, after all, could lead to the reduction of their benefits from the estate. Same; Same; Same; Same; The failure of the lawyer to give notice to the heirs, devisees, and legatees of his claim for attorneys fees renders the claim inefficacious.We reiterate that the direct claim against the estate for attorneys fees must be made with due notice to the heirs, devisees, and legatees. The failure of petitioner to give such notice renders its present claim inefficacious for now. Indeed, there is sufficient cause to dismiss outright petitioners Motion for Writ of Immediate Execution filed with the Probate Court, for its failure to notify therein the other persons interested in the estate of Doa Adela. Nonetheless, to authorize said outright denial at this stage could unduly delay the settlement of the estate of Doa Adela, considering the likelihood that petitioner would again pursue such claim for attorneys fees as the right to which is affirmed by law and jurisprudence.

Same; Same; Same; Same; In order not to unduly protract the settlement of the subject estate, the Court deems it proper instead to mandate the Probate Court to treat the Motion for Writ of Immediate Execution as a petition seeking a court order to direct the payment of attorneys fees as expenses of administration, but subject to the condition that petitioner give due notice to the devisees and legatees so designated in the will of the claim prior to the requisite hearing thereon. In order not to unduly protract further the settlement of the estate of Doa Adela, the Court deems it proper instead to mandate the Probate Court to treat the Motion for Writ of Immediate Execution as a petition seeking a court order to direct the payment of attorneys fees as expenses of administration, but subject to the condition that petitioner give due notice to the other designated devisees and legatees so designated in the will of the claim prior to the requisite hearing thereon. Petitioner may as well seize such opportunity to formally amend or reconfigure its motion to a petition to direct payment of attorneys fees. Once this step is accomplished, there should be no impediment to petitioners claim for recovery of attorneys fees as reimbursement for necessary administration expenses, within the terms established by law, jurisprudence, and this decision. [Salonga Hernandez & Allado vs. Pascual, 488 SCRA 449(2006)] G.R. No. 127165 May 2, 2006

SALONGA HERNANDEZ & ALLADO, Petitioner, vs. OLIVIA SENGCO PASCUAL and THE HONORABLE COURT OF APPEALS, Respondents. DECISION TINGA, J.: Petitioner, a professional law partnership, brings forth this Petition for Review assailing the Decision of the Court of Appeals dated 22 December 1995. The appellate court had affirmed two orders promulgated by the Malabon Regional Trial Court (RTC), Branch 72 (Probate Court), in Sp. Proc. No. 136-MN, entitled "In the Matter of Testate Estate of Doa Adela Pascual, Dr. Olivia S. Pascual, Executrix." The case actually centers on two estate proceedings, that of Doa Adela Pascual (Doa Adela) and the other, her husband Don Andres Pascual's (Don Andres), who predeceased her. Don Andres died intestate, while Doa Adela left behind a last will and testament. The dispute over the intestate estate of Don Andres has spawned at 2 least two cases already settled by this Court. On 1 December 1973, an intestate proceeding for the settlement of the estate of Don Andres was commenced by his widow Doa Adela before the then Court of First Instance, now Regional Trial Court of Pasig, Branch 23 (Intestate Court), docketed as Sp. Proc. No. 7554. Apart from his wife, who bore him no children, Don Andres was 3 survived by several nephews and nieces from his full-blood and half-blood brothers. This proceeding proved to be the source of many controversies, owing to the attempts of siblings Olivia and Hermes Pascual, acknowledged natural children of Don Andres's brother, Eligio, to be recognized as heirs of Don Andres. Olivia and Hermes Pascual procured the initial support of Doa Adela to their claims. However, on 16 October 1985, the other heirs of Don Andres entered into a Compromise Agreement over the objections of Olivia and Hermes Pascual, whereby three-fourths (3/4) of the estate would go to Doa Adela and one-fourth (1/4) to the other heirs of Don Andres, without prejudice to the final determination by the court or another compromise agreement as regards the claims 4 of Olivia and Hermes Pascual. Subsequently, the Intestate Court denied the claims of Olivia and Hermes 5 Pascual. Said denial was eventually affirmed by this Court in 1992 in Pascual v. Pascual-Bautista, applying Article 992 of the Civil Code. In the meantime, Doa Adela died on 18 August 1987, leaving behind a last will and testament executed in 1978, designating Olivia Pascual as the executrix, as well as the principal beneficiary of her estate. The will also bequeathed several legacies and devises to several individuals and institutions.
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Olivia Pascual then engaged the services of petitioner in connection with the settlement of the estate of Doa Adela. Their agreement as to the professional fees due to petitioner is contained in a letter dated 25 August 1987, signed by Atty. Esteban Salonga in behalf of petitioner and Olivia Pascual. It is stipulated therein, among others, that the final professional fee "shall be 3% of the total gross estate as well as the fruits thereof based on the court approved inventory of the estate. Fruits shall be reckoned from the time of [Olivia Pascual's] appointment as executrix of the estate. The 3% final fee shall be payable upon approval by the court of the agreement for the 6 distribution of the properties to the court designated heirs of the estate." On 26 August 1987, private respondent, represented by petitioner, commenced a petition for the probate of the last will and testament of Doa Adela before the Probate Court, docketed as Sp. Proc. No. 136-MN and raffled to Branch 72 presided by Judge Benjamin M. Aquino, Jr. The petition was opposed by a certain Miguel Cornejo, Jr. 7 and his siblings, who in turn presented a purported will executed in 1985 by Doa Adela in their favor. After due trial, on 1 July 1993, the Probate Court rendered a Decision allowing probate of the 1978 Last Will and Testament of Doa Adela and disallowing the purported 1985 Will. Letters testamentary were issued to Olivia 9 Pascual. Cornejo attempted to appeal this decision of the Probate Court, but his notice of appeal was denied due course by the Probate Court, said notice "not having been accompanied by any record on appeal as required 10 under the Interim Rules and by Rule 109 of the Rules of Court." On 27 July 1993, petitioner filed a Notice of Attorney's Lien equivalent to three percent (3%) of the total gross estate of the late Doa Adela S. Pascual as well as the fruits thereof based on the court approved inventory of the estate, pursuant to the retainer agreement signed by and between petitioner and Olivia S. Pascual, on 25 August 1987. In an Order dated 4 November 1993, the Probate Court ruled that petitioner's "notice of attorney's lien, being fully supported by a retainer's contract not repudiated nor questioned by his client Olivia S. Pascual, is 11 hereby noted as a lien that must be satisfied chargeable to the share of Olivia S. Pascual." This was followed by another Order, dated 11 November 1993, wherein it was directed "that notice be x x x given, requiring all persons having claims for money against the decedent, Doa Adela S. Vda. de Pascual, arising from contracts, express or implied, whether the same be due, not due, or contingent, for funeral expenses and expenses of the last sickness of the said decedent, and judgment for money against her, to file said claims with the Clerk of Court at Malabon, 12 Metro Manila, within six (6) months from November 4, 1993." Accordingly, on 22 November 1993, petitioner filed a Motion to Annotate Attorney's Lien on Properties of the 13 Estate of Doa Adela Vda. de Pascual. It was at this stage, on 19 January 1994, that the Intestate Court rendered a Decision in Sp. Proc. No. 7554, finally giving judicial approval to the aforementioned 1985 Compromise Agreement, and partitioning the estate of Don Andres by adjudicating one-fourth (1/4) thereof to the heirs of Don Andres and three-fourths (3/4) thereof to the estate of Doa Adela. The Intestate Court also awarded attorney's fees to Atty. Jesus I. Santos, equivalent to 14 15% of the three-fourths (3/4) share of the estate of Doa Adela. Olivia Pascual filed a petition for annulment of the award of attorney's fees with the Court of Appeals, but the same was denied, first by the appellate court, then 15 finally by this Court in its 1998 decision in Pascual v. Court of Appeals. On 26 April 1994, petitioner filed a Motion for Writ of Execution for the partial execution of petitioner's attorney's lien estimated at P1,198,097.02. The figure, characterized as "tentative," was arrived at based on a Motion to Submit Project Partition dated 26 October 1993 filed by Olivia Pascual, which alleged the gross appraised value of Doa Adela's estate at P39,936,567.19. This sum was in turn derived from the alleged value of the total estate of Don Andres, three-fourths (3/4) of which had been adjudicated to Doa Adela. At the same time, petitioner noted that the stated values must be considered as only provisional, considering that they were based on a July 1988 appraisal report; thus, the claim for execution was, according to petitioner, without prejudice to an updated 16 appraisal of the properties comprising the gross estate of Doa Adela. On 29 April 1994, Olivia Pascual, through Atty. Antonio Ravelo, filed her comment and/or opposition to the motion for the issuance of a writ of execution on attorney's fees. She argued that a lawyer of an administrator or executor should charge the individual client, not the estate, for professional fees. Olivia Pascual also claimed, citing
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jurisprudence , that the counsel claiming attorney's fees should give sufficient notice to all interested parties to the estate, and that such was not accomplished by petitioner considering that no notices were given to the several 18 legatees designated in Doa Adela's will. It was further argued that the motion for execution was premature, considering that the proceedings before the Intestate Court had not yet been terminated; that the computation of the figure of P1,198,097.02 was erroneous; and that the enforcement of the writ of execution on the undivided estate of Don Andres would prejudice his other heirs entitled to one-fourth (1/4) thereof. On 2 June 1994, the Probate Court issued the first assailed order denying the motion for writ of execution in view of the fact that "the bulk of the estate of the late Doa Adela S. Vda. De Pascual is still tied-up with the estate of the late Don Andres Pascual, the proceedings over which and the final disposition thereof with respect to the partition and segregation of what is to form part of the estate of the late Doa Adela S. Vda. De Pascual is 19 pending with another court sitting in Pasig, Metro Manila, and for having been prematurely filed." On 14 November 1994, Olivia Pascual, filed with the Probate Court a Motion to Declare General Default and Distribution of Testamentary Dispositions with Cancellation of Administrator's Bond. It was noted therein that no creditor had filed a claim against the estate of Doa Adela despite due notice published pursuant to Section 1, Rule 86 of the Rules of Court. The Probate Court was also informed of the fact that the proceedings before the Intestate Court had already been terminated by reason of the 14 January 1994 Decision rendered by the latter court. It was also stated "that the corresponding estate taxes had been paid as evidenced by the Estate Tax Return filed with the Bureau of Internal Revenue, and of the Certificate of Authority issued by the said 20 agency." Interestingly, it was also manifested that two of the properties that formed part of the estates of the spouses, "the Ongpin Property" and "the Valenzuela Property," had in fact already been partitioned between the estate of Doa Adela and the heirs of Don Andres at the ratio of three-fourths (3/4) and one-fourth (1/4), respectively. In response, petitioner filed a Comment/Manifestation praying that an order be issued: (1) ordering the annotation of the attorney's lien on the properties comprising the estate of Doa Adela Pascual; (2) a writ of partial execution be issued for the satisfaction of the attorney's lien of the undersigned counsel [herein petitioner] in relation to the Ongpin and Valenzuela properties for the amount ofP635,368.14,without prejudice to the issuance of a writ of execution after the re-appraisal of the present market value of the estate and the determination of the amount due to [petitioner] as attorney's fees; (3) ordering the appointment of a reputable appraisal company to re-appraise the present market value of the estate of Doa Adela Pascual including the fruits thereof for the purpose of determining the value of the attorney's fees of [petitioner]; and (4) after the re-appraisal of the estate of Doa Adela Pascual a writ of execution be issued for the full 21 satisfaction and settlement of the attorney's lien of [petitioner]. On 17 March 1995, the Probate Court issued an order which denied petitioner's motion for a re-appraisal of the property and the issuance of a partial writ of execution "for being prematurely filed as there is no exact estate yet to be inventoried and re-appraised, assuming re-appraisal would be proper, because the bulk of the estate subject of this case, as far as this court is concerned, has not yet been turned over to the executrix or to the court 22 itself." Through a petition for certiorari and mandamus, petitioner assailed the two orders of the Probate Court denying its motion for the immediate execution, partial or otherwise, of its claim for attorney's fees: the 2 June 1994 Order and the 17 March 1995 Order. Nonetheless, the twin orders of the RTC were affirmed by the Court of Appeals, effectively precluding petitioner's attempt to execute on its attorney's lien. The appellate court noted that the attorney's lien issued by the Probate Court was chargeable only to the share of Olivia Pascual, and not to the estate of Doa Adela, since it was Olivia Pascual who entered into the agreement with petitioner for the payment

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of attorney's fees in connection with the settlement of the estate of Doa Adela. Citing Lacson v. Reyes, the Court of Appeals asserted that as a rule an administrator or executor may be allowed fees for the necessary expenses he has incurred but he may not recover attorney's fees from the estate. The Court of Appeals likewise noted that in the retainer agreement between petitioner and Olivia Pascual, it is stipulated that "the 3% final fee shall be payable upon approval by the court of the agreement for the distribution 24 of the properties to the court designated heirs of the estate." On this score, the Court of Appeals ruled that as the petition before it did not show "that an agreement on the distribution of properties of the estate of Doa Adela 25 S. Pascual has been submitted and approved by the probate court," the filing of the motion for execution and that of the motion for re-appraisal of the market value of the estate were both premature. Petitioner sought to reconsider the Decision of the Court of Appeals, but in vain.
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Hence this petition.

Petitioner argues that as held in Occea v. Marquez, the counsel seeking to recover attorney's fees for legal services to the executor or administrator is authorized to file a petition in the testate or intestate proceedings asking the court, after notice to all the heirs and interested parties, to direct the payment of his fees as expenses 28 of administration. Lacson, it is alleged, was inappropriately cited, since that case involved an executor who concurrently was a lawyer who subsequently claimed attorney's fees as part of the expenses of administration. Petitioner also claims that the decision of the probate court admitting Doa Adela's will to probate sufficiently satisfies the condition in the Retainer Agreement that the final fee be payable "upon approval by the court of the agreement for the distribution of the properties to the court designated heirs of the estate," the court-approved will comprising the agreement referred to in the contract. Petitioner also takes exception to the Probate Court's finding that "the bulk of the estate subject of this case, as far as this [c]ourt is concerned, has not been turned over to the executrix or to the [c]ourt itself," on which the appellate court predicated its ruling that the motion for a writ of execution was premature. Petitioner submits that the Probate Court ineluctably has jurisdiction over the estate of Doa Adela, and has necessarily assumed control over the properties belonging to the said estate. Thus, petitioner continues, there is no longer need to await the turnover of the properties involved in the intestate estate of Don Andres which constitute part of the testate estate of Doa Adela since the Probate Court and the Intestate Court have concurrent jurisdiction over these properties as they have not yet been physically divided. Petitioner refers to the averment made by Olivia Pascual before the Probate Court that the proceedings before the Intestate Court had already been terminated, and that the proceeds of the sale of the Ongpin Property and the Valenzuela Property had in fact been already divided based on the three-fourths (3/4) to one-fourth (1/4) ratio between the estate of Doa Adela and the heirs of Don Andres. Petitioner further points out that the Probate Court had authorized and approved the sale of the Ongpin Property, yet refused to allow the partial execution of its claim for attorney's fees. Finally, petitioner asserts that the Probate Court erred in refusing to grant the prayer seeking the re-appraisal of the property of Doa Adela's estate. Such re-appraisal, so it claims, is necessary in order to determine the three percent (3%) share in the total gross estate committed to petitioner by reason of the Retainer Agreement. It appears that the thrust of the assailed Decision of the Court of Appeals is along these lines: that petitioner may directly claim attorney's fees only against Olivia Pascual and not against the estate of Doa Adela; and that petitioner's claim is also premature since contrary to the requisite stipulated in the Retainer Agreement, there is no court-approved agreement for the distribution of the properties of the estate of Doa Adela as yet. As an initial premise, we consider whether a lawyer who renders legal services to the executor or administrator of an estate can claim attorney's fees against the estate instead of the executor or administrator. Petitioner correctly 29 cites Occea v. Marquez as providing the governing rule on that matter as previously settled in the 1905 case 30 of Escueta v. Sy-Juilliong, to wit:

The rule is that when a lawyer has rendered legal services to the executor or administrator to assist him in the execution of his trust, his attorney's fees may be allowed as expenses of administration. The estate is, however, not directly liable for his fees, the liability for payment resting primarily on the executor or administrator. If the administrator had paid the fees, he would be entitled to reimbursement from the estate. The procedure to be followed by counsel in order to collect his fees is to request the administrator to make payment, and should the latter fail to pay, either to (a) file an action against him in his personal capacity, and not as administrator, or (b) file a petition in the testate or intestate proceedings asking the court, after notice to all the heirs and interested parties, to direct the payment of his fees as expenses of administration. Whichever course is adopted, the heirs and other persons interested in the estate will have the right to inquire into the value of the services of the lawyer 31 and on the necessity of his employment. We reiterate that as a general rule, it is the executor or administrator who is primarily liable for attorney's fees due to the lawyer who rendered legal services for the executor or administrator in relation to the settlement of the estate. The executor or administrator may seek reimbursement from the estate for the sums paid in attorney's 32 fees if it can be shown that the services of the lawyer redounded to the benefit of the estate. However, if the executor or administrator refuses to pay the attorney's fees, the lawyer has two modes of recourse. First, the lawyer may file an action against the executor or administrator, but in his/her personal capacity and not as administrator or executor. Second, the lawyer may file a petition in the testate or intestate proceedings, asking the court to direct the payment of attorney's fees as an expense of administration. If the second mode is resorted to, it is essential that notice to all the heirs and interested parties be made so as to enable these persons to inquire into the value of the services of the lawyer and on the necessity of his employment. Lacson v. Reyes, cited by the appellate court, involved an executor who also happened to be the lawyer for the heirs who had filed the petition for probate. For that reason, that case is not squarely in point to the case at bar. It was pronounced therein that the administrator or executor of the estate cannot charge professional fees for legal services against the same estate, as explicitly provided under Section 7, Rule 85 of the Rules of Court of 34 1985. No such rule exists barring direct recovery of professional legal fees from the estate by the lawyer who is not the executor or administrator of the said estate. The limitations on such direct recovery are nonetheless established by jurisprudence, as evinced by the rulings in Escueta and Occea. The character of such claim for attorney's fees bears reiteration. As stated in Escueta, it partakes the nature of an administration expense. Administration expenses include attorney's fees incurred in connection with the 35 administration of the estate. It is an expense attending the accomplishment of the purpose of administration growing out of the contract or obligation entered into by the personal representative of the estate, and thus the 36 claim for reimbursement must be superior to the rights of the beneficiaries. Notwithstanding, there may be instances wherein the estate should not be charged with attorney's fees. If the costs of counsel's fees arise out of litigation among the beneficiaries thereof themselves or in the protection of the interests of particular persons, the estate generally cannot be held liable for such costs, although when the administrator employs competent counsel on questions which affect his/her duties as the administrator and on which he/she is in reasonable doubt, reasonable expenses for such services may be charged against the estate 37 subject to the approval of the court. It has also been held that an administrator who brings on litigation for the deliberate purpose of defrauding the legitimate heirs and for his own benefit is not entitled to reimbursement for 38 counsel's fees incurred in such litigation. 1avvphil.net Clearly then, while the direct recovery of attorney's fees from the estate may be authorized if the executor refuses to pay such fees, and claimed through the filing of the proper petition with the probate court, such claim remains controvertible. This is precisely why Escueta and its progenies require that the petition be made with notice to all the heirs and interested parties. It is these perspectives that we apply to the case at bar. Notably, petitioner had filed both a Notice of Attorney's Lien and a Motion for Writ of Execution. These two pleadings have distinct character and must be treated as such.
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After Doa Adela's will had been admitted to probate, petitioner had initially filed a Notice of Attorney's Lien wherein it identified itself as "the attorney for the executrix named in the said will, Dra. Olivia S. Pascual", and sought to file its "claim and/or lien for attorney's fees equivalent to Three Percent (3%) of the total gross estate," pursuant to the 1987 Retainer Agreement. Copies of this Notice of Attorney's Lien were furnished Attys. Fortunato Viray, Jr. and Crisanto Cornejo, who appear on record to have served as counsels for the various oppositors to the probate of the 1978 will of Doa Adela. This Notice of Attorney's Lien was noted by the Probate Court in its Order of 4 November 1993, "as a lien that must be satisfied chargeable to the share of Olivia S. Pascual." It may be so that petitioner, in filing this Notice of Attorney's Lien, initially intended to hold Olivia Pascual, and not Doa Adela's estate, liable for the attorney's fees. It did identify itself as the lawyer of Olivia Pascual, and the Probate Court did note that the lien be satisfied chargeable to the share of the executor. Yet it must also be noted that such lien, as it is, is only contingent on the final settlement of the estate of Doa Adela, at such time, since the Retainer Agreement on which the lien is hinged provides that the final fee "be payable upon approval by the 39 court of the agreement for the distribution of the properties to the court designated heirs of the estate." This is also made clear by the order noting the lien, which qualified that said lien was chargeable only to the share of Olivia Pascual, hence implying that at the very least, it may be claimed only after her share to Doa Adela's estate is already determinate. In rendering its assailed Decision, the Court of Appeals relied on this qualification made by the Probate Court that the lien for attorney's fees was chargeable only to the share of Olivia Pascual. Yet the Notice of Attorney's Lien only seeks to serve notice of the pendency of the claim for attorney's fees, and not the payment of such fees itself. On its own, the Notice of Attorney's Lien cannot serve as the basis for the Probate Court to authorize the payment to petitioner of attorney's fees. On the other hand, Escueta and its kindred cases do explicitly recognize the recourse for the lawyer to directly make the claim for attorney's fees against the estate, not the executor or administrator. The filing of the Notice of Attorney's Lien and the qualificatory character of the rulings thereon, do not preclude the resort to the mode of recovery against the estate as authorized by jurisprudence. Clearly then, we disagree with the opinion of the Court of Appeals that attorney's fees can be claimed only against the share of Olivia Pascual. The instant case is rooted in an incomplete attempt to resort to the second mode of recovery of attorney's fees as authorized in Escueta, originating as it did from the denial of petitioner's Motion for Writ of Execution, and not the Notice of Attorney's Lien. The Motion did expressly seek the payment of attorney's fees to petitioner. Escueta andOccea, among other cases, did clearly lay down the manner under which such fees may be paid out even prior to the final settlement of the estate as an administration expense directly chargeable to the estate itself. The critical question in the present petition is thus whether this Motion for Writ of Execution satisfies the requisites set in Escueta for a claim for attorney's fees directly chargeable against the estate. It does not. The fact that the prayer for attorney's fees was cast in a motion and not a petition should not impede such claim, considering that the motion was nonetheless filed with the Probate Court. However, the record bears that the requisite notice to all heirs and interested parties has not been satisfied. Doa Adela's will designated 19 other individuals apart from Olivia Pascual, and four (4) different institutions as recipients of devises or legacies consisting of real properties, jewelries, and cash amounts. Yet only Olivia Pascual was served with a copy of the Motion for Writ of Execution, the motion which effectively sought the immediate payment of petitioner's attorney's fees. As early as 29 April 1994, Olivia Pascual, in opposing the Motion for Writ of Execution, already pointed out that petitioner had failed to give sufficient notice to all interested parties to the estate, particularly the several devisees and legatees so named in Doa Adela's will. Such notice is material to the other heirs to Doa Adela's estate. The payment of attorney's fees, especially in the amount of 3% of the total gross estate as sought for by petitioner, substantially diminishes the estate of Doa Adela and may consequently cause the diminution of their devises and legacies. Since these persons were so named in the very will itself and the action for probate which was filed by petitioner itself, there is no reason why petitioner could not have given due notice to these persons on its claim for attorney's fees.

The requisite notice to the heirs, devisees, and legatees is anchored on the constitutional principle that no person 40 shall be deprived of property without due process of law. The fact that these persons were designated in the will as recipients of the testamentary dispositions from the decedent establishes their rights to the succession, which 41 are transmitted to them from the moment of the death of the decedent. The payment of such attorney's fees necessarily diminishes the estate of the decedent, and may effectively diminish the value of the testamentary dispositions made by the decedent. These heirs, devisees, and legatees acquire proprietary rights by reason of the will upon the moment of the death of the decedent, incipient or inchoate as such rights may be. Hence, notice to these interested persons of the claims for attorney's fees is integral, so as to allow them to pose any objections or oppositions to such claim which, after all, could lead to the reduction of their benefits from the estate. The failure to notify the other heirs, devisees or legatees, to the estate of Doa Adela likewise deprives these interested persons of the right to be heard in a hearing geared towards determining whether petitioner was entitled to the immediate payment of attorney's fees. Notably, petitioner, in filing its Motion for Writ of Execution, had initially set the hearing on the motion on 29 April 1994, but one day prior to the scheduled hearing, gave notice instead that the motion was being submitted for the consideration of the Probate Court without further 42 argument. Evidently, petitioner did not intend a full-blown hearing to ensue on whether it was entitled to the payment of attorney's fees. Yet the claim for attorney's fees is hardly incontrovertible. That the Retainer Agreement set the attorney's fees at three percent (3%) of the gross estate does not imply that the basis for attorney's fees is beyond controversy. Attorney's fees in this case are in the nature of administration expenses, or necessary expenses in the first place. Any party interested in the estate may very well, in theory, posit a myriad of objections to the attorney's fees sought, such as for example, that these fees were not necessary expenses in the care, management, and settlement of the estate. Whether or not such basis for valid objections exists in this case is not evident, but the fact remains that all the parties interested in the estate, namely the other devisees and legatees, were deprived of the opportunity to raise such objections as they were not served notice of the Motion for Writ of Execution. The instant claim for attorney's fees is thus precluded by the absence of the requisite notices by petitioner to all the interested persons such as the designated heirs, devisees, legatees, as required by the jurisprudential rule laid down in Escueta. However, the Court of Appeals held that it was the prematurity of the claim for attorney's fees that served as the fatal impediment. On this point, the Court does not agree. Again, the remaining peripheral questions warrant clarification. Escueta itself provides for two alternative approaches through which counsel may proceed with his claim for attorney's fees. The first involves a separate suit against the executor or administrator in the latter's personal capacity. The second approach is a direct claim against the estate itself, with due notice to all interested persons, filed with the probate court. In the same vein, the existence of the Retainer Agreement between petitioner and Olivia Pascual allows petitioner two possible causes of action on which to claim attorney's fees in connection with the administration of the estate of Doa Adela. The first possible cause of action pivots on the Retainer Agreement, which establishes an obligation on the part of Olivia Pascual to pay the final fee of 3% of the gross total estate of Doa Adela, payable upon approval by the Probate Court of the agreement for the distribution of the properties to the court- designated heirs of the estate. Necessarily, since the recovery of attorney's fees is premised on the Retainer Agreement any award thereupon has to await the final ascertainment of value of the gross total estate of Doa Adela, as well as the approval by the Probate Court of the agreement for the distribution of the properties. The Retainer Agreement 43 makes it clear that the final payment of attorney's fees is contingent on these two conditions, and the claim for attorney's fees based on the Retainer Agreement cannot ripen until these conditions are met. Moreover, it cannot be escaped that the Retainer Agreement was entered into between petitioner and Olivia Pascual prior to the filing of the probate petition, and that at such time, she had no recognized right to represent the estate of Doa Adela yet. This

circumstance further bolsters our opinion that if petitioner insists on the judicial enforcement of the Retainer Agreement, its proper remedy, authorized by law and jurisprudence, would be a personal action against Olivia Pascual, and not against the estate of Doa Adela. If this were the recourse pursued by petitioner, and Olivia Pascual is ultimately held liable under the Retainer Agreement for attorney's fees, she may nonetheless seek reimbursement from the estate of Doa Adela if she were able to establish that the attorney's fees paid to petitioner were necessary administration expenses. The second or alternative recourse is the direct claim for attorney's fees against the estate, as authorized underEscueta. The character of this claim is not contractual in nature, but rather, as a reimbursement for a necessary expense of administration, and it will be allowed if it satisfies the criteria for necessary expenses of administration. Its entitlement can be established by the actual services rendered by the lawyer necessary to the accomplishment of the purposes of administration, and not necessarily by the contract of engagement of the attorney's services. By filing their claim directly against the estate of Doa Adela, petitioner has clearly resorted to this second cause of action. There are consequent advantages and disadvantages to petitioner. Since the claim arises irrespective of the contingencies as stipulated in the Retainer Agreement, the attorney's fees may be collected against the estate even before the final determination of its gross total value or the final approval of the project of partition. As earlier stated, such claim for reimbursement is superior to the right of the beneficiaries to the estate, and as such, there is need to finally determine the respective shares of the beneficiaries before attorney's fees in the nature of administration expenses may be paid out. The one distinct disadvantage, however, is that the Retainer Agreement cannot be deemed binding on the estate or the Probate Court since the estate is not a party to such contract. This would not preclude the Probate Court from enforcing the provisions of the Retainer Agreement if, in its sound discretion, the terms of payment therein are commensurate to the value of the actual services necessary to the administration of the estate actually rendered by petitioner. Yet if the Probate Court does choose to adopt the Retainer Agreement as binding on the estate of Doa Adela, petitioner may again be precluded from immediate recovery of attorney's fees in view of the necessity or precondition of ascertaining the gross total value of the estate, as well as the judicial approval of the final agreement of partition. In any event, whether the claim for attorney's fees was pursued through a separate suit against Olivia Pascual (in her personal capacity) for the enforcement of the Retainer Agreement, or against the estate of Doa Adela as reimbursement for necessary administration expenses, it remains essential that a hearing be conducted on the claim. In either case too, the hearing will focus on the value of the services of the petitioner and the necessity of engaging petitioner as counsel. We reiterate that the direct claim against the estate for attorney's fees must be made with due notice to the heirs, devisees, and legatees. The failure of petitioner to give such notice renders its present claim inefficacious for now. Indeed, there is sufficient cause to dismiss outright petitioner's Motion for Writ of Immediate Execution filed with the Probate Court, for its failure to notify therein the other persons interested in the estate of Doa Adela. Nonetheless, to authorize said outright denial at this stage could unduly delay the settlement of the estate of Doa Adela, considering the likelihood that petitioner would again pursue such claim for attorney's fees as the right to which is affirmed by law and jurisprudence. Hence, in order not to unduly protract further the settlement of the estate of Doa Adela, the Court deems it proper instead to mandate the Probate Court to treat the Motion for Writ of Immediate Execution as a petition seeking a court order to direct the payment of attorney's fees as expenses of administration, but subject to the condition that petitioner give due notice to the other designated devisees and legatees so designated in the will of the claim prior to the requisite hearing thereon. Petitioner may as well seize such opportunity to formally amend or reconfigure its motion to a petition to direct payment of attorney's fees. Once this step is accomplished, there should be no impediment to petitioner's claim for recovery of attorney's fees as reimbursement for necessary administration expenses, within the terms established by law, jurisprudence, and this decision.

One final note. Petitioner's final prayer before this court is that it be issued a partial writ of execution, consistent with its position before the Probate Court that it is already entitled to at least a partial payment of its attorney's fees. This prayer cannot obviously be granted at this stage by the Court, considering the fatal absence of due notice to the other designated beneficiaries to the estate of Doa Adela. Still, we do not doubt that the Probate Court, within its discretion, is capacitated to render the award of attorney's fees as administration expenses either partially or provisionally, depending on the particular circumstances and its ultimate basis for the determination of the appropriate attorney's fees. WHEREFORE, the petition is GRANTED IN PART. The Decision of the Court of Appeals dated 22 December 1995 and the Orders of the Regional Trial Court of Malabon, Branch 72, dated 2 June 1994 and 17 March 1995 are hereby SET ASIDE insofar as said orders denied petitioner's Motion for Writ of Immediate Execution dated 26 April 1994. Petitioner is hereby directed to set for hearing its claim for attorneys fees, giving due notice thereof to all the heirs, devisees, and legatees designated in the 1978 Last Will and Testament executed by Doa Adela Pascual. The Regional Trial Court is directed to treat petitioner's aforesaid motion as a PETITION for the payment of attorney's fees as expenses of administration, and after due hearing resolve the same with DISPATCH, conformably with this decision. No pronouncement as to costs. SO ORDERED.

2. G.R. No. 174489. April 11, 2012.* ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L. MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA, JR., and RAFAEL TITCO, petitioners, vs. LORENZO LAXA, respondent. Civil Law; Wills; Testamentary Succession; Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit: Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that 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. Same; Same; Same; The state of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to execute a Will.We agree with the position of the CA that the state of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to execute a Will. Forgetfulness is not equivalent to being of unsound mind. Besides, Article 799 of the New Civil Code states: Art. 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 unshattered 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.

Same; Same; Same; A purported will is not to be denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its foundation, for even if a will has been duly executed in fact, whether it will be probated would have to depend largely on the attitude of those interested in the estate of the deceased. It is worth stressing that bare arguments, no matter how forceful, if not based on concrete and substantial evidence cannot suffice to move the Court to uphold said allegations. Furthermore, a purported will is not *to be+ denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its foundation, for even if a will has been duly executed in fact, whether x x x it will be probated would have to depend largely on the attitude of those interested in [the estate of the deceased+. Same; Same; Same; The very existence of the Will is in itself prima facie proof that the supposed testatrix has willed that her estate be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given full effect independent of the attitude of the parties affected thereby. It bears stressing that *i+rrespective x x x of the posture of any of the parties as regards the authenticity and due execution of the will x x x in question, it is the mandate of the law that it is the evidence before the court and/or [evidence that] ought to be before it that is controlling. The very existence of *the Will+ is in itself prima facie proof that the supposed *testatrix+ has will ed that [her] estate be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given full effect independent of the attitude of the parties affected thereby. This, coupled with Lorenzos established relationship with Paciencia, the evidence and the testimonies of disinterested witnesses, as opposed to the total lack of evidence presented by petitioners apart from their self-serving testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its allowance for probate. [Baltazar vs. Laxa, 669 SCRA 249(2012)] Republic of the Philippines SUPREME COURT Baguio FIRST DIVISION G.R. No. 174489 April 11, 2012

ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L. MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA, JR., and RAFAEL TITCO, Petitioners, vs. LORENZO LAXA, Respondent. DECISION DEL CASTILLO, J.: It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent was not of sound and disposing mind at the time of the execution of said will. Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute his estate in the manner provided in his will so long as it is legally 1 tenable. Before us is a Petition for Review on Certiorari of the June 15, 2006 Decision of the Court of Appeals (CA) in 4 CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision of the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G-1186. The assailed CA Decision granted the petition for probate of the notarial will of Paciencia Regala (Paciencia), to wit:
2 3

WHEREFORE, premises considered, finding the appeal to be impressed with merit, the decision in SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and a new one entered GRANTING the petition for the probate of the will of PACIENCIA REGALA. SO ORDERED.
5

Also assailed herein is the August 31, 2006 CA Resolution which denied the Motion for Reconsideration thereto. Petitioners call us to reverse the CAs assailed Decision and instead affirm the Decision of the RTC which disallowed the notarial will of Paciencia. Factual Antecedents Paciencia was a 78 year old spinster when she made her last will and testament entitled "Tauli Nang Bilin o 7 Testamento Miss Paciencia Regala" (Will) in the Pampango dialect on September 13, 1981. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental witnesses that the document is her last will and 8 testament. She thereafter affixed her signature at the end of the said document on page 3 and then on the left 9 margin of pages 1, 2 and 4 thereof. The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado (Faustino). The three attested to the Wills due execution by affixing their signatures below 10 11 its attestation clause and on the left margin of pages 1, 2 and 4 thereof, in the presence of Paciencia and of one another and of Judge Limpin who acted as notary public. Childless and without any brothers or sisters, Paciencia bequeathed all her properties to respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna Lorella Laxa and Katherine Ross Laxa, thus: xxxx Fourth - In consideration of their valuable services to me since then up to the present by the spouses LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all my properties enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA and CORAZON F. LAXA and their children, LUNA LORELLA LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal age, Filipinos, presently residing at Barrio Sta. Monica, [Sasmuan], Pampanga and their children, LUNA LORELLA and KATHERINE ROSS LAXA, who are still not of legal age and living with their parents who would decide to bequeath since they are the children of the spouses; xxxx [Sixth] - Should other properties of mine may be discovered aside from the properties mentioned in this last will and testament, I am also bequeathing and giving the same to the spouses Lorenzo R. Laxa and Corazon F. Laxa and their two children and I also command them to offer masses yearly for the repose of my soul and that of D[]a Nicomeda Regala, Epifania Regala and their spouses and with respect to the fishpond situated at San Antonio, I likewise command to fulfill the wishes of D[]a Nicomeda Regala in accordance with her testament as stated in 12 my testament. x x x The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencias nephew whom she 13 treated as her own son. Conversely, Lorenzo came to know and treated Paciencia as his own mother. Paciencia lived with Lorenzos family in Sasmuan, Pampanga and it was she who raised and cared for Lorenzo since his birth. Six days after the execution of the Will or on September 19, 1981, Paciencia left for the United States of America (USA). There, she resided with Lorenzo and his family until her death on January 4, 1996.

In the interim, the Will remained in the custody of Judge Limpin. More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a petition with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance of Letters of Administration in his favor, docketed as Special Proceedings No. G-1186. There being no opposition to the petition after its due publication, the RTC issued an Order on June 13, 15 2000 allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra. Limpin testified that she was one of the instrumental witnesses in the execution of the last will and testament of Paciencia on September 13, 16 1981. The Will was executed in her fathers (Judge Limpin) home office, in her presence and of two other 17 witnesses, Francisco and Faustino. Dra. Limpin positively identified the Will and her signatures on all its four 18 19 pages. She likewise positively identified the signature of her father appearing thereon. Questioned by the prosecutor regarding Judge Limpins present mental fitness, Dra. Limpin testified that her father had a stroke in 20 1991 and had to undergo brain surgery. The judge can walk but can no longer talk and remember her name. 21 Because of this, Dra. Limpin stated that her father can no longer testify in court. The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an opposition to Lorenzos petition. Antonio averred that the properties subject of Paciencias Will belong to Nicomeda Regala Mangalindan, 23 his predecessor-in-interest; hence, Paciencia had no right to bequeath them to Lorenzo. Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M. Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo (Rosie) and Antonio L. Mangalindan 24 filed a Supplemental Opposition contending that Paciencias Will was null and void because ownership of the properties had not been transferred and/or titled to Paciencia before her death pursuant to Article 1049, 25 paragraph 3 of the Civil Code. Petitioners also opposed the issuance of Letters of Administration in Lorenzos favor arguing that Lorenzo was disqualified to be appointed as such, he being a citizen and resident of the 26 27 USA. Petitioners prayed that Letters of Administration be instead issued in favor of Antonio. Later still on September 26, 2000, petitioners filed an Amended Opposition asking the RTC to deny the probate of Paciencias Will on the following grounds: the Will was not executed and attested to in accordance with the requirements of the law; that Paciencia was mentally incapable to make a Will at the time of its execution; that she was forced to execute the Will under duress or influence of fear or threats; that the execution of the Will had been procured by undue and improper pressure and influence by Lorenzo or by some other persons for his benefit; that the signature of Paciencia on the Will was forged; that assuming the signature to be genuine, it was obtained through fraud or trickery; and, that Paciencia did not intend the document to be her Will. Simultaneously, 29 petitioners filed an Opposition and Recommendation reiterating their opposition to the appointment of Lorenzo as administrator of the properties and requesting for the appointment of Antonio in his stead. On January 29, 2001, the RTC issued an Order denying the requests of both Lorenzo and Antonio to be appointed administrator since the former is a citizen and resident of the USA while the latters claim as a co -owner of the properties subject of the Will has not yet been established. Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin was recalled for crossexamination by the petitioners. She testified as to the age of her father at the time the latter notarized the Will of Paciencia; the living arrangements of Paciencia at the time of the execution of the Will; and the lack of 31 photographs when the event took place. Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness stand. Monico, son of Faustino, testified on his fathers condition. According to him his father can no longer talk and express himself due 32 to brain damage. A medical certificate was presented to the court to support this allegation. For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980, he lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia went to the USA and lived with him and his family until her death in January 1996; the relationship between him and Paciencia was like that of a mother and
30 28 22 14

child since Paciencia took care of him since birth and took him in as an adopted son; Paciencia was a spinster without children, and without brothers and sisters; at the time of Paciencias death, she did not suffer from any mental disorder and was of sound mind, was not blind, deaf or mute; the Will was in the custody of Judge Limpin and was only given to him after Paciencias death through Faustino; and he was already residing in the USA 33 when the Will was executed. Lorenzo positively identified the signature of Paciencia in three different documents and in the Will itself and stated that he was familiar with Paciencias signature because he accompanied her in 34 her transactions. Further, Lorenzo belied and denied having used force, intimidation, violence, coercion or 35 trickery upon Paciencia to execute the Will as he was not in the Philippines when the same was executed. On cross-examination, Lorenzo clarified that Paciencia informed him about the Will shortly after her arrival in the USA 36 but that he saw a copy of the Will only after her death. As to Francisco, he could no longer be presented in court as he already died on May 21, 2000. For petitioners, Rosie testified that her mother and Paciencia were first cousins. She claimed to have helped in the household chores in the house of Paciencia thereby allowing her to stay therein from morning until evening and that during the period of her service in the said household, Lorenzos wife and his children were staying in the 38 same house. She served in the said household from 1980 unt il Paciencias departure for the USA on September 39 19, 1981. On September 13, 1981, Rosie claimed that she saw Faustino bring "something" for Paciencia to sign at the 40 latters house. Rosie admitted, though, that she did not see what that "something" was as same was placed 41 inside an envelope. However, she remembered Paciencia instructing Faustino to first look for money before she 42 signs them. A few days after or on September 16, 1981, Paciencia went to the house of Antonios mother and 43 brought with her the said envelope. Upon going home, however, the envelope was no longer with 44 Paciencia. Rosie further testified that Paciencia was referred to as "magulyan" or "forgetful" because she would 45 sometimes leave her wallet in the kitchen then start looking for it moments later. On cross examination, it was established that Rosie was neither a doctor nor a psychiatrist, that her conclusion that Paciencia was "magulyan" 46 47 was based on her personal assessment, and that it was Antonio who requested her to testify in court. In his direct examination, Antonio stated that Paciencia was his aunt. He identified the Will and testified that he had seen the said document before because Paciencia brought the same to his mothers house and showed it to 49 him along with another document on September 16, 1981. Antonio alleged that when the documents were 50 shown to him, the same were still unsigned. According to him, Paciencia thought that the documents pertained 51 to a lease of one of her rice lands, and it was he who explained that the documents were actually a special power of attorney to lease and sell her fishpond and other properties upon her departure for the USA, and a Will 52 which would transfer her properties to Lorenzo and his family upon her death. Upon hearing this, Paciencia allegedly uttered the following words: "Why will I never [return], why will I sell all my properties?" Who is Lorenzo? Is he the only [son] of God? I have other relatives [who should] benefit from my properties. Why should I die 53 already?" Thereafter, Antonio advised Paciencia not to sign the documents if she does not want to, to which the latter purportedly replied, "I know nothing about those, throw them away or it is up to you. The more I will not sign 54 them." After which, Paciencia left the documents with Antonio. Antonio kept the unsigned documents and eventually turned them over to Faustino on September 18, 1981. Ruling of the Regional Trial Court On September 30, 2003, the RTC rendered its Decision
56 55 48 37

denying the petition thus:

WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows the notarized will dated September 13, 1981 of Paciencia Regala. SO ORDERED.
57

The trial court gave considerable weight to the testimony of Rosie and concluded that at the time Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of mind to have testamentary 58 capacity. Ruling of the Court of Appeals On appeal, the CA reversed the RTC Decision and granted the probate of the Will of Paciencia. The appellate court did not agree with the RTCs conclusion that Paciencia was of unsound mind when she executed th e Will. It ratiocinated that "the state of being magulyan does not make a person mentally unsound so [as] to render 59 [Paciencia] unfit for executing a Will." Moreover, the oppositors in the probate proceedings were not able to overcome the presumption that every person is of sound mind. Further, no concrete circumstances or events 60 were given to prove the allegation that Paciencia was tricked or forced into signing the Will. Petitioners moved for reconsideration 2006. Hence, this petition. Issues Petitioners come before this Court by way of Petition for Review on Certiorari ascribing upon the CA the following errors: I. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED THE PROBATE OF PACIENCIAS WILL DESPITE RESPONDENTS UTTER FAILURE TO COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF COURT; II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD; III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND AT THE TIME THE WILL WAS 63 ALLEGEDLY EXECUTED The pivotal issue is whether the authenticity and due execution of the notarial Will was sufficiently established to warrant its allowance for probate. Our Ruling We deny the petition. Faithful compliance with the formalities laid down by law is apparent from the face of the Will. Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate proceedings. expressly provided for in Rule 75, Section 1 of the Rules of Court, which states:
64 61

but the motion was denied by the CA in its Resolution

62

dated August 31,

This is

Rule 75 Production of Will. Allowance of Will Necessary. Section 1. Allowance necessary. Conclusive as to execution. No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution. Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely 65 executed the will in accordance with the formalities prescribed by law. These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit: 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. Here, a careful examination of the face of the Will shows faithful compliance with the formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental witnesses and the notary public, are all present and evident on the Will. Further, the attestation clause explicitly states the critical requirement that the testatrix and her instrumental witnesses signed the Will in the presence of one another and that the witnesses attested and subscribed to the Will in the presence of the testator and of one another. In fact, even the petitioners acceded that the signature of Paciencia in the Will may be authentic although they question her state of mind when she signed the same as well as the voluntary nature of said act. The burden to prove that Paciencia was of unsound mind at the time of the execution of the will lies on the shoulders of the petitioners. Petitioners, through their witness Rosie, claim that Paciencia was "magulyan" or forgetful so much so that it 66 effectively stripped her of testamentary capacity. They likewise claimed in their Motion for Reconsideration filed 67 with the CA that Paciencia was not only "magulyan" but was actually suffering from paranoia. We are not convinced. We agree with the position of the CA that the state of being forgetful does not necessarily make a person mentally 68 unsound so as to render him unfit to execute a Will. Forgetfulness is not equivalent to being of unsound mind. Besides, Article 799 of the New Civil Code states: Art. 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 unshattered 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. In this case, apart from the testimony of Rosie pertaining to Paciencias forgetfulness, there is no substantial evidence, medical or otherwise, that would show that Paciencia was of unsound mind at the time of the execution of the Will. On the other hand, we find more worthy of credence Dra. Limpins testimony as to the soundness of mind of Paciencia when the latter went to Judge Limpins house and voluntarily executed the Will. "The testimony of subscribing witnesses to a Will concerning the testators mental condition is entitled to great weight where they 69 are truthful and intelligent." More importantly, a testator is presumed to be of sound mind at the time of the execution of the Will and the burden to prove otherwise lies on the oppositor. Article 800 of the New Civil Code states: Art. 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. Here, there was no showing that Paciencia was publicly known to be insane one month or less before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of unsound mind lies upon the shoulders of petitioners. However and as earlier mentioned, no substantial evidence was presented by them to prove the same, thereby warranting the CAs finding that petitioners failed to discharge such burden. Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be disposed of, the proper objects of her bounty and the character of the testamentary act. As aptly pointed out by the CA: A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she executed. She specially requested that the customs of her faith be observed upon her death. She was well aware of how she acquired the properties from her parents and the properties she is bequeathing to LORENZO, to his wife CORAZON and to his two (2) children. A third child was born after the execution of the will and was not included 70 therein as devisee. Bare allegations of duress or influence of fear or threats, undue and improper influence and pressure, fraud and trickery cannot be used as basis to deny the probate of a will. An essential element of the validity of the Will is the willingness of the testator or testatrix to execute the document that will distribute his/her earthly possessions upon his/her death. Petitioners claim that Paciencia was forced to execute the Will under duress or influence of fear or threats; that the execution of the Will had been procured by undue and improper pressure and influence by Lorenzo or by some other persons for his benefit; and that assuming Paciencias signature to be genuine, it was obtained through fraud or trickery. These are grounded on the alleged conversation between Paciencia and Antonio on September 16, 1981 wherein the former purportedly repudiated the Will and left it unsigned. We are not persuaded. We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as her own son and that love even extended to Lorenzos wife and children. This kind of relationship is not unusual. It is in fact not unheard of in our culture for old maids or spinsters to care for and raise their nephews and nieces and treat them as their own children. Such is a prevalent and accepted cultural practice that has resulted in many family discords between those favored by the testamentary disposition of a testator and those who stand to benefit in case of intestacy.

In this case, evidence shows the acknowledged fact that Paciencias relationship with Lorenzo and his family is different from her relationship with petitioners. The very fact that she cared for and raised Lorenzo and lived with him both here and abroad, even if the latter was already married and already has children, highlights the special bond between them. This unquestioned relationship between Paciencia and the devisees tends to support the authenticity of the said document as against petitioners allegations of duress, influence of fear or threats, undue and improper influence, pressure, fraud, and trickery which, aside from being factual in nature, are not supported by concrete, substantial and credible evidence on record. It is worth stressing that bare arguments, no matter how forceful, if not based on concrete and substantial evidence cannot suffice to move the Court to uphold said 71 allegations. Furthermore, "a purported will is not [to be] denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its foundation, for even if a will has been duly executed in fact, whether x x x it will be probated would have to depend largely on the attitude of those interested 72 in [the estate of the deceased]." Court should be convinced by the evidence presented before it that the Will was duly executed. Petitioners dispute the authenticity of Paciencias Will on the ground that Section 11 of Rule 76 of the Rules of Court was not complied with. It provides: RULE 76 Allowance or Disallowance of Will Section 11. Subscribing witnesses produced or accounted for where will contested. If the will is contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken. If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witnesses, and if the court deem it necessary, expert testimony may be resorted to. (Emphasis supplied.) They insist that all subscribing witnesses and the notary public should have been presented in court since all but one witness, Francisco, are still living. We cannot agree with petitioners. We note that the inability of Faustino and Judge Limpin to appear and testify before the court was satisfactorily explained during the probate proceedings. As testified to by his son, Faustino had a heart attack, was already bedridden and could no longer talk and express himself due to brain damage. To prove this, said witness presented the corresponding medical certificate. For her part, Dra. Limpin testified that her father, Judge Limpin, suffered a stroke in 1991 and had to undergo brain surgery. At that time, Judge Limpin could no longer talk and could not even remember his daughters name so that Dra. Limpin stated that given such condition, her father could no longer testify. It is well to note that at that point, despite ample opportunity, petitioners neither interposed any objections to the testimonies of said witnesses nor challenged the same on cross examination. We thus hold that for all intents and purposes, Lorenzo was able to satisfactorily account for the incapacity and failure of the said subscribing witness and of the notary public to testify in court. Because of this the probate of Paciencias Will may be allowed on the basis of Dra. Limpins testimony proving her sanity and the due execution of the Will, as well as on the proof of her handwriting. It is an established rule that "[a] testament may not be disallowed just

because the attesting witnesses declare against its due execution; neither does it have to be necessarily allowed just because all the attesting witnesses declare in favor of its legalization; what is decisive is that the court is convinced by evidence before it, not necessarily from the attesting witnesses, although they must testify, that the 73 will was or was not duly executed in the manner required by law." 1wphi1 Moreover, it bears stressing that "[i]rrespective x x x of the posture of any of the parties as regards the authenticity and due execution of the will x x x in question, it is the mandate of the law that it is the evidence before the court 74 and/or [evidence that] ought to be before it that is controlling." "The very existence of [the Will] is in itself prima facie proof that the supposed [testatrix] has willed that [her] estate be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given full effect independent of the 75 attitude of the parties affected thereby." This, coupled with Lorenzos established relationship with Paciencia, the evidence and the testimonies of disinterested witnesses, as opposed to the total lack of evidence presented by petitioners apart from their self-serving testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its allowance for probate. WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the Resolution dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are AFFIRMED. SO ORDERED.

3. G.R. Nos. 130371 & 130855. August 4, 2009.* REPUBLIC OF THE PHILIPPINES, petitioner, vs. FERDINAND R. MARCOS II and IMELDA R. MARCOS, respondents. Probate Proceedings; Appeals; Pleadings and Practice; A reading of Supreme Court Circular 2-90, in relation to Section 17 of the Judiciary Act of 1948, clearly shows that the propriety of granting letters testamentary does not fall within any ground which can be the subject of a direct appeal to the Supreme Court. A reading of Supreme Court Circular 2-90, in relation to Section 17 of the Judiciary Act of 1948, clearly shows that the subject matter of therein petition, that is, the propriety of granting letters testamentary to respondents, do not fall within any ground which can be the subject of a direct appeal to this Court. The CA was thus correct in declaring that the issues raised by petitioner do not fal l within the purview of Section 17 of the Judiciary Act of 1948 such that the Supreme Court should take cognizance of the instant case. Same; Where the Supreme Courts resolution is clear that the petition was referred to the Court of Appeals for consideration and adjudication on the merits or any other action as it may deem appropriate, no error can be attributed to the CA when the action it deemed appropriate was to dismiss the petition for having availed of an improper remedy. To stress, the February 5, 1997 Resolution reads: The special civil action for certiorari as well as all the other pleadings filed herein are REFERRED to the Court of Appeals for consideration and adjudication on the merits or any other action as it may deem appropriate, the latter having jurisdiction concurrent with this Court over the Case, and this Court having been cited to no special and important reason for it to take cognizance of said case in the first instance. Based thereon, this Court agrees with the ruling of the CA that said resolution gave the CA discretion and latitude to decide the petition as it may deem proper. The resolution is clear that the petition was referred to the CA for consideration and adjudication on the merits or any other action as it may deem appropriate. Thus, no error can be attributed to the CA when the action it deemed appropriate was to dismiss the petition for having availed of an improper remedy. More importantly, the action of the CA was sanctioned under Section 4 of Supreme Court Circular 2-90 which provides that an appeal taken to either the Supreme Court or the Court of Appeals by the wrong mode or inappropriate mode shall be dismissed. Same; Wills and Succession; The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he wishes. At the crux of the controversy is a determination of whether

or not respondents are incompetent to serve as executors of the will of Ferdinand Marcos. Ozeata v. Pecson, 93 Phil. 420 (1953), is instructive: The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of the estate. The curtailment of this right may be considered as a curtailment of the right to dispose. And as the rights granted by will take effect from the time of death (Article 777, Civil Code of the Philippines), the management of his estate by the administrator of his choice should be made as soon as practicable, when no reasonable objection to his assumption of the trust can be interposed any longer. It has been held that when a will has been admitted to probate, it is the duty of the court to issue letters testamentary to the person named as executor upon his application (23 C.J. 1023). Same; Same; The Rules of Court gives the lower court the duty and discretion to determine whether in its opinion an individual is unfit to serve as an executorthe sufficiency of any ground for removal should thus be determined by the said court.This Court stresses that an appellate court is disinclined to interfere with the action taken by the probate court in the matter of removal of an executor or administrator unless positive error or gross abuse of discretion is shown. The Rules of Court gives the lower court the duty and discretion to determine whether in its opinion an individual is unfit to serve as an executor. The sufficiency of any ground for removal should thus be determined by the said court, whose sensibilities are, in the first place, affected by any act or omission on the part of the administrator not conformable to or in disregard of the rules of orders of the court. Same; Same; Moral Turpitude; Taxation; Conviction for failure to file an income tax return is not a crime involving moral turpitude, thus it could not serve to disqualify a person from being appointed as an executor.Since respondent Ferdinand Marcos II has appealed his conviction relating to four violations of Section 45 of the NIRC, the same should not serve as a basis to disqualify him to be appointed as an executor of the will of his father. More importantly, even assuming arguendo that his conviction is later on affirmed, the same is still insufficient to disqualify him as the failure to file an income tax return is not a crime involving moral turpitude. In Villaber v. Commision on Elections, 369 SCRA 126 (200 1), this Court held: As to the meaning of moral turpitude, we have consistently adopted the definition in Blacks Law Dictionary as an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals. In In re Vinzon, the term moral turpitude is considered as encompassing everything which is done contrary to justice, honesty, or good morals. x x x x We, however, clarified in Dela Torre vs. Commission on Elections, 258 SCRA 483 (1996), that not every criminal act involves moral turpitude, and that as to what crime involves moral turpitude is for the Supreme Court to determine. Same; Same; Same; Same; The failure to file an income tax return is not a crime involving moral turpitude as the mere omission is already a violation regardless of the fraudulent intent or willfulness of the individual. The failure to file an income tax return is not a crime involving moral turpitude as the mere omission is already a violation regardless of the fraudulent intent or willfulness of the individual. This conclusion is supported by the provisions of the NIRC as well as previous Court decisions which show that with regard to the filing of an income tax return, the NIRC considers three distinct violations: (1) a false return, (2) a fraudulent return with intent to evade tax, and (3) failure to file a return. Same; Same; Same; Same; The filing of a fraudulent return with intent to evade tax is a crime involving moral turpitude as it entails willfulness and fraudulent intent on the part of the individual, but the same, however, cannot be said for failur e to file a return where the mere omission already constitutes a violation.Applying the foregoing considerations to the case at bar, the filing of a fraudulent return with intent to evade tax is a crime involving moral turpitude as it entails willfulness and fraudulent intent on the part of the individual. The same, however, cannot be said for failure to file a return where the mere omission already constitutes a violation. Thus, this Court holds that even if the conviction of

respondent Marcos II is affirmed, the same not being a crime involving moral turpitude cannot serve as a ground for his disqualification. Courts; Supreme Court; Judicial Power; Time and again, the Supreme Court has stressed that it is a court of law and not a court of public opinion.Petitioner contends that respondents have strongly objected to the transfer to the Philippines of the Marcos assets deposited in the Swiss Banks and thus the same should serve as a ground for their disqualification to act as executors. This Court does not agree. In the first place, the same are mere allegations which, without proof, deserve scant consideration. Time and again, this Court has stressed that this Court is a court of law and not a court of public opinion. Moreover, petitioner had already raised the same argument in its motion for partial reconsideration before the RTC. Said court, however, still did not find the same as a sufficient ground to disqualify respondents. Again, in the absence of palpable error or gross abuse of discretion, this Court will not interfere with the RTCs discretion. Evidence; Burden of Proof; It is basic that one who alleges a fact has the burden of proving it and a mere allegation is not evidence.Petitioner argues that the assailed RTC Orders were based solely on their own evidence and that respondents offered no evidence to show that they were qualified to serve as executors. It is basic that one who alleges a fact has the burden of proving it and a mere allegation is not evidence. Consequently, it was the burden of petitioner (not respondents) to substantiate the grounds upon which it claims that respondents should be disqualified to serve as executors, and having failed in doing so, its petition must necessarily fail. [Republic vs. Marcos II, 595 SCRA 43(2009)]

Republic of the Philippines Supreme Court Manila THIRD DIVISION

G.R. Nos. 130371 &130855

REPUBLIC OF THE PHILIPPINES, Petitioner, Present: YNARES-SANTIAGO, J., Chairperson, CHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ. Promulgated: August 4, 2009

- versus -

FERDINAND R. MARCOS II and IMELDA R. MARCOS, Respondents.

x--------------------------------------------------x

DECISION

PERALTA, J.: Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court, seeking to set aside the March 13, 1997 Decision[2] and August 27, 1997 Resolution[3] of the Court of Appeals (CA) in CA-G.R. SP No. 43450. The facts of the case are as follows: On January 11, 1996, the Regional Trial Court (RTC) of Pasig City Branch 156, acting as a probate court, in Special Proceeding No. 10279, issued an Order [4] granting letters testamentary in solidum to respondents Ferdinand R. Marcos II and Imelda Trinidad Romualdez-Marcos as executors of the last will and testament of the late Ferdinand E. Marcos. The dispositive portion of the January 11, 1996 Order reads: WHEREFORE, finding the Last Will and Testament of Ferdinand Edralin Marcos to have been duly executed in accordance with law, the same is hereby ALLOWED AND ADMITTED TO PROBATE. Upon the filing of a bond in the amount of P50,000.00, let letters testamentary be issued in solidum to Imelda Trinidad Romualdez-Marcos AND Ferdinand Romualdez Marcos II, named executors therein. Pending the filing of said bond and their oath, Commissioner Liwayway Vinzons-Chato of the Bureau of Internal Revenue is hereby authorized to continue her functions as Special Administrator of the Estate of Ferdinand Edralin Marcos. Let NOTICE be given to all known heirs and creditors of the decedent, and to any other persons having an interest in the estate for them to lay their claim against the Estate or forever hold their peace. SO ORDERED.[5]

On January 15, 1996, the petitioner Republic of the Philippines filed a Motion for Partial Reconsideration[6] in so far as the January 11, 1996 RTC Order granted letters testamentary to respondents. On the other hand, respondent Imelda Marcos filed her own motion for reconsideration on the ground that the will is lost and that petitioner has not proven its existence and validity. On February 5, 1996, respondent Ferdinand Marcos II filed a Compliance stating that he already filed a bond in the amount of P50,000.00 as directed by the January 11, 1996 RTC Order and that he took his oath as named executor of the will on January 30, 1996. On March 13, 1996, the RTC issued Letters of Administration[7] to BIR Commissioner Liwayway Vinzons-Chato in accordance with an earlier Order dated September 9, 1994, appointing her as Special Administratrix of the Marcos Estate. On April 1, 1996, respondent Ferdinand Marcos II filed a Motion to Revoke the Letters of Administration issued by the RTC to BIR Commissioner Vinzons-Chato.

On April 26, 1996, the RTC issued an Order[8] denying the motion for partial reconsideration filed by petitioner as well as the motion for reconsideration filed by respondent Imelda Marcos, the penultimate portion of which reads: Under the Rules, a decedents testamentary privilege must be accorded utmost respect. Guided by this legal precept, therefore, in resolving the two (2) motions at hand, the Court is constrained to DENY both. Examining the arguments poised by the movants, the Court observed that these are but a mere rehash of issues already raised and passed upon by the Court. One has to review the previous orders issued by the Court in this case, e.g., the orders dated September 9, 1994, November 25, 1994, as well as October 3, 1995, to see that even as far back then, the Court has considered the matter of competency of the oppositors and of Commissioner Liwayway Vinzons-Chato as having been settled. It cannot be overstressed that the assailed January 11, 1996 Orders of the Court was arrived at only after extensive consideration of every legal facet available on the question of validity of the Will. WHEREFORE, for lack of merit, the motion for reconsideration by petitioner Republic and oppositor Imelda R. Marcos are both DENIED. SO ORDERED.[9] On June 6, 1996, petitioner filed with this Court a Petition for Review on Certiorari, under Ruled 45 of the Rules of Court, questioning the aforementioned RTC Orders granting letters testamentary to respondents. On February 5, 1997, the First Division of this Court issued a Resolution referring the petition to the CA, to wit: x x x x The special civil action for certiorari as well as all the other pleadings filed herein are REFERRED to the Court of Appeals for consideration and adjudication on the merits or any other action as it may deem appropriate, the latter having jurisdiction concurrent with this Court over the Case, and this Court having been cited to no special and important reason for it to take cognizance of said case in the first instance.[10] (Emphasis and Underscoring Supplied) filed separately

On March 13, 1997, the CA issued a Decision,[11] dismissing the referred petition for having taken the wrong mode of appeal, the pertinent portions of which reads: Consequently, for having taken the wrong mode of appeal, the present petition should be dismissed in accordance with the same Supreme Court Circular 2-90 which expressly provides that: 4. Erroneous Appeals An appeal taken to either the Supreme Court or the Court of Appeals by the wrong or inappropriate mode shall be dismissed. IN VIEW OF THE FOREGOING, the instant petition for review is hereby DISMISSED. SO ORDERED.[12]

Petitioner filed a Motion for Reconsideration,[13] which was, however denied Resolution[14] dated August 27, 1997. Hence, herein petition, with petitioner raising the following assignment of errors, to wit: I.

by

the

CA

in

THE COURT OF APPEALS GRAVELY ERRED IN DISMISSING THE PETITION ON TECHNICAL GROUNDS DESPITE THE SUPREME COURT RESOLUTION SPECIFICALLY REFERRING SAID PETITION FOR A DECISION ON THE MERITS. II. THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER THAT RESPONDENTS IMELDA R. MARCOS AND FERDINAND R. MARCOS II SHOULD BE DISQUALIFIED TO ACT AND SERVE AS EXECUTORS. III. THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER THAT SAID PRIVATE RESPONDENTS HAVE DENIED AND DISCLAIMED THE VERY EXISTENCE AND VALIDITY OF THE MARCOS WILL. IV. THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER THAT ITS ORDER OF JANUARY 11, 1996, WHICH ADMITTED THE MARCOS WILL TO PROBATE AND WHICH DIRECTED THE ISSUANCE OF LETTERS TESTAMENTARY IN SOLIDUM TO PRIVATE RESPONDENTS AS EXECUTORS OF SAID MARCOS WILL, WAS BASED ON THE EVIDENCE OF THE REPUBLIC ALONE. V. THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER THAT BOTH PRIVATE RESPONDENTS HAVE OBSTRUCTED THE TRANSFER TO THE PHILIPPINES OF THE MARCOS ASSETS DEPOSITED IN THE SWISS BANKS.[15]

Order

[16]

In the meantime, on October 9, 2002, the RTC, acting on the pending unresolved motions before it, issued an which reads:

WHEREFORE, the Court hereby appoints as joint special administrators of the estate of the late Ferdinand E. Marcos, the nominee of the Republic of the Philippines (the Undersecretary of the Department of Justice whom the Secretary of Justice will designate for this purpose) and Mrs. Imelda Romualdez Marcos and Mr. Ferdinand R. Marcos II, to serve as such until an executor is finally appointed. SO ORDERED. The petition is without merit. When the assailed Orders granting letters testamentary in solidum to respondents were issued by the RTC, petitioner sought to question them by filing a petition for review on certiorari under Rule 45 of the Rules of Court.

Supreme Court Circular No. 2-90,[17] which was then in effect, reads: 2. Appeals from Regional Trial Courts to the Supreme Court. Except in criminal cases where the penalty imposed is life imprisonment to reclusion perpetua, judgments of regional trial courts may be appealed to the Supreme Court only by petition for review on certiorari in accordance with Rule 45 of the Rules of Court in relation to Section 17 of the Judiciary Act of 1948, as amended, this being the clear intendment of the provision of the Interim Rules that (a)ppeals to the Supreme Court shall be taken by petition for certiorari which shall be governed by Rule 45 of the Rules of Court. (Emphasis and Underscoring Supplied) The pertinent portions of Section 17[18] of the Judiciary Act of 1948 read: The Supreme Court shall further have exclusive jurisdiction to review, revise, reverse, modify or affirm on certiorari as the law or rules of court may provide, final judgments and decrees of inferior courts as herein provided, in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question; (2) All cases involving the legality of any tax, impost, assessment or toll, or any penalty imposed in relation thereto; (3) All cases in which the jurisdiction of any inferior court is in issue; (4) All other cases in which only errors or questions of law are involved: Provided, however, That if, in addition to constitutional, tax or jurisdictional questions, the cases mentioned in the three next preceding paragraphs also involve questions of fact or mixed questions of fact and law, the aggrieved party shall appeal to the Court of Appeals; and the final judgment or decision of the latter may be reviewed, revised, reversed, modified or affirmed by the Supreme Court on writ of certiorari; and (5) Final awards, judgments, decision or orders of the Commission on Elections, Court of Tax Appeals, Court of Industrial Relations, the Public Service Commission, and the Workmens Compensation Commission. A reading of Supreme Court Circular 2-90, in relation to Section 17 of the Judiciary Act of 1948, clearly shows that the subject matter of therein petition, that is, the propriety of granting letters testamentary to respondents, do not fall within any ground which can be the subject of a direct appeal to this Court. The CA was thus correct in declaring that the issues raise d by petitioner do not fall within the purview of Section 17 of the Judiciary Act of 1948 such that the Supreme Court should take cognizance of the instant case.[19] Moreover, the Courts pronouncement in Suarez v. Judge Villarama[20] is instructive: Section 4 of Circular No. 2-90, in effect at the time of the antecedents, provides that an appeal taken to either the Supreme Court or the Court of Appeals by the wrong mode or inappropriate mode shall be dismissed. This rule is now incorporated in Section 5, Rule 56 of the 1997 Rules of Civil Procedure. Moreover, the filing of the case directly with this Court runs afoul of the doctrine of hierarchy of courts. Pursuant to this doctrine, direct resort from the lower courts to the Supreme Court will not be entertained unless the appropriate remedy cannot be obtained in the lower tribunals. This Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the Constitution and immemorial tradition. Thus, a petition for review on certiorari assailing the decision involving both questions of fact and law must first be brought before the Court of Appeals.[21] Also, in Southern Negros Development Bank v. Court of Appeals,[22] this Court ruled:

It is incumbent upon private respondent qua appellants to utilize the correct mode of appeal of the decisions of trial courts to the appellate courts. In the mistaken choice of their remedy, they can blame no one but themselves (Jocson v. Baguio, 179 SCRA 550 [1989]; Yucuanseh Drug Co. v. National Labor Union, 101 Phil. 409 [1957]). x x x x Pursuant to Section 4 of Circular No. 2-90, which provides that "[a]n appeal taken to either the Supreme Court or the Court of Appeals by the wrong mode or inappropriate mode shall be dismissed," the only course of action of the Court to which an erroneous appeal is made is to dismiss the same. There is no longer any justification for allowing transfers of erroneous appeals from one court to another (Quesada v. Court of Appeals, G.R. No. 93869, November 12, 1990, First Division, Minute Resolution).[23] Based on the foregoing, petitioner cannot deny that the determination of whether or not respondents should be disqualified to act as executors is a question of fact. Hence, the proper remedy was to appeal to the CA, not to this Court. Petitioner is adamant, however, that notwithstanding the improper remedy, the CA should not have dismissed therein petition. Petitioner argues in the wise: However, as can be seen in the Resolution of February 5, 1997, (Annex H) this Honorable Court deemed it more proper to transmit the first Petition for Review to respondent appellate court for the reason that: This Court having been cited to no special and important reason for it to take cognizance of said case in the first instance. x x x It would appear then that even though this Honorable Court apparently considers the Republics petition as deserving to be given due course, it deemed it in the best interest of the parties concerned if the Court of Appeals would first take cognizance of said case, thereby preserving its stance as a court of last resort. Additionally, this Honorable Court itself plainly stated that the case under review is: .REFERRED to the Court of Appeals for consideration and adjudication on the merits. The latter having jurisdiction concurrent with this Court over the case [24] Petitioners arguments are misplaced. To stress, the February 5, 1997 Resolution reads: The special civil action for certiorari as well as all the other pleadings filed herein are REFERRED to the Court of Appeals for consideration and adjudication on the merits or any other action as it may deem appropriate, the latter having jurisdiction concurrent with this Court over the Case, and this Court having been cited to no special and important reason for it to take cognizance of said case in the first instance.[25]

Based thereon, this Court agrees with the ruling of the CA that said resolution gave the CA discretion and latitude to decide the petition as it may deem proper. The resolution is clear that the petition was referred to the CA for consideration and adjudication on the merits or any other action as it may deem appropriate. Thus, no error can be attributed to the CA when the action it deemed appropriate was to dismiss the petition for having availed of an improper remedy. More importantly, the action of the CA was sanctioned under Section 4 of Supreme Court Circular 2-90 which provides that an appeal taken to either the Supreme Court or the Court of Appeals by the wrong mode or inappropriate mode shall be dismissed.

Moreover, petitioner mistakenly relies in Oriental Media, Inc. v. Court of Appeals,[26] in which this Court made the following pronouncements: In the case at bar, there was no urgency or need for Oriental to resort to the extraordinary remedy of certiorari for when it learned of the case and the judgment against it on July 25, 1986, due to its receipt of a copy of the decision by default; no execution had as yet been ordered by the trial court. As aforementioned, Oriental had still the time and the opportunity to file a motion for reconsideration, as was actually done. Upon the denial of its motion for reconsideration in the first case, or at the latest upon the denial of its petition for relief from judgment, Oriental should have appealed . Oriental should have followed the procedure set forth in the Rules of Court for Rules of procedure are intended to ensure the orderly administration of justice and the protection of substantive rights in judicial and extrajudicial proceedings. It is a mistake to purpose that substantive law and adjective law are contradictory to each other or, as has often been suggested, that enforcement of procedural rules should never be permitted if it will result in prejudice to the substantive rights of the litigants. This is not exactly true; the concept is much misunderstood. As a matter of fact, the policy of the courts is to give effect to both kinds of law, as complementing each other, in the just and speedy resolution of the dispute between the parties. Observance of both substantive rights is equally guaranteed by due process whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. [27]

In the case at bar, as found by this Court in its February 5, 1997 Resolution, therein petition offered no important or special reason for the Court to take cognizance of it at the first instance. Petitioner offered no plausible reason why it went straight to this Court when an adequate and proper remedy was still available. The CA was thus correct that the remedy that petitioner should have availed of was to file an appeal under Rule 109 of the Rules of Court which states: Section 1. Orders of judgments from which appeals taken. An interested person may appeal in special proceedings from an order or judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where such order or judgment: (a) allows or disallows a will;

Because of the preceding discussion, herein petition must necessarily fail. However, even if this Court were to set aside petitioners procedural lapses, a careful review of the records of the case reveal that herein petition is without merit. At the crux of the controversy is a determination of whether or not respondents are incompetent to serve as executors of the will of Ferdinand Marcos. Ozeata v. Pecson[28] is instructive: The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of the estate. The curtailment of this right may be considered as a curtailment of the right to dispose. And as the rights granted by will take effect from the time of death (Article 777, Civil Code of the Philippines), the management of his estate by the administrator of his choice should be made as soon as practicable, when no reasonable objection to his assumption of the trust can be interposed any longer. It has been held that when a will has been admitted to probate, it is the duty of the court to issue letters testamentary to the person named as executor upon his application (23 C.J. 1023). x x x x

The case of In re Erlanger's Estate, 242 N.Y.S. 249, also reiterates the same principle. The courts have always respected the right to which a testator enjoys to determine who is most suitable to settle his testamentary affairs, and his solemn selection should not lightly be disregarded. After the admission of a will to probate, the courts will not name a better executor for the testator nor disqualify, by a judicial veto, the widow or friend or other person selected in the will, except upon strict proof of the statutory grounds of incompetency . Matter of Leland's Will, 219 N.Y. 387, 393, 114 N.E. 854. x x x[29] Section 1(c), Rule 78 of the Rules of Court defines who are incompetent to serve as executors, to wit: Section 1. Who are incompetent to serve as executors or administrators. No person is competent to serve as executor or administrator who: x x x x (c) Is in the opinion of the court unfit to execute the duties of trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude. (Emphasis Supplied) In the case at bar, petitioner anchored its opposition to the grant of letters testamentary to respondents, specifically on the following grounds: (1) want of integrity, and (2) conviction of an offense involving moral turpitude. Petitioner contends that respondents have been convicted of a number of cases [30] and, hence, should be characterized as one without integrity, or at the least, with questionable integrity.[31] The RTC, however, in its January 11, 1996 Order, made the following findings: However, except for petitioner Republics allegation of want of integrity on the part of Imelda Trinidad Romualdez-Marcos and Ferdinand Romualdez Marco II, named executors in the last will and testament, so as to render them incompetent to serve as executors, the Court sees at this time, no evidence on record, oral or documentary, to substantiate and support the said allegation . (Emphasis Supplied) Based on the foregoing, this Court stresses that an appellate court is disinclined to interfere with the action taken by the probate court in the matter of removal of an executor or administrator unless positive error or gross abuse of discretion is shown.[32] The Rules of Court gives the lower court the duty and discretion to determine whether in its opinion an individual is unfit to serve as an executor. The sufficiency of any ground for removal should thus be determined by the said court, whose sensibilities are, in the first place, affected by any act or omission on the part of the administrator not conformable to or in disregard of the rules of orders of the court. [33] Hence, in order to reverse the findings of the RTC, this Court must evaluate the evidence presented or alleged by petitioner in support of its petition for disqualification. However, after a painstaking review of the records and evidence on hand, this Court finds that the RTC committed no error or gross abuse of discretion when it ruled that petitioner failed to substantiate its allegation. Petitioner conveniently omits to state that the two cases against respondent Imelda Marcos have already been reversed by this Court. Her conviction in Criminal Case No. 17453 was reversed by this Court in Dans, Jr. v. People.[34] Likewise, her conviction in Criminal Case No. 17450 was reversed by this Court in Marcos v. Sandiganbayan.[35] Hence, the so-called convictions against respondent Imelda Marcos cannot serve as a ground for her disqualification to serve as an executor.

On the other hand, the eight cases filed against respondent Ferdinand Marcos II involve four charges for violation of Section 45 (failure to file income tax returns) and four charges for violation of Section 50 (non-payment of deficiency taxes) of the National Internal Revenue Code of 1977 (NIRC). It is a matter of record, that in CA-G.R. CR No. 18569,[36] the CA acquitted respondent Ferdinand Marcos II of all the four charges for violation of Section 50 and sustained his conviction for all the four charges for violation of Section 45. It, however, bears to stress, that the CA only ordered respondent Marcos II to pay a fine for his failure to file his income tax return. Moreover, and as admitted by petitioner, [37] said decision is still pending appeal. Therefore, since respondent Ferdinand Marcos II has appealed his conviction relating to four violations of Section 45 of the NIRC, the same should not serve as a basis to disqualify him to be appointed as an executor of the will of his father. More importantly, even assuming arguendo that his conviction is later on affirmed, the same is still insufficient to disqualify him as the failure to file an income tax return is not a crime involving mor al turpitude. In Villaber v. Commision on Elections,[38] this Court held: As to the meaning of "moral turpitude," we have consistently adopted the definition in Black's Law Dictionary as "an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals ." In In re Vinzon, the term "moral turpitude" is considered as encompassing "everything which is done contrary to justice, honesty, or good morals." x x x x We, however, clarified in Dela Torre vs. Commission on Elections that "not every criminal act involves moral turpitude," and that ''as to what crime involves moral turpitude is for the Supreme Court to determine."[39] Moreover, In De Jesus-Paras v. Vailoces:[40] Indeed, it is well-settled that "embezzlement, forgery, robbery, and swindling are crimes which denote moral turpitude and, as a general rule, all crimes of which fraud is an element are looked on as involving moral turpitude" (58 C.J.S., 1206). The failure to file an income tax return is not a cri me involving moral turpitude as the mere omission is already a violation regardless of the fraudulent intent or willfulness of the individual. This conclusion is supported by the provisions of the NIRC as well as previous Court decisions which show that with regard to the filing of an income tax return, the NIRC considers three distinct violations: (1) a false return, (2) a fraudulent return with intent to evade tax, and (3) failure to file a return. The same is illustrated in Section 51(b) of the NIRC which reads: (b) Assessment and payment of deficiency tax xxx In case a person fails to make and file a return or list at the time prescribed by law, or makes willfully or otherwise, false or fraudulent return or list x x x. (Emphasis Supplied)

Likewise, in Aznar v. Court of Tax Appeals,[41] this Court observed:

To our minds we can dispense with these controversial arguments on facts, although we do not deny that the findings of facts by the Court of Tax Appeals, supported as they are by very substantial evidence, carry great weight, by resorting to a proper interpretation of Section 332 of the NIRC. We believe that the proper and reasonable interpretation of said provision should be that in the three different cases of (1) false return, (2) fraudulent return with intent to evade tax, (3) failure to file a return , the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time within ten years after the discovery of the (1) falsity, (2) fraud, and (3) omission . Our stand that the law should be interpreted to mean a separation of the three different situations of false return, fraudulent return with intent to evade tax, and failure to file a return is strengthened immeasurably by the last portion of the provision which segregates the situations into three different classes, namely, "falsity," "fraud" and "omission."[42] (Emphasis Supplied)

Applying the foregoing considerations to the case at bar, the filing of a fraudulent return with intent to evade tax is a crime involving moral turpitude as it entails willfulness and fraudulent intent on the part of the individual. The same, however, cannot be said for failure to file a return where the mere omission already constitute s a violation. Thus, this Court holds that even if the conviction of respondent Marcos II is affirmed, the same not being a crime involving moral turpitude cannot serve as a ground for his disqualification. Anent the third error raised by petitioner, the same has no merit. Petitioner contends that respondents denied the existence of the will, and are, therefore, estopped from claiming to be the rightful executors thereof. Petitioner further claims that said actions clearly show that respondents lack the competence and integrity to serve as officers of the court. This Court does not agree with the posture taken by petitioner, and instead, accepts the explanation given by respondents, to wit: Respondents opposed the petition for probate not because they are disclaiming the existence of the will, but because of certain legal grounds, to wit: (a) petitioner does not have the requisite interest to institute it; (b) the original copy of the will was not attached to the petition for probate as required by the rules; and (c) the Commissioner of the Bureau of Internal Revenue is not qualified to be appointed as administrator of the estate.[43]

Based on the foregoing, considering the nature of their opposition, respondents cannot be held guilty of estoppel as they merely acted within their rights when they put in issue legal grounds in opposing the probate proceedings. More importantly, even if said grounds were later on overruled by the RTC, said court was still of opinion that respondents were fit to serve as executors notwithstanding their earlier opposition. Again, in the absence of palpable error or gross abuse of discretion, this Court will not interfere with the RTCs discretion. As for the remaining errors assigned by petitioner, the same are bereft of merit. Petitioner contends that respondents have strongly objected to the transfer to the Philippines of the Marcos assets deposited in the Swiss Banks[44] and thus the same should serve as a ground for their disqualification to act as executors. This Court does not agree. In the first place, the same are mere allegations which, without proof, deserve scant

consideration. Time and again, this Court has stressed that this Court is a court of law and not a court of public opinion. Moreover, petitioner had already raised the same argument in its motion for partial reconsideration before the RTC. Said court, however, still did not find the same as a sufficient ground to disqualify respondents. Again, in the absence of palpable error or gross abuse of discretion, this Court will not interfer e with the RTCs discretion. Lastly, petitioner argues that the assailed RTC Orders were based solely on their own evidence and that respondents offered no evidence to show that they were qualified to serve as executors. [45] It is basic that one who alleges a fact has the burden of proving it and a mere allegation is not evidence. [46] Consequently, it was the burden of petitioner (not respondents) to substantiate the grounds upon which it claims that respondents should be disqualified to serve as executors, and having failed in doing so, its petition must necessarily fail. WHEREFORE, premises considered, the March 13, 1997 Decision and August 27, 1997 Resolution of the Court of Appeals in CA-G.R. SP No. 43450 are herebyAFFIRMED. The Regional Trial Court of Pasig City, Branch 156, acting as a probate court in Special Proceeding No. 10279, is hereby ORDERED to issue letters testamentary, insolidum, to Imelda Romualdez-Marcos and Ferdinand Marcos II. SO ORDERED.

4. [No. L-6303. June 30, 1954] In the matter of the last will and testament of JOSE VAO, deceased. TEODORO VAO, petitioner and appellant, vs. PAZ VAO VDA. DE GARCES, ET AL., oppositors and appellees. 1.WILLS, PROBATE OF; ISSUE IN CONTESTED WILLS; RULE IN THIS JURISDICTION ISSUE IS FlXED BY RULES OF COURT; ISSUE MAY NOT BE VARIED BY PLEADINGS.The rule in this jurisdiction is that the issue in contested wills is fixed by the Rules of Court, that is, before the probate court can allow the will it must be satisfied upon proof taken and filed, that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and undue influence, or fraud. This issue may not be varied by the pleadings. 2.ID.; ID.; EVIDENCE; OPPOSITOR MAY ADD OTHER GROUNDS AND SUBMIT EVIDENCE IN SUPPORT THEREOF. An oppositor objecting to the probate of a will on one or two specific grounds may, during the hearing, add other grounds and submit evidence in support of the same. 3.ID.; ID.; ID.; SERVICE OF OPPOSITION TO ALL PERSONS INTERESTED, PURPOSE OF. The purpose of the law (section 10, Rule 77 of the Rules of Court requiring a person contesting probate to state his ground of opposition and serve copy thereof to the petitioner and other residents of the province interested in the estate, is to appraise said persons of the reasons in opposing probate so that they may prepare the necessary evidence to counteract and disprove said grounds of opposition, this, in addition to apprising the court itself of the issue involved in the proceeding so that it may intelligently direct the presentation of evidence during the hearing. 4.ID. ; ID. ; ID. ; FACTORS TO BE CONSIDERED IN DETERMINING GENNUINENESS OF SIGNATURE OF TESTATOR. When the genuineness of the testator's signature is put in issue, his age, infirmity and state of health should be given due consideration. Where the testator, at the time the contested will was made, was 78 years old and suffering from apparently advanced pulmonary tuberculosis and rheumatism, it is natural that his signature should lack the firmness, rhythm, effort and continuity of motion that it had before he became quite ill and infirm.

5.ID.; ID.; ID.; CREDIBILITY OF WITNESSES.Where the three subscribing witnesses to the will who were in no way related to the testator, had no interest in the execution of the will and stood to gain nothing by its probate, under oath assured the court that the testator voluntarily signed the will, their disinterested testimony can not be taken lightly. [Vao vs. Vda. de Garces, et al, 95 Phil. 333(1954)]

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6303 June 30, 1954

In the matter of the last will and testament of JOSE VAO, deceased. TEODORO VAO, petitionerappellant, vs. PAZ VAO VDA. DE GARCES, et al., oppositors-appellees. Pedro R. Luspo, Vicente L. Faelnar and Roque R. Luspo for appellant. Pelaez, Pelaez and Pelaez and Ramon Duterte for appellees. MONTEMAYOR, J.: This is an appeal by petitioner Teodoro Vao from a decision of the Court of First Instance of Cebu denying probate of the document (Exhibit "A"), said to be the LAST WILL AND TESTAMENT OF JOSE VAO. The appeal was first taken to the Court of Appeals where the record on appeal and the briefs of petitioner and oppositors were filed. Subsequently, however, on joint motion of both parties requesting that the appeal be elevated to the Supreme Court on the ground that the value of the properties involved as shown by the inventory was more than P50,000, the case was forwarded to this Tribunal where memoranda were filed in lieu of oral argument. Jose Vao died on January 28, 1950, in the City of Cebu. According to the certificate of the City Health Officer and Local Civil Registrar, Exhibit "C", he was 78 years old and he die of P. T. B. (pulmonary tuberculosis). He left properties valued at P95,913.05 as per inventory of the administrator but which according to the evidence are worth much more. On February 11, 1950, Teodoro Ceblero Vao petitioned the Court of First Instance of Cebu to have a document supposed to be the last will and testament of Jose Vao, and which he attached to his petition, probated. We reproduce said document LAST WILL AND TESTAMENT IN THE NAME OF THE FATHER, THE SON AND THE HOLY GHOST, AMEN: I, Jose Vao, single, Filipino citizen, of legal age and resident of Cebu City, being of sound and disposing mind and memory, do hereby make, execute and publish, this my Last Will and Testament in English, which language is known to me, and which I talk, read and understand, hereby revoking and cancelling any and all testamentary provisions heretofore made by me, and the following shall be my Last Will: 1. I hereby make known to the world that Teodoro Ceblero Vao is my son. 2. That I hereby bequeath to aforesaid Teodoro Ceblero Vao all my properties.

In witness whereof, I have hereunto affixed my name at the City of Cebu, Philippines this 11th day of December, 1949. (Sgd.) Jose Vao Testator We, the undersigned attesting witnesses, whose residences are stated opposite our respective names, do hereby certify that the testator whose name is signed hereinabove, has published unto us the foregoing WILL consisting of one page, as his Last Will and Testament, and has signed the same in our presence, and in witness whereof we have each signed the same in the presence of said testator and in the presence of each other. Cebu City, Philippines, this 11th day of December, 1949. Pedro C. Ceniza 494-B. Junquera, Cebu City O. Rama, M. D. Basak, Sn. Nicolas, Cebu City Nazario R. Paquiao 553 A. P. del Rosario, St., Cebu City Teodoro asked that he be appointed administrator of the estate and that pending his appointment as regular administrator, he be designated special administrator. On March 24, 1950, Paz Vao Vda. de Garces and the supposed heirs of Jesus Vao, brother of Jose Vao, filed the following opposition OPPOSITION Comes now Paz Vao Vda. de Garces, and the heirs of Jesus Vao, thru their undersigned attorneys, and to this Honorable Court respectfully states: 1. That the oppositor Paz Vao Vda. de Garces is the sister of the deceased Jose Vao, and Filomena Vao, Felicidad Vano, Angel Vao, Salvador Vao, Norberto Vao, Teodorico Vao, and Ireneo Vao, are the children and heirs of Jesus (brother of Jose Vao), and all of them are entitled to participate in the said Estate of the deceased Jose Vao in case of intestacy; 2. That the instrument now offered for probate as will of the deceased Jose Vao was procured by undue and improper pressure and influence on the part of Teodoro Ceblero who is not an acknowledged natural child of the deceased Jose Vao; 3. That the said Jose Vao was mentally incapable to make a will on December 11th, 1949; 4. 4. That the signature of the testator Jose Vao was procured by fraud and trick on the part of Teodoro Ceblero and the said deceased Jose Vao never intended that the said document should be his will at the time of fixing his signature thereto; 5. That the instrument now offered for probate as will of the deceased Jose Vao is written in English language which is not the usual and proper language of the deceased, and if the deceased would have had made any will he should have it written in Spanish; 6. That the said deceased Jose Vao never recognized Teodoro Ceblero as his acknowledged natural child, the same being a mere protege of the deceased, and not an adopted or acknowledged natural child;

7. That the deceased Jose Vao had time and again told his sister and nephews that he will not execute a will because he wants to leave all his estate in favor of his brother and sister, and nephews; 8. That Dolores Garces de Falcon, a niece of the deceased Jose Vao, being the nearest of kin, is a competent person to act as Administratrix of the estate of the deceased, and she is willing to serve as such; PRAYER For all the foregoing considerations, we respectfully pray this Honorable Court that the said will of the deceased Jose Vao be declared null and void, and that it be not admitted to probate; That an administratrix of the said estate be appointed who shall distribute the same among the legal heirs of the deceased; That Dolores Garces de Falcon be appointed as Administratrix of the Estate of the deceased Jose Vao. Cebu City, Philippines, March 23, 1950. On August 29, 1950, Ireneo Vao one of the persons included in the opposition, filed a motion of the following tenor. MOTION Comes now Ireneo Vao and to this Honorable Court respectfully stated: 1. That he is the son and only heir of Jesus Vao, now deceased. 2. That his father Jesus Vao is a brother of Jose Vao, also deceased. 3. That in this case a petition has been presented for the probate of the last will and testament of Jose Vao. 4. That an opposition has been filed against the probate of said will. 5. That he is named as one of the oppositors, without his knowledge and consent. 6. That he does not oppose nor intends to oppose the probate of the will in question, because that document contains a true expression of the wish and desire of Jose Vao as to who shall inherit his property. 7. That he has not authorized anybody to file an opposition in his name. PRAYER Wherefore, the undersigned respectfully prays his Honorable Court to cancel his name from the list of oppositors mentioned in the opposition to the petition filed by Teodoro Vao. Tagbilaran, Bohol (for the City of Cebu), August 8, 1950 Said motion of Ireneo Vao was granted by the Court. In the course of the hearing, he was presented as one of the witnesses for petitioner Teodoro and he declared that he was the son of Jesus Vao, already dead; that he knew Filomena Falcon, Felicidad Calibo, Angle Falcon, Salvador Flores, Norberto Calibo, and Teodorico Falcon, who are sometimes known by the surname Vao but that they were not related to him because he had no

brothers or sisters; that his father Jesus Vao was a younger brother of the testator Jose Vao; that petitioner Teodoro Vao was the cousin, son of Jose Vao, and that he knew of the blood relationship between the testator and Teodoro Vao because he (Ireneo) since childhood used to go to his uncle's house where Teodoro lived and he saw that Teodoro was treated as a son by Jose Vao, who paid for Teodoro's board at the Colegio del Nio where the two of them were students; that he (Ireneo) never authorized anyone to include him as oppositor to the probate of the will of Jose Vao and that he did not oppose its probate. The three attesting witnesses Pedro Ceniza, Dr. Osmundo Rama and Atty. Nazario Pacquiao testified for the petitioner and assured the court that Exhibit "A" was the last will and testament of the late Jose Vao; that he signed Exhibit "A" in their presence, and that each of them signed the same after him in his presence and in the presence of each other; that at the time of the execution of the document in the afternoon of December 11, 1949, the testator was of sound and disposing mind and memory and that it was his voluntary act, no pressure or influence having been exerted on him; that the blank space after the letter "I" in the first paragraph of Exhibit "A" was filled out by the testator himself although they (witnesses) differ as to who filled out the blank spaces on the document where the words "11th" and "December" appear. Atty. Pacquiao told the court that it was he who prepared the will (Exhibit A) pursuant to the wishes of the testator. For the opposition Ciriaca Alse who formerly worked as a servant in the household of Teodoro Vao, Dolores Garces de Falcon, a daughter of Paz Vao Vda. de Garces and Carmen Vallore testified. The burden of their testimony is that from November 1949, Jose Vao was already very sick; that in December he was in serious if not critical condition; that he was always in bed, oftentimes unable to move or open his eyes and he could not maintain any conversation with anyone; that he had to be fed by someone; and that he was bed-ridden and already had bed-sores. The idea sought to be conveyed by them was that the testator was in no condition to execute a will. Mr. Edgar Bond, an examiner of questioned documents and chief of the Questioned Documents and Ballistics Division of the National Bureau of Investigation was also presented by the opposition as a handwriting expert and he told the court that after examining the supposed signature of Jose Vao on Exhibit "A" and comparing them with his accepted standard signatures, he was convinced that the signatures on Exhibit "A" were forgeries. His testimony was vigorously objected to by counsel for the petitioner on the ground that the genuineness of the signature of the testator on Exhibit "A" was never placed in issue because the written opposition of the opponents virtually admitted said genuineness and merely claimed that the will was not the testator's voluntary act because said signature was obtained thru trickery and that undue pressure and influence were brought to bear upon him. To counteract the testimony of Bond, the deposition of Dr. Paul Rodriguez Versoza, another handwriting expert was taken and introduced in evidence. Dr. Versoza claims that after examining the signatures of Jose Vao on Exhibit "A" and comparing them with accepted standard signatures of the testator, he was convinced that the signatures on Exhibit "A" were genuine and that any difference noted between them were due to the age, weakness, and illness of the testator, especially the fact that he was suffering from rheumatism. After hearing, the learned trial court noting discrepancies in the testimonies of the three attesting witnesses as to the due execution of Exhibit "A", and accepting the expert testimony of Mr. Bond over that of Dr. Versoza, came to the conclusion that the supposed signatures of Jose Vao on Exhibit "A" are not genuine but imitated and held that Exhibit "A" was not the last will and testament of Jose Vao. One of the errors assigned by petitioner-appellant is that the trial court erred in permitting appellees over the objection of appellant to present evidence which are contrary to their allegations in their opposition. It is his contention that the opponents not only failed to allege as a basis of their opposition that the signatures of the testator on the supposed will were forged but that on the contrary, they impliedly admitted the genuineness of said signatures, merely claiming that said signatures were obtained through trickery and fraud and under pressure and influence. This point brings us to a discussion of what evidence an opponent to a probate of a will may be permitted to present at the hearing whether or not he is limited to presenting evidence to sustain the particular objection or ground on which he bases his opposition to the probate. In some jurisdictions in the United States the rule is that the issue in contested wills is made up by the pleadings or framed from the same, and no evidence can be introduced except in support of allegations contained in such

pleadings. For instance, if the only opposition to the probate of a will is lack of mental capacity of the testator, then the oppositor in presenting evidence will be confined to that point. In other jurisdictions, however, it is said that the issue is fixed by the statute and is practically the old common law issue "devisavit vel non," is the instrument presented for probate the last will and testament of the testator?; that said issue may not be varied by the pleadings and that every ground of attack on the validity of the will may be employed. As the law in our jurisdiction on the probate of wills now stands, we are inclined to adopt the second view, namely, that the law itself fixes or determines the issue, because under section 12, Rule 77, of the Rules of Court, before the probate court can allow the will it must be satisfied upon proof taken and filed that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and undue influence, or fraud. Also, under section 9 of the same rule, a will may be disallowed ( a) if not executed and attested as required by law; (b) if the testator was mentally incapable of making a will; ( c) if it was executed under duress, or the influence of fear, or threats; ( d) if it was procured by undue and improper pressure and influence on the part of the beneficiary; and (e) if the signature of the testator was procured by fraud and trick. The oppositors in the present case therefore were not precluded from attacking the will on the ground of forgery despite the fact that their opposition was confined to grounds (b), (c) and (d) of section 12, Rule 77 as stated above. On the other hand, section 10 of the same rule 77 provides that "anyone appearing to contest the will must file a writing stating his grounds for opposing its allowance; and serve a copy thereof on the petitioner and other residents of the province interested in the estate." The purpose of this legal provision is clear, and it is to apprise the person or persons seeking the probate of will, as well as any other person interested in the estate, of the reasons in opposing probate so that they may prepare the necessary evidence to counteract and disprove said ground of opposition, this, in addition to apprising the court itself of the issue involved in the proceedings so that it may intelligently direct the presentation of evidence during the hearing. Of course, as we have already stated, an oppositor objecting to the probate of the will on one or two specific grounds may, during the hearing add to the grounds and submit evidence in support of the same, but when this happen as it did in the present case, one is more or less justified in inferring that the oppositors were not sure of their ground; that they were in doubt as to the basis of their opposition, a fact which naturally and not inconsiderably weakens their stand. One of the grounds of their opposition was that the signature of the testator was procured by fraud and trick, thereby leading one to believe, including the court and the petitioner that said signature was genuine but was not valid. At the hearing, said oppositors completely changed their stand and claimed that the signature was actually forged. As we have already said, that conduct and attitude, changeable and uncertain, does not strengthen their position. Let us now go to the evidence on the alleged forgery of the signatures of the testator Jose Vao. We have carefully read the testimony of Mr. Bond for the oppositors and the deposition of Dr. Verzosa for the petitioner. There is no reason for doubting the qualifications, sincerity, and honesty of these two witnesses. Their opinions seem to be plausible, arrived at after an analysis and comparison of the questioned signatures with the standard and accepted signatures of the testator; but we fear that the infirmity, age, and state of health of the testator had not been given due consideration by the witness of the opponents and by the court. There is no question that there are differences and discrepancies between the two signatures reading "Jose Vao" on Exhibit "A" and the genuine, accepted signatures of the testator even as late as the last part of the year 1949. But we should not forget that on December 11th of the same year when he executed Exhibit "A", he was suffering from apparently advanced pulmonary tuberculosis as well as rheumatism which according to Dr. Osmundo Rama who had been treating him until the day he died, affected his joints. The testator was then 78 years old, lying in bed most of the time, so much so that he developed bed-sores, sitting up in bed only once in a while, and at those times, his hands trembled. It is natural that his signatures on Exhibit "A" should lack the firmness, rhythm, lack of effort and continuity of motion that they had before he became quite ill and infirm. Examining the signatures on Exhibit "A", the original of the will, and those on "3-A", a carbon copy thereof, it will be readily observed that while the signatures on the original are already infirm, rough and jagged, suggesting a hand infirm and trembling, those on the duplicate (Exhibit "3-A") are still more so, showing the effects of the concentration of attention, exertion and effort of the testator in reading and singing the original. But there are other and equally important considerations which favor the conclusion that Exhibit "A" was duly signed written opposition the opponents did not question but on the contrary, assumed if not conceded the

genuineness of the signatures of the testator. Then at the hearing, they changed their attitude and for the first time put in issue the genuineness of said signatures; this despite the fact that the original of the will (Exhibit "A") was filed in court on February 11, 1950, and the opposition was filed on March 24th of the same year. In other words the opponents and their lawyers had almost one and a half months within which to examine and scrutinize the signatures on Exhibit "A", after which examination they did not doubt their genuineness. Again, the opponents include Ireneo Vao, a son of Jesus Vao, brother of the testator, among the oppositors. This same Ireneo later filed a motion in court repudiating the action taken by the opponents, saying that he was include among the oppositors without his knowledged or consent; that far from opposing the probate of the will of his uncle, he believed that said will was a true expression of the wish and desire of the testator. Not only this, but he testified for the petitioner and said that the petitioner Teodoro Vao was the son of the testator and had been treated by him as such since childhood. The learned trial court lays emphasis on the uncertainty of the three subscribing witnesses as to who filled out the blank spaces on the will now occupied by the words "11th" and "December", while they are sure that the name Jose Vao on the space at the beginning of the first paragraph was written by the testator himself. Said uncertainty on the part of the said three subscribing witnesses instead of affecting their veracity, in our opinion, strengthens it, because it refers to minor detail and shows that they had not been rehearsed but on the contrary, testified to what they remember. In this connection, there is every reason to believe that the fact that the space for the name Jose Vao on Exhibit "A" was left in blank to be filled out later by the testator himself argues against the theory of forgery, because if there had been forgery by leaving the blank space for the name of the testator to be filled out later, including the space for the date and the month, the forgers would be laying themselves open and unnecessarily creating an additional opportunity for the opponents and for the to detect the forgery. After all, there was neither necessity nor occasion for forging the signatures of the testator in the will because there is every reason to believe that said testator would leave all his property to petitioner Teodoro Vao. The evidence shows that Teodoro was a natural son of the testator. From childhood he had been raised by Jose Vao, treated like a son, and sent to school, and even after Teodoro had married, he and his wife and family continued to live with the old man, or rather, the old man lived with them. Jose Vao in 1945, in a public instrument entitled "Special Power of Attorney" (Exhibit "E") referred to Teodoro Vao as his son and appointed him as his attorney-in-fact to leave to the United States of America any, some or all real properties owned by him in the City of Cebu, under such terms and conditions which Teodoro may deem just and reasonable, and to execute and sign the corresponding deeds of lease, and to collect and receive the rents. This was accepted and acted by Teodoro Vao. In 1946 and 1947 the testator appointed Teodoro his attorney-in-fact giving him a power of attorney with extensive powers such as to lease to the Republic of the Philippines some of his real personal properties in the City of Cebu, and to collect and receive the rentals accruing from the leased properties; to ask, demand, sue form recover, and collect any and all sums of money, debts, dues, accounts, legacies, bequests, interests, dividends, etc. which thereafter become due or owing to him and to make, sign, execute, and deliver contracts, documents, agreements, and other writings of whatever nature with any and all third persons upon terms and conditions acceptable to him (Teodoro), Exhibits "F" and "G". In 1946 while the testator was in Bohol, he wrote to Teodoro a note (Exhibit "I") addressing him as his "dear son" and with the complimentary clause "your loving Dad", signing the same, asking Teodoro to send P5,000 to him. It seems that at least in Cebu and Bohol petitioner Teodoro Vao was known by everyone to be the son of Jose Vao because the latter had treated and accepted, even recognized him as such, and shortly before his death, entrusted him with the complete management of his business. One of the witness for the opposition, Carmen Vallore, cousin-in-law of the testator, in her testimony called Milagros Vao, wife of Teodoro Vao, as the daughter-in-law of Jose Vao, meaning that Teodoro was the son of the testator. During the hearing and while Teodoro Vao was testifying, counsel for the oppositors repeatedly reffered to the testator as his (Teodoro's) father. Under all these circumstances, is it any wonder that Jose Vao should voluntarily by means of a will, leave all his properties to his only son, though natural? It is not improbable that one of the reasons prompting the filling of the opposition to the petition for probate was that Paz Vao Vda. de Garces, sister of the testator, could not understand why her brother, a wealthy man should leave all his wealth to a mere natural son (Teodoro) and leave nothing to her; but it was not altogether strange because it seems that the relations between Paz and the testator, were rather strained and in 1949, according to

the evidence, Paz had brought a civil action against Jose Vao and Irineo Vao, the nephew of Jose Vao who refused to oppose the probate of the will. And during the last and prolonged illness of the testator, Paz living in the same city of Cebu, did not even once visit her ailing and bed-ridden brother. The three subscribing witnesses to the will, under oath assured the court that Jose Vao voluntarily signed Exhibit "A", and these three witnesses were in no way related to Teodoro or to the testator, had no interest in the execution of the will and stood to gain nothing by its probate. Pedro Ceniza is a responsible businessman, Dr. Osmundo Rama, is a practising physician and Atty. Nazario Pacquio, is a member of the bar and at the time he prepared Exhibit "A", he was Assistant Provincial Fiscal of Cebu. Their disinterested testimony cannot be taken lightly. On this question of the weight to be given to the testimony of subscribing witnesses, we held in the case of Roxas vs. Roxas, et al., 48 Off. Gaz. (6) 2177; 87 Phil. 692, that We do not venture to impute bias to the experts introduced during the trial but we hasten to state that the positive testimony of the three attesting witnesses ought to prevail over the expert opinions which cannot be mathematically precise but which, on the contrary are "subject to inherent infirmities." The law impliedly recognizes the almost conclusive weight of the testimony of attesting witnesses when it provides that "if the will is contested, all the subscribing witnesses present in the Philippines and not insane, must be produced and examined, and the death, absence or insanity of any one of them must be satisfactorily shown to the Court." (Section 11, Rule 77 Rules of Court.) In the present case, the opinions of the two handwriting experts presented by the parties are conflicting and even assuming that there is doubt to our mind as to which of the two is to be accepted, the positive and clear testimony of the three subscribing witnesses should prevail. In the case of In re Will of Medina, 60 Phil., 391, this Court said: In the present case, two of the subscribing witnesses are lawyers. This fact together with the circumstance that they were not shown to have any interest in the subject of the litigation, lead the trial court to consider their testimony as worthy of credit. The intervention of professional men specially lawyers, in the preparation and execution of wills, has been given by this Court the consideration deserved. Reiterating the doctrine laid down in the case of Sotelo vs. Luzan, 59 Phil., 908, we further held in the same case: In one case it was said: "It is hardly conceivable that any attorney of any standing would risk his professional reputation by falsifying a will and then go before a court and give false testimony." There is no reason to believe that Atty. Pacquio who, at the time was not only a member of the bar but was an assistant provincial fiscal, should commit forgery by drafting Exhibit "A" and take part in forging the signature of the testator and later falsely testify in court on the due execution of said will and subject himself not only to criminal prosecution and dismissal from his post as assistant provincial fiscal, but also to disbarment proceedings. In view of the foregoing, the decision appealed from his reversed and Exhibit "A" is hereby allowed probate as the Last Will and Testament of Jose Vao, with costs against appellees.

5 G.R. No. 138696. July 7, 2010.* FELIZARDO S. OBANDO AND JUAN S. OBANDO, petitioners, vs. PEOPLE OF THE PHILIPPINES, respondent.

Remedial Law; Appeals; When the trial courts findings have been affirmed by the appellate court, said findings are generally binding upon the Court; Exceptions.The rule is that the findings of fact of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings, are accorded high respect if not conclusive effect. This is more true if such findings were affirmed by the appellate court. When the trial courts findings have been affirmed b y the appellate court, said findings are generally binding upon this Court unless when that determination is clearly without evidentiary support on record, or when the judgment is based on misapprehension of facts or overlooked certain relevant facts which, if properly considered, would justify a different conclusion, which we do not find in this case. Criminal Law; Evidence; Expert Witnesses; Expert opinions are not ordinarily conclusive; When faced with conflicting expert opinions, courts give more weight and credence to that which is more complete, thorough, and scientific.Expert opinions are not ordinarily conclusive. They are generally regarded as purely advisory in character. The courts may place whatever weight they choose upon and may reject them, if they find them inconsistent with the facts in the case or otherwise unreasonable. When faced with conflicting expert opinions, as in this case, courts give more weight and credence to that which is more complete, thorough, and scientific. The value of the opinion of a handwriting expert depends not upon his mere statements of whether a writing is genuine or false, but upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing which would ordinarily escape notice or detection from an unpracticed observer. Same; Falsification of Public Documents; Elements of the Crime of Falsification of Public Documents under Article 172 (1) of the Revised Penal Code.We find the elements of falsification of public document present in this case. Essentially, the elements of the crime of Falsification of Public Document under Article 172 (1) of the Revised Penal Code (RPC) are: (1) that the offender is a private individual; (2) that the offender committed any of the acts of falsification enumerated under Article 171; and (3) that the act of falsification is committed in a public document. Under paragraph 2 of Article 171, a person may commit falsification of a public document by causing it to appear in a document that a person or persons participated in an act or proceeding, when such person or persons did not, in fact, so participate in the act or proceeding. Same; Estafa; Elements of Estafa under Article 315, par. 1 (b) of the Revised Penal Code.The crime of falsification of public document was the means for petitioners to commit estafa. The elements of estafa under Article 315, par. 1 (b) of the RPC are as follows: (1) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same; (2) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; and (3) that such misappropriation or conversion or denial is to the prejudice of another. Same; Estafa through Falsification of Public Documents; Being a complex crime, the penalty for the most serious crime shall be imposed in its maximum period.The crime committed was estafa through falsification of public document. Being a complex crime, the penalty for the most serious crime shall be imposed in its maximum period. While we sustain the conviction of petitioners of the crime charged, we found, however, that the penalty imposed by the trial court and affirmed by the Court of Appeals was not proper. [Obando vs. People, 624 SCRA 299(2010)]

Republic of the Philippines Supreme Court Manila

SECOND DIVISION

FELIZARDO S. OBANDO and JUAN S. OBANDO, Petitioners,

G.R. No. 138696

Present:

CARPIO, J., Chairperson, -versusNACHURA, PERALTA, ABAD, and MENDOZA, JJ.

PEOPLE OF THE PHILIPPINES, Respondent.

Promulgated:

July 7, 2010 x-----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioners Felizardo and Juan Obando seeking to annul and [1] [2] set aside the Decision dated August 13, 1998 and the Resolution dated May 17, 1999 of the Court of Appeals (CA) in CAG.R. CR No. 20187.

The antecedent facts are as follows:

Sometime in 1964, Alegria Strebel Vda. de Figueras (Alegria), together with Eduardo and Francisco Figueras, sons of her husband Jose Figueras by previous marriage, filed a petition for the intestate proceedings of the estate of Jose

Figueras, docketed as Special Proceedings No. 61567. Alegria was named administratrix of Joses estate without opposition from her stepsons.

While the settlement of Joses estate was still pending considerations in the Regional Trial Court (RTC), Alegria died in May 1979. Eduardo was issued new Letters of Adminis tration with the duty to administer both Joses and Alegrias estates. Fritz Strebel, as brother of Alegria, came forth claiming part of Alegrias estate as Alegria died without issue whi ch the Figueras brothers made no opposition.

Subsequently, the Figueras brothers and Fritz Strebel were served with copies of a Petition for Probate of the alleged last will and testament of Alegria filed by petitioner Felizardo Obando, which petition was docketed as Special Proceeding No. 123948. In his petition, petitioner Felizardo asked to be named as executor of Alegrias last will and testament, which bequeathed Alegrias rights and interest in the real properties left by the Figueras couple, as well as personal properties, including all her pieces of jewelry to petitioners Felizardo and Juan, and their families. The Figueras brothers opposed the probate of the alleged will, as well as petitioner Felizardos prayer for the issuance of a letter of administration, on the ground that the alleged will was done either under duress or the same was a forgery.

Later, both Special Proceeding Nos. 61567 and 123948 were consolidated under Branch 17 of the RTC of Manila which, after hearing, denied petitioner Felizardos prayer to be named as executor. Petitioner Felizardo appe aled the matter to the CA which partially reversed the RTC by appointing Eduardo and petitioner Felizardo as co-administrators of the joint estates of Jose and Alegria Figueras.

Eduardo and Fritz still opposed the probate of the alleged Alegrias will, i nsisting that the will was a forgery. Subsequently, these conflicting parties agreed to submit the alleged will to the National Bureau of Investigation (NBI) for [3] examination and comparison with the common standard signatures of Alegria.

After the examination and comparison of the submitted documents, NBI Document Examiner Zenaida Torres [4] submitted her report dated March 26, 1990, with the findings that the questioned and standard sample signatures of Alegria S. Vda. de Figueras were NOT written by one and same person.

By reason of the forged will which was the basis of the CA in appointing Felizardo as co-administrator of the Figueras estates, petitioners had taken possession of the pieces of jewelry, furniture and other personal properties enumerated in the alleged will, as well as the rentals of the Figueras residence in Gilmore Street, Quezon City being leased to the Community of Learners.

Eduardo and Fritz questioned these acts of petitioner Felizardo and, since the latter could not account for these properties which were under his possession when the probate court required him to do so, they sued him for Estafa thru Falsification of Public Document since the alleged will which petitioner Felizardo submitted for probate was found to be forged.

On July 26, 1990, an Information was filed with the RTC of Manila, charging petitioners Felizardo S. Obando and Juan S. Obando, together with the persons who signed in the alleged will, namely, Cipriano C. Farrales, Mercedes B. Santos, Victorino Cruz, and Franklin A. Cordon, with the crime of estafa thru falsification of public document, committed as follows: That on or about November 11, 1978, and for sometime prior or subsequent thereto, in the City of Manila, Philippines, the said accused Felizardo S. Obando, Juan S. Obando, Mercedes B. Santos, [Victorino] Cruz and Franklin A. Cordon, being then private individuals, and accused Cipriano C. Farrales, a Notary Public, conspiring and confederating together and helping one another, did then and there willfully, unlawfully and feloniously defraud Eduardo F. Figueras thru falsification of public document in the following manner, to wit: the said accused forged and falsified or caused to be forged and falsified, a document denominated as the Last Will and Testament of Alegria Strebel Vda. de Figueras, dated November 11, 1978, duly notarized by accused Cipriano C. Farrales and, therefore, a public document, by stating in said Last Will and Testament, among others, that the said Alegria Strebel Vda. de Figueras had bequeathed to her nephews, herein accused Felizardo S. Obando and Juan S. Obando, all her rights and interests over all her jewelries (sic), except those given to her other relatives, with an aggregate total value of P2,000,000.00, that she had appointed accused Felizardo S. Obando as the sole executor of her Last Will and Testament and the exclusive administrator of her estate, and thereafter, feigning, simulating and counterfeiting or causing to be feigned, simulated and counterfeited the signature of the said Alegria Strebel Vda. de Figueras appearing on the left hand margin of pages 1 and 2 and over the typewritten name Alegria Strebel Vda. de Figueras on page 3 of said document, thus making it appear, as it did appear, that the said Alegria Strebel Vda. de Figueras had, in fact, bequeathed all her rights and interests over the said jewelries (sic) to accused Felizardo S. Obando and Juan S. Obando, and that she had appointed the said Felizardo S. Obando as the sole executor of her Last Will and Testament and the exclusive Administrator of her estate, and causing it to appear further that the said Alegria Strebel Vda. de Figueras participated and intervened in the signing of said document when in truth and in fact as the said accused well knew, such was not the case in that the said Last Will and Testament is an outright forgery; that the late Alegria Strebel Vda. de Figueras did not bequeath all her rights or interests over the aforementioned jewelries to accused Felizardo S. Obando and Juan S. Obando, that she did not appoint accused Felizardo S. Obando as the sole executor of her Last Will and Testament and the exclusive Administrator of her estate, and that she did not participate and intervene in the signing of said document, much less did she authorize the said accused, or anybody else, to sign her name or affix her signature thereon; that once the said document has been forged and falsified in the manner above set forth, the said accused Felizardo S. Obando and Juan S. Obando presented the same for probate with the Regional Trial Court of Manila wherein an ensuing litigation which ultimately reached the Court of Appeals, said accused Felizardo S. Obando was appointed co-administrator of said Eduardo F. Figueras, and who, as such co-administrator, forthwith took possession of the jewelries mentioned above which the said accused subsequently, with intent to defraud, misappropriated, misapplied and converted to their own personal use and benefit to the damage and prejudice of the said Eduardo F. Figueras in the aforesaid amount of P2,000,000.00, Philippine currency.

Contrary to law.

[5]

Notary Public Farrales asked for a re-investigation claiming innocence and good faith and was, subsequently, deleted from the Information.

When arraigned, all the accused, with the exception of Franklin Cordon who is at-large, assisted by counsel de parte, pleaded not guilty to the charge. They posted bail for their temporary liberty.

Trial thereafter ensued.

In its Order dated October 10, 1992, the RTC stated that the parties stipulated that whatever testimony of witnesses utilized in the intestate and probate proceedings of the will, as well as the documentary evidence submitted therein, shall be utilized in the criminal case in toto subject to further cross of the defense lawyer only on matters not [6] touched in the former proceedings.

On October 7, 1996, the RTC rendered its Decision, the dispositive portion of which reads, thus:

[7]

WHEREFORE, PREMISES CONSIDERED, this Court holds accused FELIZARDO S. OBANDO and JUAN S. OBANDO GUILTY of violating Article 315, paragraph 1, sub-paragraph (b) of the Revised Penal Code, in relation to Article 172, paragraph 1, Revised Penal Code, their culpability having been proven beyond reasonable doubt and are hereby sentenced to suffer the penalty of reclusion temporal in its maximum period, from seventeen (17) years, four (4) months, and one (1) day to twenty (20) years. Finding no evidence of culpability in their persons, accused MERCEDES B. SANTOS and VICTORINO CRUZ are hereby ACQUITTED.

With respect to accused FRANKLIN A. CORDON, who remains at-large up to the present, this case against him is hereby ordered ARCHIVED, to be revived upon his apprehension. Let an Alias Warrant of Arrest be issued against accused Franklin A. Cordon for his immediate apprehension.

SO ORDERED.

[8]

In so ruling, the RTC found that: the fact of damage was sufficiently established with the testimonies of Felizardo and Juan that Alegria's rights and interests in the real and personal properties of the Figueras couple were to go to them, and that they already gave the pieces of jewelry to their sister, to Juan's wife and his two daughters, and Felizardo's daughter which showed that they had already profited from the estate of the Figueras couple even before the same was brought to the court for settlement. As to the matter of forgery, the RTC gave more credence to the findings of NBI Document Examiner Zenaida Torres than that of PNP Document Section Chief Francisco Cruz, since (1) Torres was the common choice of all the parties, thus by which act, petitioners became bound to the results of said findings; (2) Torres was definite in her conclusion that the question and standard/ sample signatures of Alegria S. Vda. de Figueras were not written by one and

same person unlike Cruz's report stating that no definite conclusion can be made due to the limited amount of appropriate standard signatures for comparison; and (3) Torres was not paid for her services and, therefore, impartial while Cruz received honorarium from Juan Obando; that while petitioners presented copies of pictures showing Alegria allegedly signing the will in the presence of Mercedes Santos Cruz, Victorino Cruz and Franklin Cordon, nothing would establish what document was being held by them.

The RTC found petitioners to have conspired to commit forgery as established by the following evidence, to wit: (a) Felizardo admitted that the last will and testament which Alegria voiced out to him was dictated by him to a certain Atty. Alcantara; (b) that Felizardo retained the services of Atty. Alcantara and Atty. Farrales who notarized the alleged will; (c ) Juan was the one who enticed Mercedes Santos Cruz, his sister-in-law, and Victorino Cruz into acting as attesting witnesses and Juan's taking pictures of the entire signing ceremony which was a sign of evil intention because it was an expectancy of future rift or trouble; (d) Felizardo held and kept the alleged will from the time of alleged signing up to Alegria's death which possession and control lasted for several months; (e) the testimony of Torres that the first two pages of Exhibit A, which contained the dispositions of the properties of the Figueras estates, as well as the forged signatures were substitutes for the originals; and (g) that petitioners and their respective families gained enormously by reason of said will.

The RTC said that even if the alleged will was found to be authentic, it will still be contested as the dispositions made therein were contrary to law most particularly that portion bequeathing to petitioners the whole residential property of the spouses Jose and Alegria Figueras, which was conjugal, to the exclusion of Eduardo and Francisco Figueras and Fritz Strebel who are forced heirs; that because of such disposition, the RTC was convinced that the alleged will was not that of Alegria but of petitioners, since Alegria being the administratrix of the estate of her husband Jose would be the last person to give this property outside of the Figueras family. Mercedes Santos and Victorino Cruz were acquitted for lack of evidence.

Petitioners filed their appeal with the CA.

On August 13, 1988, the CA issued its assailed Decision affirming in toto the decision of the RTC.

Petitioners motion for reconsideration was denied in a Resolution dated May 17, 1999.

Hence, this petition for review filed by petitioners on the following grounds:

A. THE HONORABLE COURT OF APPEALS HAD OVERLOOKED AND FAILED TO CONSIDER THE SIGNIFICANT FACTS AND CIRCUMSTANCES OF THIS CASE WHICH, IF PROPERLY CONSIDERED, SHOULD HAVE DRAWN A DIFFERENT CONCLUSION AND WHICH SHALL CONSIDERABLY AFFECT THE RESULT OF THIS CASE.

B. THE NON-PRODUCTION AND/OR NON-PRESENTATION OF THE ORIGINAL COPY OF THE ALLEGED FALSIFIED LAST WILL AND TESTAMENT OF ALEGRIA STREBEL VDA. DE FIGUERAS BEFORE THE TRIAL COURT IS A FATAL DEFECT WHICH ENTITLES HEREIN APPELLANTS TO ACQUITTAL.

C. THERE IS ABSOLUTELY NO CONSPIRACY TO WARRANT CONVICTION OF FELIZARDO AND [JUAN] OBANDO.

D. THE WILL OF ALEGRIA STREBEL VDA. DE FIGUERAS DISPOSES ONLY OF HER RIGHTS AND INTERESTS OVER THE PROPERTIES BEQUEATHED TO FELIZARDO AND JUAN OBANDO.

E. CONFLICTING EXPERT TESTIMONIES, COUPLED WITH THE POSITIVE EVIDENCE AS TO THE DUE EXECUTION AND AUTHENTICITY OF THE WILL SHOULD FAVOR APPELLANTS.

F. THE ABSENCE IN THE NBI FINDINGS (EXHIBIT D-1) AS TO THE GENUINENESS AND/OR FALSITY OF THE SIGNATURES OF MERCEDES SANTOS CRUZ, VICTORINO CRUZ AND ATTY. FRANKLIN CORDON ON THE LAST WILL AND TESTAMENT (EXHIBIT A), NEGATES THE FALSIFICATION AND/OR SUBSTITUTION OF THE FIRST AND SECOND PAGES OF THE SAID LAST WILL AND TESTAMENT OF DOA ALEGRIA STREBEL VDA. DE FIGUERAS.

G. THERE IS NO ESTAFA COMMITTED BY APPELLANTS, NEITHER DID THE PROSECUTION PROVE THE [9] COMPLEX CRIME OF ESTAFA THROUGH FALSIFICATION OF PUBLIC DOCUMENT.

Petitioners contend that the non-presentation of the original copy of the alleged falsified will before the RTC was a fatal defect which entitles them to an acquittal.

We are not persuaded.

We note that during the trial of this case, petitioners did not raise any objection when the alleged will was presented and testified to by NBI Document Examiner Torres. We also note that in the Offer of Prosecution [10] Evidence, where the machine copy of the alleged will was marked as Exhibit A, the prosecution, in the last paragraph of such offer, stated that all these (documents) form the bulk of evidence in Special Proceeding Nos. 123948 and 61567 and were simply reproduced here as agreed upon by the parties. We are compelled to mention this so that the accused [11] will have no reason for questioning their authenticity. In their Comment/Objection to the Offer of Prosecution

Evidence, petitioners merely stated that: If this particular document is the original copy of the Last Will and Testament of Doa Alegria Strebel Vda. de Figueras, which was marked as Exhibits J, J -1 to J-17 in Special Proceedings Nos. 61567 and 123948, then the accused admits not only of its existence but also its validity, authenticity and due execution of said Last Will and Testament, but nowhere did they object to such submission of the machine copy. In fact, petitioners never sought reconsideration when the RTC admitted the machine copy of the alleged will.

[12]

More importantly, we note that a duplicate original copy of the alleged will was formally offered in evidence as one of petitioners' documentary evidence and the same was already admitted by the RTC. Thus, a duplicate original copy of the alleged will was already admitted in the records of the case which the RTC used for comparison of the questioned signatures with that of the standard signatures of Alegria.

[13]

Petitioners fault the RTC and the CA for giving more weight to the findings of NBI Document Examiner Torres that the signature in the alleged will was forged as against the findings of PNP Document Examination Chief Cruz that the questioned signature was genuine.

The rule is that the findings of fact of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings, are accorded high respect if not conclusive effect. This is more true if such findings were affirmed by the appellate court. When the trial courts findings have been affirmed by the appellate court, said findings are generally binding upon this Court unless when that determination is clearly without evidentiary support on record, or when the judgment is based on misapprehension of [14] facts or overlooked certain relevant facts which, if properly considered, would justify a different conclusion, which we do not find in this case.

In examining the questioned signatures of Alegria, Torres used the standard specimen signatures submitted by petitioners, Eduardo and Fritz, the parties in the probate proceedings. Torres found that the questioned and standard/sample signatures of Alegria were not written by one and the same person. However, as petitioners did not agree with such findings, petitioners moved for another examination of the same documents together with three additional documents to be conducted by the PNP. PNP Document Examiner Chief Francisco Cruz submitted his report where he found that the questioned signatures and the standard signatures executed in 1978 indicated that they were written by one person. Both Torres and Cruz testified in court.

Torres, in her direct and cross-examinations, thoroughly explained her findings by establishing the fundamental differences in the writing characteristics and habits existing in the questioned and standard signatures.

First, in the alignment characteristics, i.e., the relationship of the letters in the name with the base line or where the letters rest. She pointed out that in the standard signatures, all the letters in the name were written in an even straight base notwithstanding that some of the standard signatures were written without the horizontal line. In the questioned signatures, the name Alegria S. Vda. de Figueras was written either in a going up or going down direction, i.e., there was no [15] even placement of the letters.

Second, in the arrangement characteristics, i.e., the position of the written signature in relation to the typewritten name. Torres found that the one who wrote the questioned signatures had the habit of affixing the signatures across and covering the entire typewritten name. While in the standard signatures, the writer affixed the signatures above the typewritten name and there was no instance where the signature crossed the typewritten name. Torres intimated that such arrangement characteristic in handwriting identification was very significant, because it was considered to be an [16] inconspicuous characteristic which meant that even the writers themselves would not notice that manner of signing.

Third, the slight but consistent difference in the slant of the letter g in the name Alegria. Torres stated that slant meant the slope of the letter in relation to the base line. She found that in the standard signatures, the slopes of the letter g in Alegria formed an angle of less than 90 degrees; that the letter g was slanting to the right. While in the questioned [17] signatures, the slopes of letter g formed an angle of more than 90 degrees.

Fourth, the proportion characteristic which meant the relationship of one letter to the next letter.

[18]

Fifth, the manner of execution of the questioned signatures was different from that of the standard signatures. Torres found that in the questioned signatures, there were presence of hesitations, tremors, slow drawing movement, and consciousness which were not found in the standard signatures, which she had explained in details in her testimony.

On the other hand, PNP Document Examiner Cruz stated that there was a wide range of variations existing between the questioned signatures made in 1978 and the standard signatures executed in 1974, 1976 and 1978, indicating that there was a radical change in the physical condition of the writer wherein the muscle and nerves were affected resulting in the loss of muscular control. He also stated that while the questioned signatures and the standard signatures were dissimilar in the manner of execution, quality of lines, alignment and size of letter, no definite conclusion can be reached in view of the wide gap of execution. He then stated that the questioned signatures executed on November 11, 1978 and the standard signature executed in December 1978, which was most contemporaneous to the date of the execution of the [19] questioned signatures, he found they were similar and showed that they were written by one person.

We note that Cruzs findings as to the loss of muscular control in Alegrias hand allegedly due to her physical condition was contradicted by Torres' testimony that the standard signature executed by Alegria in December 1978, i.e., one month after the alleged will was executed, showed that she was in good physical condition, because her signature was smooth with flowing strokes with an even alignment which indicated that Alegria had good muscular control and [20] coordination. Notably, Dr. Elena Cariaso, the doctor who was tasked by the probate court to examine the physical and mental condition of Alegria in December 1978, testified that Alegria was physically and mentally fit with only a weakness in her lower extremities; thus, corroborating Torres finding that Alegria's hand had good muscular control and coordination. In fact, Torres established that the standard signatures written in 1966, 1974, 1976 and in December 1978, all showed that [21] the signatures were made in a continuous, spontaneous and unconscious manner unlike that of the questioned signatures.

Expert opinions are not ordinarily conclusive. They are generally regarded as purely advisory in character. The courts may place whatever weight they choose upon and may reject them, if they find them inconsistent with the facts in the case or otherwise unreasonable. When faced with conflicting expert opinions, as in this case, courts give more weight [22] and credence to that which is more complete, thorough, and scientific. The value of the opinion of a handwriting expert depends not upon his mere statements of whether a writing is genuine or false, but upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing [23] which would ordinarily escape notice or detection from an unpracticed observer.

We agree with the RTC and the CA in giving more weight and credence to the testimony of Torres as the examination conducted by Torres was complete, thorough and scientific. We find that the RTC had the opportunity to examine the relevant documents and make comparisons thereof. In fact, upon our own comparison of the questioned signatures and the standard signatures taking into consideration inconspicuous differences noted by Torres on the questioned and standard signatures, we find that the questioned signatures showed substantial differences with that of the standard signatures of Alegria.

Petitioner claims that the testimonies of the notary public, as well as the two attesting witnesses that they saw Alegria sign the will in their presence, should have outweighed the testimony of Torres.

We are not persuaded. In his testimony, Notary Public Farrales testified that when he, together with another lawyer, Atty. Cordon, went inside the room of Alegria who was in bed, he presented to her copies of the will which he brought from his office; [24] that Alegria read the same and called in petitioner Felizardo to bring some small board where she could write; after Felizardo handed the same, he again left the room. Farrales said that Alegria signed the will in his presence, as well as in the presence of Atty. Cordon and the other attesting witnesses, Mercedes and Victorino; that petitioner Felizardo was just outside the room when the signing was on-going;[25] that Farrales was the one who assisted Alegria in turning the pages of the documents and was the one who pointed to her the portion where she was to affix her signatures; [26] and that after the signing and notarization of the will, Alegria requested them to call on petitioner Felizardo and once Felizardo was inside the room, Alegria gave the documents to the latter who placed the will in an envelope. [27] On the other hand, Mercedes testified that when she and Victorino entered Alegria's room, she saw Alegria, Felizardo, Attys. Farrales and Cordon; that Alegria instructed petitioner Felizardo to read aloud the will which Felizardo did;[28] and that Alegria and the other witnesses signed the will in the presence of each other and was duly notarized; and that she saw Felizardo keep the will inside the vault. [29] Victorino testified that when he and Mercedes entered Alegria's room, he saw Atty. Farrales, Cordon, Felizardo and Alegria who was in a reclined position in her bed; that Alegria asked Felizardo to get the sealed document from a cabinet;[30] that Alegria told petitioner Felizardo to give each one of them a copy of the document and instructed petitioner Felizardo to read the contents of the will aloud;[31] and that he saw Alegria signed the will in their presence. Notably, their testimonies showed material inconsistencies which affected their credibilities. Farrales testified that the copies of the alleged will came from his office and he was the one who gave the same to Alegria which, however, was contrary to Victorinos claim that petitioner Felizardo got the alleged will from the cabinet. Farrales testified that petiti oner Felizardo was not inside the room when the signing was ongoing which was again contrary to the claims of both Mercedes

and Victorino that petitioner Felizardo was inside the room while the signing was on-going; and that Alegria even instructed Felizardo to read aloud the contents of the same to them. Notably, Farrales testified that he was the one who turned the pages of the will and was also the one who pointed to Alegria the portion where to affix her signatures and that no other person rendered such assistance except him.[32] However, in petitioner Felizardo's testimony, he said that he was present when the will was being signed by Alegria.[33] In fact, petitioner Felizardo submitted photographs which were admittedly taken by copetitioner Juan to prove the former's presence during the signing and to show that he was the one assisting Alegria in signing the will. Such contradictory statements coming from persons who allegedly were present when the will was executed render doubtful the genuineness of the alleged forged will. Thus, we find no error committed by the RTC in not giving credence to their testimonies.

We find the elements of falsification of public document present in this case. Essentially, the elements of the crime of Falsification of Public Document under Article 172 (1) of the Revised Penal Code (RPC) are: (1) that the offender is a private individual; (2) that the offender committed any of the acts of falsification enumerated under Article 171; and (3) that the act of falsification is committed in a public document. Under paragraph 2 of Article 171, a person may commit falsification of a public document by causing it to appear in a document that a person or persons participated in an act or proceeding, when such person or persons did not, in fact, so participate in the act or proceeding.

In this case, petitioners are private individuals who presented the alleged will to the probate court and made it appear that Alegria signed the alleged will disposing of her rights and interest in the real properties, as well as all of her personal properties to petitioners when in fact petitioners knew that Alegria never signed such alleged will as her signatures therein were forged.

We find apropos the findings of the RTC that petitioners conspired to perpetuate such forgery, to wit:

1.

The so-called Will and Testament was admitted by Felizardo S. Obando in open hearing to have been dictated by him to a certain Atty. Alcantara allegedly as voiced out to him by Alegria; He said he procured the service of said lawyer and the very notary public, one Atty. C. Farrales to notarize it; Juanito Obando enticed the couple Mercedes B. Santos and Victorino Cruz into acting as witnesses, Mercedes being his sister-in-law, and his taking pictures of the entire ceremony of signing such document. This taking of such pictures is itself a sign of evil intention, because it is an expectancy of future rift or trouble; Felizardo held and kept the questioned document with him from its inception to its alleged signing and up to Alegrias death which possession and complete control lasted for several months;

2.

3.

4.

5.

Felizardo and Juanito Obando and their respective families again by their joint admissions, gained enormously and by reason of said will.

The crime of falsification of public document was the means for petitioners to commit estafa. The [34] elements of estafa under Article 315, par. 1 (b) of the RPC are as follows: (1) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same; (2) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; and (3) that such misappropriation or conversion or denial is to the prejudice of another.

Petitioner Felizardo argued that he already had in his possession the personal properties of Alegria which included the pieces of jewelry by virtue of an alleged general power of attorney executed by Alegria in his favor. However, as correctly argued by the Solicitor General, such agency between Alegria and petitioner Felizardo, was terminated upon Alegrias death; thus, he had no basis for taking possession and custody of Alegrias properties after her death. However, by virtue of the falsified will which petitioners presented for probate, and by which petitioner Felizardo became a coadministrator of the estate of the Figueras couple, and had gained possession of the jewelry, he was not able to account for the same when ordered to do so by the probate court.

On the other hand, co-petitioner Juan admitted that the pieces of jewelry went to his daughters and nieces, while the real properties were already sold even while the intestate and probate proceedings were still pending in court.

Petitioners' misappropriation of the jewelry was to the prejudice of Eduardo Figueras who also has the right to Alegria's jewelry in general which were part of the declared conjugal estate of his father Jose and Alegria Figueras. Notably, Alegria, as administratrix of the estate of Jose, submitted in 1966 an inventory of the conjugal real and personal properties of the Figueras couple and one of those listed under conjugal personal properties was jewelry in the amount of P2,150.00. Such inventory was contained in the Order dated September 10, 1980 of the probate court and which was submitted in evidence by petitioners.

The crime committed was estafa through falsification of public document. Being a complex crime, the penalty for [35] the most serious crime shall be imposed in its maximum period. While we sustain the conviction of petitioners of the crime charged, we found, however, that the penalty imposed by the trial court and affirmed by the Court of Appeals was not proper.

The amount of damages is the basis of the penalty for estafa. However, we note that the prosecution failed to satisfactorily show that the amount of jewelry misappropriated was indeed two million pesos. The only evidence on record which would establish the amount of the jewelry was the inventory submitted in 1966 by Alegria where she listed the jewelry in the amount of P2,150.00.

Since the amount misappropriated by petitioners was established to be only in the amount of P2,150.00, the applicable provision is paragraph (3) of Article 315 of the Revised Penal Code, which imposes the penalty of arresto mayor in its maximum period to prision correccional in its minimum period, where the amount defrauded is overP200.00 but does not exceed P6,000.00. Thus, in this case, it appears that the most serious crime, which should be the basis of penalty for the complex crime of estafa through falsification of public document, would be the falsification and, under Article 172 of the Revised Penal Code, the penalty is prision correccional in its medium and maximum periods and a fine of not more than P5,000.00.

Thus, the maximum penalty to be imposed in this case is the medium period of prision correccional in its medium and maximum periods, there being no mitigating or aggravating circumstances. Applying the Indeterminate Sentence Law, the minimum penalty should be taken from the penalty next lower in degree which is arresto mayormaximum to prision correccional minimum in any of its period.

WHEREFORE, the petition is DENIED. The Decision dated August 13, 1998 and the Resolution dated May 17, 1999 of the Court of Appeals are AFFIRMED withMODIFICATION as to the penalty imposable. Petitioners are hereby sentenced to suffer the penalty of one (1) year and one (1) day of prision correccional, as minimum, to four (4) years, nine (9) months and ten (10) days of prision correccional, as the maximum, and to pay a fine of P5,000.00.

SO ORDERED.

G.R. No. 122880. April 12, 2006.* FELIX AZUELA, petitioner, vs. COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, respondents. Wills and Succession; Notarial Will; Attestation Clause; 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. 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. 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. 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, for gery, 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. Same; Same; Same; A failure by the attestation clause to state that the testator signed every page can be liberally 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.*I+t may thus be stated that the rule, as it now stands, is that o mission 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. Thus, a failure by the attestation clause to state that the testator signed every page can be liberally 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. Same; Same; Same; 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; There is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of.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. 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. Same; Same; Same; The fact remains that the members of the Code Commission saw fit to prescribe substantially the same formal requisites enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against forgery or intercalation of notarial wills; The transcendent legislative intent, even as expressed in the comments of the Code Commission, is for the fruition of the testators incontestable d esires, and not for indulgent admission of wills to probate.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. 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. 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. Same; Same; Same; Instrumental Witnesses; Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from the 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; Even if instrumental witnesses signed the left-hand margin of the page containing the unsigned clause, such signatures cannot demonstrate these witnesses undertakings in the clause, since the signatu res that do appear on the page were directed towards a wholly different avowal.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 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. Same; Same; Same; It is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselvesit is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will was written.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. Same; Same; Same; 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; It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of the document has attested to the notary that the same is his/her own free act and deed.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 highl ighted by the fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate provision, Article 806. The nonobservance 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. By no manner of cont emplation 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. 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. Same; Same; Same; Same; Jurat; A jurat is that part of an affidavit whereby the notary certifies that before him/her, the document was subscribed and sworn to by the executor.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. 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 124

124 SUPREME COURT REPORTS ANNOTATED

Azuela vs. Court of Appeals swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses. Same; Same; Same; Same; Same; The express requirement of Article 806 is that the will is to be acknowledged, and not merely subscribed and sworn to; 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. 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. 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 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. Same; Same; Same; Same; 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. 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. [Azuela vs. Court of Appeals, 487 SCRA 119(2006)] THIRD DIVISION

FELIX AZUELA, Petitioner,

G.R. No. 122880 Present: QUISUMBING, J.,

- versus -

Chairperson, CARPIO, CARPIO MORALES, and TINGA, JJ.

COURT OF APPEALS, GERALDA AIDA CASTILLO Promulgated: substituted by ERNESTO G. CASTILLO, April 12, 2006 Respondents. x----------------------------------------------------------------------------x

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 naghahayag 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, ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pagingat (Executor) nghabiling ito ay magtatayo ng bantayog upang silbing ala-ala akin ng aking pamilya at kaibigan; La Loma sangsa

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 bahayna nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na na katirik sa inoopahan kong lote,numero 43, Block 24 na pagaari 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, at ang pagkakaloob kong ito ay walang pasubalit at kondiciones;

Manila kay Felix

Azuela

PangatloNa ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang maglagak 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 ika10ng 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 kaminamang 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 dahonng 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 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.

Doc. No. 1232 ; Page No. 86 ; Book No. 43 ; Series of 1981

(Sgd.) PETRONIO Y. BAUTISTA NOTARIO PUBLIKO Until Dec. 31, 1981 PTR-152041-1/2/81-Manila TAN # 1437-977-8[1]

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 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 sub-title, 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 HulingHabilin, 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 harapng 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 nasabingkasulatan 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 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 motherin-law, 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 h e 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. Sioca[13] and In re: Will of Andrada.[14] InUy 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 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. Florentino[19] 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 decidendiof 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 165-165, 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 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 fra ud, 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 execut ion 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 Appeals[26] 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 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. Cagro[36] 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 lefthand margin.[37] While three (3) Justices[38] 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 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.
[40]

Bautista,

wrote

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsodng Maynila.

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 e xecutors 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 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, the petition is DENIED. Costs against petitioner. SO ORDERED.

Estate of Hilario M. Ruiz vs. Court of Appeals G.R. No. 118671. January 29, 1996.* THE ESTATE OF HILARIO M. RUIZ, EDMOND RUIZ, Executor, petitioner, vs. THE COURT OF APPEALS (Former Special Sixth Division), MARIA PILAR RUIZ-MONTES, MARIA CATHRYN RUIZ, CANDICE ALBERTINE RUIZ, MARIA ANGELINE RUIZ and THE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF PASIG, BRANCH 156, respondents. Succession; Support; Allowances for support under Section 3 of Rule 83 should not be limited to the minor or incapacitated children of the deceasedthe law is rooted on the fact that the right and duty to support, especially the right to education, subsist even beyond the age of majority. It is settled that allowances for support under Section 3 of Rule 83 should not be limited to the minor or incapacitated children of the deceased. Article 188 of the Civil Code of the Philippines, the substantive law in force at the time of the testators death, provides that during the liquidation of the conjugal partnership, the deceaseds legitimate spouse and children, regardless of their age, civil status or gainful employment, are entitled to provisional support from the funds of the estate. The law is rooted on the fact that the right and duty to support, especially the right to education, subsist even beyond the age of majority.

Same; Same; Grandchildren are not entitled to provisional support from the funds of the decedents estate.Be that as it may, grandchildren are not entitled to provisional support from the funds of the decedents estate. The law clearly limits the allowance to widow and children and does not extend it to the deceaseds grandchildren, regardless of their minority or incapacity. It was error, therefore, for the appellate court to sustain the probate courts order granting an allowance to the grandchildren of the testator pending settlement of his estate. Same; Settlement of Estates; Conditions before distribution of estate properties can be made.In settlement of estate proceedings, the distribution of the estate properties can only be made: (1) after all the debts, funeral charges, expenses of administration, allowance to the widow, and estate tax have been paid; or (2) before payment of said obligations only if the distributees or any of them gives a bond in a sum fixed by the court conditioned upon the payment of said obligations within such time as the court directs, or when provision is made to meet those obligations. Same; Same; Taxation; The estate tax is one of those obligations that must be paid before distribution of the estate, and if not paid, the rule requires that the distributees post a bond or make such provisions as to meet the said tax obligation in proportion to their respective shares in the inheritance.In the case at bar, the probate court ordered the release of the titles to the Valle Verde property and the Blue Ridge apartments to the private respondents after the lapse of six months from the date of first publication of the notice to creditors. The questioned order speaks of notice to creditors, not payment of debts and obligations. Hilario Ruiz allegedly left no debts when he died but the taxes on his estate had not hitherto been paid, much less ascertained. The estate tax is one of those obligations that must be paid before distribution of the estate. If not yet paid, the rule requires that the distributees post a bond or make such provisions as to meet the said tax obligation in proportion to their respective shares in the inheritance. Notably, at the time the order was issued the properties of the estate had not yet been inventoried and appraised. Same; Same; Wills; Probate of Wills; The probate of a will is conclusive as to its due execution and extrinsic validity and settles only the question of whether the testator, being of sound mind, freely executed it in accordance with the formalities prescribed by lawquestions as to intrinsic validity may still be raised even after the will has been authenticated.It was also too early in the day for the probate court to order the release of the titles six months after admitting the will to probate. The probate of a will is conclusive as to its due execution and extrinsic validity and settles only the question of whether the testator, being of sound mind, freely executed it in accordance with the formalities prescribed by law. Questions as to the intrinsic validity and efficacy of the provisions of the will, the legality of any devise or legacy may be raised even after the will has been authenticated. Same; Same; Same; Same; Executors and Administrators; The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised so long as it is necessary for the payment of the debts and expenses of administration.Still and all, petitioner cannot correctly claim that the assailed order deprived him of his right to take possession of all the real and personal properties of the estate. The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised so long as it is necessary for the payment of the debts and expenses of administration. Same; Same; Same; Same; Same; Trusts; An heirs right of ownership over the properties of the decedent is merely inchoate as long as the estate has not been fully settled and partitioned; An executor is a mere trustee of the estate the funds of the estate in his hands are trust funds and he is held to the duties and responsibilities of a trustee of the highest order. Petitioner must be reminded that his right of ownership over the properties of his father is merely inchoate as long as the estate has not been fully settled and partitioned. As executor, he is a mere trustee of his fathers estate. The funds of the estate in his hands are trust funds and he is held to the duties and responsibilities of a trustee of the highest order. He cannot unilaterally assign to himself and possess all his parents properties and the fruits thereof without first submitting an

inventory and appraisal of all real and personal properties of the deceased, rendering a true account of his administration, the expenses of administration, the amount of the obligations and estate tax, all of which are subject to a determination by the court as to their veracity, propriety and justness. [Estate of Hilario M. Ruiz vs. Court of Appeals, 252 SCRA 541(1996)]

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 118671 January 29, 1996

THE ESTATE OF HILARIO M. RUIZ, EDMOND RUIZ, Executor, petitioner, vs. THE COURT OF APPEALS (Former Special Sixth Division), MARIA PILAR RUIZ-MONTES, MARIA CATHRYN RUIZ, CANDICE ALBERTINE RUIZ, MARIA ANGELINE RUIZ and THE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF PASIG, respondents. DECISION PUNO, J.: This petition for review on certiorari seeks to annul and set aside the decision dated November 10, 1994 and the resolution dated January 5, 1995 of the Court of Appeals in CA-G.R. SP No. 33045. The facts show that on June 27, 1987, Hilario M. Ruiz executed a holographic will naming as his heirs his only son, Edmond Ruiz, his adopted daughter, private respondent Maria Pilar Ruiz Montes, and his three granddaughters, private respondents Maria Cathryn, Candice Albertine and Maria Angeline, all children of Edmond Ruiz. The testator bequeathed to his heirs substantial cash, personal and real properties and named 2 Edmond Ruiz executor of his estate. On April 12, 1988, Hilario Ruiz died. Immediately thereafter, the cash component of his estate was distributed among Edmond Ruiz and private respondents in accordance with the decedent's will. For unbeknown reasons, Edmond, the named executor, did not take any action for the probate of his father's holographic will. On June 29, 1992, four years after the testator's death, it was private respondent Maria Pilar Ruiz Montes who filed before the Regional Trial Court, Branch 156, Pasig, a petition for the probate and approval of Hilario Ruiz's 3 will and for the issuance of letters testamentary to Edmond Ruiz, Surprisingly, Edmond opposed the petition on the ground that the will was executed under undue influence. On November 2, 1992, one of the properties of the estate the house and lot at No. 2 Oliva Street, Valle Verde 4 IV, Pasig which the testator bequeathed to Maria Cathryn, Candice Albertine and Maria Angeline was leased out by Edmond Ruiz to third persons. On January 19, 1993, the probate court ordered Edmond to deposit with the Branch Clerk of Court the rental deposit and payments totalling P540,000.00 representing the one-year lease of the Valle Verde property. In compliance, on January 25, 1993, Edmond turned over the amount of P348,583.56, representing the balance of 5 the rent after deducting P191,416.14 for repair and maintenance expenses on the estate.
1

In March 1993, Edmond moved for the release of P50,000.00 to pay the real estate taxes on the real properties of 6 the estate. The probate court approved the release of P7,722.00. On May 14, 1993, Edmond withdrew his opposition to the probate of the will. Consequently, the probate court, on May 18, 1993, admitted the will to probate and ordered the issuance of letters testamentary to Edmond conditioned upon the filing of a bond in the amount of P50,000.00. The letters testamentary were issued on June 23, 1993. On July 28, 1993, petitioner Testate Estate of Hilario Ruiz, with Edmond Ruiz as executor, filed an "Ex-Parte Motion for Release of Funds." It prayed for the release of the rent payments deposited with the Branch Clerk of Court. Respondent Montes opposed the motion and concurrently filed a "Motion for Release of Funds to Certain Heirs" and "Motion for Issuance of Certificate of Allowance of Probate Will." Montes prayed for the release of the said rent payments to Maria Cathryn, Candice Albertine and Maria Angeline and for the distribution of the testator's properties, specifically the Valle Verde property and the Blue Ridge apartments, in accordance with the provisions of the holographic will. On August 26, 1993, the probate court denied petitioner's motion for release of funds but granted respondent Montes' motion in view of petitioner's lack of opposition. It thus ordered the release of the rent payments to the decedent's three granddaughters. It further ordered the delivery of the titles to and possession of the properties bequeathed to the three granddaughters and respondent Montes upon the filing of a bond of P50,000.00. Petitioner moved for reconsideration alleging that he actually filed his opposition to respondent Montes's motion for release of rent payments which opposition the court failed to consider. Petitioner likewise reiterated his previous motion for release of funds. On November 23, 1993, petitioner, through counsel, manifested that he was withdrawing his motion for release of 7 funds in view of the fact that the lease contract over the Valle Verde property had been renewed for another year. Despite petitioner's manifestation, the probate court, on December 22, 1993, ordered the release of the funds to Edmond but only "such amount as may be necessary to cover the expenses of administration and allowances for support" of the testator's three granddaughters subject to collation and deductible from their share in the inheritance. The court, however, held in abeyance the release of the titles to respondent Montes and the three 8 granddaughters until the lapse of six months from the date of first publication of the notice to creditors. The court stated thus: xxx xxx xxx

After consideration of the arguments set forth thereon by the parties the court resolves to allow Administrator Edmond M. Ruiz to take possession of the rental payments deposited with the Clerk of Court, Pasig Regional Trial Court, but only such amount as may be necessary to cover the expenses of administration and allowances for support of Maria Cathryn Veronique, Candice Albertine and Maria Angeli, which are subject to collation and deductible from the share in the inheritance of said heirs and insofar as they exceed the fruits or rents pertaining to them. As to the release of the titles bequeathed to petitioner Maria Pilar Ruiz-Montes and the above-named heirs, the same is hereby reconsidered and held in abeyance until the lapse of six (6) months from the date of first publication of Notice to Creditors. WHEREFORE, Administrator Edmond M. Ruiz is hereby ordered to submit an accounting of the expenses necessary for administration including provisions for the support Of Maria Cathryn Veronique Ruiz, Candice Albertine Ruiz and Maria Angeli Ruiz before the amount required can be withdrawn and 9 cause the publication of the notice to creditors with reasonable dispatch.

Petitioner assailed this order before the Court of Appeals. Finding no grave abuse of discretion on the part of respondent judge, the appellate court dismissed the petition and sustained the probate court's order in a decision 10 11 dated November 10, 1994 and a resolution dated January 5, 1995. Hence, this petition. Petitioner claims that: THE PUBLIC RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AFFIRMING AND CONFIRMING THE ORDER OF RESPONDENT REGIONAL TRIAL COURT OF PASIG, BRANCH 156, DATED DECEMBER 22, 1993, WHICH WHEN GIVEN DUE COURSE AND IS EFFECTED WOULD: (1) DISALLOW THE EXECUTOR/ADMINISTRATOR OF THE ESTATE OF THE LATE HILARIO M. RUIZ TO TAKE POSSESSION OF ALL THE REAL AND PERSONAL PROPERTIES OF THE ESTATE; (2) GRANT SUPPORT, DURING THE PENDENCY OF THE SETTLEMENT OF AN ESTATE, TO CERTAIN PERSONS NOT ENTITLED THERETO; AND (3) PREMATURELY PARTITION AND DISTRIBUTE THE ESTATE PURSUANT TO THE PROVISIONS OF THE HOLOGRAPHIC WILL EVEN BEFORE ITS INTRINSIC VALIDITY HAS BEEN DETERMINED, AND DESPITE THE EXISTENCE OF UNPAID DEBTS 12 AND OBLIGATIONS OF THE ESTATE. The issue for resolution is whether the probate court, after admitting the will to probate but before payment of the estate's debts and obligations, has the authority: (1) to grant an allowance from the funds of the estate for the support of the testator's grandchildren; (2) to order the release of the titles to certain heirs; and (3) to grant possession of all properties of the estate to the executor of the will. On the matter of allowance, Section 3 of Rule 83 of the Revised Rules of Court provides: Sec. 3. Allowance to widow and family. The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom under the direction of the court, such allowance as are provided by law. Petitioner alleges that this provision only gives the widow and the minor or incapacitated children of the deceased the right to receive allowances for support during the settlement of estate proceedings. He contends that the testator's three granddaughters do not qualify for an allowance because they are not incapacitated and are no longer minors but of legal age, married and gainfully employed. In addition, the provision expressly states "children" of the deceased which excludes the latter's grandchildren. It is settled that allowances for support under Section 3 of Rule 83 should not be limited to the "minor or 13 incapacitated" children of the deceased. Article 188 of the Civil Code of the Philippines, the substantive law in force at the time of the testator's death, provides that during the liquidation of the conjugal partnership, the deceased's legitimate spouse and children, regardless of their age, civil status or gainful employment, are entitled 14 to provisional support from the funds of the estate. The law is rooted on the fact that the right and duty to 15 support, especially the right to education, subsist even beyond the age of majority. Be that as it may, grandchildren are not entitled to provisional support from the funds of the decedent's estate. The law clearly limits the allowance to "widow and children" and does not extend it to the deceased's 16 grandchildren, regardless of their minority or incapacity. It was error, therefore, for the appellate court to sustain the probate court's order granting an allowance to the grandchildren of the testator pending settlement of his estate. Respondent courts also erred when they ordered the release of the titles of the bequeathed properties to private respondents six months after the date of first publication of notice to creditors. An order releasing titles to properties of the estate amounts to an advance distribution of the estate which is allowed only under the following conditions:

Sec. 2. Advance distribution in special proceedings. Nothwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in 17 Rule 90 of these Rules. And Rule 90 provides that: Sec. 1. When order for distribution of residue made. When the debts, funeral charges, and expenses of administration the allowance to the widow, and inheritance tax if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. 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, 18 conditioned for the payment of said obligations within such time as the court directs. In settlement of estate proceedings, the distribution of the estate properties can only be made: (1) after all the debts, funeral charges, expenses of administration, allowance to the widow, and estate tax have been paid; or (2) before payment of said obligations only if the distributees or any of them gives a bond in a sum fixed by the court conditioned upon the payment of said obligations within such time as the court directs, or when provision is made 19 to meet those obligations. In the case at bar, the probate court ordered the release of the titles to the Valle Verde property and the Blue Ridge apartments to the private respondents after the lapse of six months from the date of first publication of the notice to creditors. The questioned order speaks of "notice" to creditors, not payment of debts and obligations. Hilario Ruiz allegedly left no debts when he died but the taxes on his estate had not hitherto been paid, much less ascertained. The estate tax is one of those obligations that must be paid before distribution of the estate. If not yet paid, the rule requires that the distributees post a bond or make such provisions as to meet the said tax obligation 20 in proportion to their respective shares in the inheritance. Notably, at the time the order was issued the properties of the estate had not yet been inventoried and appraised. It was also too early in the day for the probate court to order the release of the titles six months after admitting the 21 will to probate. The probate of a will is conclusive as to its due execution and extrinsic validity and settles only the question of whether the testator, being of sound mind, freely executed it in accordance with the formalities 22 prescribed by law. Questions as to the intrinsic validity and efficacy of the provisions of the will, the legality of 23 any devise or legacy may be raised even after the will has been authenticated. The intrinsic validity of Hilario's holographic will was controverted by petitioner before the probate court in his 24 Reply to Montes' Opposition to his motion for release of funds and his motion for reconsideration of the August 25 26, 1993 order of the said court. Therein, petitioner assailed the distributive shares of the devisees and legatees inasmuch as his father's will included the estate of his mother and allegedly impaired his legitime as an intestate heir of his mother. The Rules provide that if there is a controversy as to who are the lawful heirs of the decedent and their distributive shares in his estate, the probate court shall proceed to hear and decide the same as in 26 ordinary cases. Still and all, petitioner cannot correctly claim that the assailed order deprived him of his right to take possession of all the real and personal properties of the estate. The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised "so

long as it is necessary for the payment of the debts and expenses of administration," Revised Rules of Court explicitly provides:

27

Section 3 of Rule 84 of the

Sec. 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed. An executor or administrator shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and 28 expenses for administration. When petitioner moved for further release of the funds deposited with the clerk of court, he had been previously granted by the probate court certain amounts for repair and maintenance expenses on the properties of the estate, and payment of the real estate taxes thereon. But petitioner moved again for the release of additional funds for the same reasons he previously cited. It was correct for the probate court to require him to submit an accounting of the necessary expenses for administration before releasing any further money in his favor. It was relevantly noted by the probate court that petitioner had deposited with it only a portion of the one-year rental income from the Valle Verde property. Petitioner did not deposit its succeeding rents after renewal of the 29 lease. Neither did he render an accounting of such funds. Petitioner must be reminded that his right of ownership over the properties of his father is merely inchoate as long 30 as the estate has not been fully settled and partitioned. As executor, he is a mere trustee of his father's estate. The funds of the estate in his hands are trust funds and he is held to the duties and responsibilities of a trustee of 31 the highest order. He cannot unilaterally assign to himself and possess all his parents' properties and the fruits thereof without first submitting an inventory and appraisal of all real and personal properties of the deceased, rendering a true account of his administration, the expenses of administration, the amount of the obligations and 32 estate tax, all of which are subject to a determination by the court as to their veracity, propriety and justness. IN VIEW WHEREOF, the decision and resolution of the Court of Appeals in CA-G.R. SP No. 33045 affirming the order dated December 22, 1993 of the Regional Trial Court, Branch 156, Pasig in SP Proc. No. 10259 are affirmed with the modification that those portions of the order granting an allowance to the testator's grandchildren and ordering the release of the titles to the private respondents upon notice to creditors are annulled and set aside. Respondent judge is ordered to proceed with dispatch in the proceedings below. SO ORDERED.

Opulencia vs. Court of Appeals G.R. No. 125835. July 30, 1998.* NATALIA CARPENA OPULENCIA, petitioner, vs. COURT OF APPEALS, ALADIN SIMUNDAC and MIGUEL OLIVAN, respondents. Succession; Probate Proceedings; Sales; Section 7 of Rule 89 of the Rules of Court is not applicable where a party enters into a Contract to Sell in his capacity as an heir, not as an executor or administrator of the estate. As correctly ruled by the Court of Appeals, Section 7 of Rule 89 of the Rules of Court is not applicable, because petitioner entered into the Contract to Sell in her capacity as an heiress, not as an executrix or administratrix of the estate. In the contract, she represented herself as the lawful owner and seller of the subject parcel of land. She also explained the reason for the sal e to be difficulties in her living conditions and consequent need of cash. These representations clearly evince that she was not acting on behalf of the estate under probate when she entered into the Contract to Sell. Accordingly, the jurisprudence cited by petitioner has no application to the instant case.

Same; Same; Same; An heir becomes owner of his hereditary share the moment the decedent dies, thus, the lack of judicial approval does not invalidate the Contract to Sell, because the heir has the substantive right to sell the whole or a part of his share in the estate of the decedent.We emphasize that hereditary rights are vested in the heir or heirs from the moment of the decedents death. Petitioner, therefore, became the owner of her hereditary share the moment her father died. Thus, the lack of judicial approval does not invalidate the Contract to Sell, because the petitioner has the substantive right to sell the whole or a part of her share in the estate of her late father. Same; Same; Same; The sale made by an heir of his share in an inheritance, subject to the pending administration, in no wise stands in the way of such administration.The Contract to Sell stipulates that petitioners offer to sell is contingent on the complete clearance of the court on the Last Will and Testament of her father. Conseq uently, although the Contract to Sell was perfected between the petitioner and private respondents during the pendency of the probate proceedings, the consummation of the sale or the transfer of ownership over the parcel of land to the private respondents is subject to the full payment of the purchase price and to the termination and outcome of the testate proceedings. Therefore, there is no basis for petitioners apprehension that the Contract to Sell may result in a premature partition and distribution of the properties of the estate. Indeed, it is settled that the sale made by an heir of his share in an inheritance, subject to the pending administration, in no wise stands in the way of such administration. Estoppel; Jurisprudence teaches us that neither the law nor the courts will extricate a party from an unwise or undesirable contract he or she entered into with all the required formalities and with full awareness of its consequences. Petitioner is estopped from backing out of her representations in her valid Contract to Sell with private respondents, from whom she had already received P300,000 as initial payment of the purchase price. Petitioner may not renege on her own acts and representations, to the prejudice of the private respondents who have relied on them. Jurisprudence teaches us that neither the law nor the courts will extricate a party from an unwise or undesirable contract he or she entered into with all the required formalities and with full awareness of its consequences. [Opulencia vs. Court of Appeals, 293 SCRA 385(1998)] Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 125835 July 30, 1998 NATALIA CARPENA OPULENCIA, petitioner, vs. COURT OF APPEALS, ALADIN SIMUNDAC and MIGUEL OLIVAN, respondents.

PANGANIBAN, J.: Is a contract to sell a real property involved in restate proceedings valid and binding without the approval of the probate court? Statement of the Case

This is the main question raised in this petition for review before us, assailing the Decision of the Court of 2 3 Appeals in CA-GR CV No. 41994 promulgated on February 6, 1996 and its Resolution dated July 19, 1996. The challenged Decision disposed as follows: WHEREFORE, premises considered, the order of the lower court dismissing the complaint is SET ASIDE and judgment is hereby rendered declaring the CONTRACT TO SELL executed by appellee in favor of appellants as valid and binding, subject to the result of the administration proceedings of the testate Estate of Demetrio Carpena. SO ORDERED.
4

Petitioner's Motion for Reconsideration was denied in the challenged Resolution. The Facts

The antecedent facts, as succinctly narrated by Respondent Court of Appeals, are: In a complaint for specific performance filed with the court a quo [herein private respondents] Aladin Simundac and Miguel Oliven alleged that [herein petitioner] Natalia Carpena Opulencia executed in their favor a "CONTRACT TO SELL" Lot 2125 of the Sta. Rosa Estate, consisting of 23,766 square meters located in Sta. Rosa, Laguna at P150.00 per square meter; that plaintiffs paid a downpayment of P300,000.00 but defendant, despite demands, failed to comply with her obligations under the contract. [Private respondents] therefore prayed that [petitioner] be ordered to perform her contractual obligations and to further pay damages, attorney's fee and litigation expenses. In her traverse, [petitioner] admitted the execution of the contract in favor of plaintiffs and receipt of P300,000.00 as downpayment. However, she put forward the following affirmative defenses: that the property subject of the contract formed part of the Estate of Demetrio Carpena (petitioner's father), in respect of which a petition for probate was filed with the Regional Trial Court, Branch 24, Bian, Laguna; that at the time the contract was executed, the parties were aware of the pendency of the probate proceeding; that the contract to sell was not approved by the probate court; that realizing the nullity of the contract [petitioner] had offered to return the downpayment received from [private respondents], but the latter refused to accept it; that [private respondents] further failed to provide funds for the tenant who demanded P150,00.00 in payment of his tenancy rights on the land; that [petitioner] had chosen to rescind the contract. At the pre-trial conference the parties stipulated on [sic] the following facts: 1. That on February 3, 1989, [private respondents] and [petitioner] entered into a contract to sell involving a parcel of land situated in Sta. Rosa, Laguna, otherwise known as Lot No. 2125 of the Sta. Rosa Estate. 2. That the price or consideration of the said sell [sic] is P150.00 per square meters; 3. That the amount of P300,000.00 had already been received by [petitioner]; 4. That the parties have knowledge that the property subject of the contract to sell is subject of the probate proceedings;

5. That [as] of this time, the probate Court has not yet issued an order either approving or denying the said sale. (p. 3, appealed Order of September 15, 1992, pp. 109-112, record). [Private respondents] submitted their evidence in support of the material allegations of the complaint. In addition to testimonies of witnesses, [private respondents] presented the following documentary evidences: (1) Contract to Sell (Exh A); (2) machine copy of the last will and testament of Demetrio Carpena (defendant's father) to show that the property sold by defendant was one of those devised to her in said will (Exh B); (3) receipts signed by defendant for the downpayment in the total amount of P300,000.00 (Exhs C, D & E); and (4) demand letters sent to defendant (Exhs F & G). It appears that [petitioner], instead of submitting her evidence, filed a Demurrer to Evidence. In essence, defendant maintained that the contract to sell was null and void for want of approval by the probate court. She further argued that the contract was subject to a suspensive condition, which was the probate of the will of defendant's father Demetrio Carpena. An Opposition was filed by [private respondents]. It appears further that in an Order dated December 15, 1992 the court a quo granted the demurrer to evidence and dismissed the complaint. It justified its action in dismissing the complaint in the following manner: It is noteworthy that when the contract to sell was consummated, no petition was filed in the Court with notice to the heirs of the time and place of hearing, to show that the sale is necessary and beneficial. A sale of properties of an estate as beneficial to the interested parties must comply with the requisites provided by law, (Sec. 7, Rule 89, Rules of Court) which are mandatory, and without them, the authority to sell, the sale itself, and the order approving it, would be null and void ab initio. (Arcilla vs. David, 77 Phil. 718, Gabriel, et al., vs. Encarnacion, et al., L-6736, May 4, 1954; Bonaga vs. Soler, 2 Phil. 755) Besides, it is axiomatic that where the estate of a deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the probate Court. (Estate of Obave, vs. Reyes, 123 SCRA 767). As held by the Supreme Court, a decedent's representative (administrator) is not estopped from questioning the validity of his own void deed purporting to convey land. (Bona vs. Soler, 2 Phil, 755). In the case at bar, the [petitioner,] realizing the illegality of the transaction[,] has interposed the nullity of the contract as her defense, there being no approval from the probate Court, and, in good faith offers to return the money she received from the [private respondents]. Certainly, the administratrix is not estop[ped] from doing so and the action to declare the inexistence of contracts do not prescribe. This is what precipitated the filing of [petitioner's] demurrer to 6 evidence. The trial court's order of dismissal was elevated to the Court of Appeals by private respondents who alleged: 1. The lower court erred in concluding that the contract to sell is null and void, there being no approval of the probate court. 2. The lower court erred in concluding that [petitioner] in good faith offers to return the money to [private respondents]. 3. The lower court erred in concluding that [petitioner] is not under estoppel to question the validity of the contract to sell. 4. The lower court erred in not ruling on the consideration of the contract to sell which is tantamount to plain unjust enrichment of [petitioner] at the expense of [private respondents].

Public Respondent's Ruling Declaring the Contract to Sell valid, subject to the outcome of the testate proceedings on Demetrio Carpena's estate, the appellate court set aside the trial court's dismissal of the complaint and correctly ruled as follows: It is apparent from the appealed order that the lower court treated the contract to sell executed by appellee as one made by the administratrix of the Estate of Demetrio Carpena for the benefit of the estate. Hence, its main reason for voiding the contract in question was the absence of the probate court's approval. Presumably, what the lower court had in mind was the sale of the estate or part thereof made by the administrator for the benefit of the estate, as authorized under Rule 89 of the Revised Rules of Court, which requires the approval of the probate court upon application therefor with notice to the heirs, devisees and legatees. However, as adverted to by appellants in their brief, the contract to sell in question is not covered by Rule 89 of the Revised Rules of Court since it was made by appellee in her capacity as an heir, of a property that was devised to her under the will sought to be probated. Thus, while the document inadvertently stated that appellee executed the contract in her capacity as "executrix and administratrix" of the estate, a cursory reading of the entire text of the contract would unerringly show that what she undertook to sell to appellants was one of the "other properties given to her by her late father," and more importantly, it was not made for the benefit of the estate but for her own needs. To illustrate this point, it is apropos to refer to the preambular or preliminary portion of the document, which reads: WHEREAS, the SELLER is the lawful owner of a certain parcel of land, which is more particularly described as follows: xxx xxx xxx xxx xxx xxx xxx xxx xxx WHEREAS, the SELLER suffers difficulties in her living and has forced to offer the sale of the above-described property, "which property was only one among the other properties given to her by her late father," to anyone who can wait for complete clearance of the court on the Last Will Testament of her father. WHEREAS, the SELLER in order to meet her need of cash, has offered for sale the said property at ONE HUNDRED FIFTY PESOS (150.00) Philippine Currency, per square meter unto the BUYERS, and with this offer, the latter has accepted to buy and/or purchase the same, less the area for the road and other easements indicated at the back of Transfer Certificate of Title No. 2125 duly confirmed after the survey to be conducted by the BUYER's Licensed Geodetic Engineer, and whatever area [is] left. (Emphasis added). To emphasize, it is evident from the foregoing clauses of the contract that appellee sold Lot 2125 not in her capacity as executrix of the will or administratrix of the estate of her father, but as an heir and more importantly as owner of said lot which, along with other properties, was devised to her under the will sought to be probated. That being so, the requisites stipulated in Rule 89 of the Revised Rules of Court which refer to a sale made by the administrator for the benefit of the estate do not apply. xxx xxx xxx

It is noteworthy that in a Manifestation filed with this court by appellants, which is not controverted by appellee, it is mentioned that the last will and testament of Demetrio Carpena was approved in a final judgment rendered in Special Proceeding No. B-979 by the Regional Trial Court, Branch 24 Bian, Laguna. But of course such approval does not terminate the proceeding[s] since the settlement of the estate will ensue. Such proceedings will consist, among others, in the issuance by the court of a notice to creditors (Rule 86), hearing of money claims and payment of taxes and estate debts (Rule 88) and distribution of the residue to the heirs or persons entitled thereto (Rule 90). In effect, the final execution of the deed of sale itself upon appellants' payment of the balance of the purchase price will have to wait for the settlement or termination of the administration proceedings of the Estate of Demetrio Carpena. Under the foregoing premises, what the trial court should have done with the complaint was not to dismiss it but to simply put on hold further proceedings until such time that the estate or its residue will be distributed in accordance with the approved will. The rule is that when a demurrer to the evidence is granted by the trial court but reversed on appeal, defendant loses the right to adduce his evidence. In such a case, the appellate court will decide the controversy on the basis of plaintiff's evidence. In the case at bench, while we find the contract to sell valid and binding between the parties, we cannot as yet order appellee to perform her obligations under the contract because the result of the administration proceedings of the testate Estate of Demetrio Carpena has to be awaited. Hence, we shall confine our adjudication to merely declaring the validity of the questioned Contract to Sell. Hence, this appeal.
8

The Issue Petitioner raises only one issue: Whether or not the Contract to Sell dated 03 February 1989 executed by the [p]etitioner and [p]rivate [r]espondent[s] without the requisite probate court approval is valid. The Court's Ruling The petition has no merit. Contract to Sell Valid In a nutshell, petitioner contends that "where the estate of the deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of 9 the Probate Court." She maintains that the Contract to Sell is void because it was not approved by the probate court, as required by Section 7, Rule 89 of the Rules of Court: Sec. 7. Regulations for granting authority to sell, mortgage, or otherwise encumber estate. The court having jurisdiction of the estate of the deceased may authorize the executor or administrator to sell, mortgage, or otherwise encumber real estate, in cases provided by these rules and when it appears necessary or beneficial, under the following regulations: xxx xxx xxx Insisting that the above rule should apply to this case, petitioner argues that the stipulations in the Contract to Sell require her to act in her capacity as an executrix or administratrix. She avers that her obligation to eject tenants 10 pertains to the administratrix or executrix, the estate being the landlord of the said tenants. Likewise demonstrating that she entered into the contract in her capacity as executor is the stipulation that she must effect

the conversion of subject land from irrigated rice land to residential land and secure the necessary clearances from government offices. Petitioner alleges that these obligations can be undertaken only by an executor or 11 administrator of an estate, and not by an heir. The Court is not persuaded. As correctly ruled by the Court of Appeals, Section 7 of Rule 89 of the Rules of Court is not applicable, because petitioner entered into the Contract to Sell in her capacity as an heiress, not as an executrix or administratrix of the estate. In the contract, she represented herself as the "lawful owner" and seller 12 of the subject parcel of land. She also explained the reason for the sale to be "difficulties in her living" 13 conditions and consequent "need of cash." These representations clearly evince that she was not acting on behalf of the estate under probate when she entered into the Contract to Sell. Accordingly, the jurisprudence cited by petitioners has no application to the instant case. We emphasize that hereditary rights are vested in the heir or heirs from the moment of the decedent's 14 death. Petitioner, therefore, became the owner of her hereditary share the moment her father died. Thus, the lack of judicial approval does not invalidate the Contract to Sell, because the petitioner has the substantive right to 15 16 sell the whole or a part of her share in the estate of her late father. Thus, in Jakosalem vs. Rafols, the Court resolved an identical issue under the old Civil Code and held: Art. 440 of the Civil Code provides that "the possession of hereditary property is deemed to be transmitted to the heir without interruption from the instant of the death of the decedent, in case the inheritance be accepted." And Manresa with reason states that upon the death of a person, each of his heirs "becomes the undivided owner of the whole estate left with respect to the part or portion which might be adjudicated to him, a community of ownership being thus formed among the coowners of the estate while it remains undivided." . . . And according to article 399 of the Civil Code, every part owner may assign or mortgage his part in the common property, and the effect of such assignment or mortgage shall be limited to the portion which may be allotted him in the partition upon the dissolution of the community. Hence, where some of the heirs, without the concurrence of the others, sold a property left by their deceased father, this Court, speaking thru its then Chief Justice Cayetano Arellano, said that the sale was valid, but that the effect thereof was limited to the share which may be allotted to the vendors upon the partition of the estate. Administration of the Estate Not Prejudiced by the Contract to Sell Petitioner further contends that "[t]o sanction the sale at this stage would bring about a partial distribution of the 17 decedent's estate pending the final termination of the testate proceedings." This becomes all the more significant in the light of the trial court's finding, as stated in its Order dated August 20, 1997, that "the legitimate 18 of one of the heirs has been impaired." Petitioner's contention is not convincing. The Contract to Sell stipulates that petitioner's offer to sell is contingent 19 on the "complete clearance of the court on the Last Will Testament of her father." Consequently, although the Contract to Sell was perfected between the petitioner and private respondents during the pendency of the probate proceedings, the consummation of the sale or the transfer of ownership over the parcel of land to the private respondents is subject to the full payment of the purchase price and to the termination and outcome of the testate proceedings. Therefore, there is no basis for petitioner's apprehension that the Contract to Sell may result in a premature partition and distribution of the properties of the estate. Indeed, it is settled that "the sale made by an heir of his share in an inheritance, subject to the pending administration, in no wise stands in the way of such 20 administration." Estoppel Finally, petitioner is estopped from backing out of her representations in her valid Contract to Sell with private respondents, from whom she had already received P300,000 as initial payment of the purchase price. Petitioner

may not renege on her own acts and representations, to the prejudice of the private respondents who have relied 21 on them. Jurisprudence teaches us that neither the law nor the courts will extricate a party from an unwise or undesirable contract he or she entered into with all the required formalities and with full awareness of its 22 consequences. WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals AFFIRMED. Costs against petitioner. SO ORDERED.

G.R. No. 157451. December 16, 2005.* LETICIA VALMONTE ORTEGA, petitioner, vs. JOSEFINA C. VALMONTE, respondent. Civil Law; Wills; The party challenging the will bears the burden of proving the existence of fraud at the time of its execution; The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud.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. We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its execution. The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud. Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence of fraud was ever presented. Same; Same; The omission of some relatives does not affect the due execution of a will .It is a settled doctrine that the omission of some relatives does not affect the due execution of a will. 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. Same; Same; 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 be executed and acknowledged on the same occasion. 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. 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. Furthermore, the testator and the witnesses must acknowledge the will before a notary public. In any event, we agree with the CA that the variance in the dates of the will as to its suppose d execution and attestation was satisfactorily and persuasively explained by the notary public and the instrumental witnesses. Same; Same; The testimonies of the three subscribing witnesses and the notary are credible evidence of its due execution.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. 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. Same; Same; To be considered of sound mind, things that the testator must have the ability to know. 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 obj ects 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. Same; Same; Testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind.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. [Ortega vs. Valmonte, 478 SCRA 247(2005)]

LETICIA VALMONTE ORTEGA,

G.R. No. 157451 Petitioner, Present:

Panganiban, J., Chairman, - versus Sandoval-Gutierrez, Corona, Carpio Morales, and Garcia, JJ

JOSEFINA C. VALMONTE, Respondent.

Promulgated:

December 16, 2005 x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

DECISION

PANGANIBAN, J.:

he 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 T 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[1] under Rule 45 of the Rules of Court, seeking to reverse and set aside the December 12, 2002 Decision[2] and the March 7, 2003 Resolution[3] 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 [4] quo for further and concomitant proceedings.

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 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 follow-described 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 of my deceased sister, Ciriaca Valmonte and myself as co-owners, 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 15 day of June 1983 in Quezon City, Philippines.

th

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 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 corroborate d 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 Josef ina 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 [8] subject will.

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

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) threats;

If it was executed through force or under duress, or the influence of fear, or

(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 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:

You typed this document exhibit C, specifying the date June 15 when the testator and his witnesses were supposed to be in your office?

Yes sir.

Q A

On June 15, 1983, did the testator and his witnesses come to your house? They did as of agreement but unfortunately, I was out of town.

xxx

xxx

xxx

The document has been acknowledged on August 9, 1983 as per acknowledgement appearing therein. Was this the actual date when the document was acknowledged? Yes sir.

What about the date when the testator and the three witnesses affixed their respective signature on the first and second pages of exhibit C? On that particular date when it was acknowledged, August 9, 1983.

Why did you not make the necessary correction on the date appearing on the body of the document as well as the attestation clause? 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:

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? We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was th first week of June and Atty. Sarmiento told us to return on the 15 of June but when we returned, Atty. Sarmiento was not there.

Q A

When you did not find Atty. Sarmiento on June 15, 1983, did you again go back? We returned on the 9 of August and there we signed.
th

This August 9, 1983 where you said it is there where you signed, who were your companions? The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:

Why did you have to go to the office of Atty. Floro Sarmiento, three times?

xxx

xxx

xxx

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 th Atty. Sarmiento said was that he will go back on the 15 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 A

When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired? The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Q A

And on August 9, 1983 did you go back to the house of Atty. Sarmiento? Yes, Sir.

Q A

For what purpose? Our purpose is just to sign the will.

Were you able to sign the will you mentioned?

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 tim e 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 t he 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 [26] necessarily require that a person shall actually be insane or of unsound mind."

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.

Testate Estate of the Late Alipio Abada vs. Abaja G.R. No. 147145. January 31, 2005.* TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-NOBLE, petitioner, vs. ALIPIO ABAJA and NOEL ABELLAR, respondents. Succession; Wills; Requisites; Attestation Clause; A will, should not be rejected where its attestation clause serves the purpose of the law.x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be applicable to all cases. More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the will, and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. x x x. An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts attending the execution of the will, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still be proved. (Thompson on Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected where its attestation clause serves the purpose of the law. x x x Same; Same; Same; Same; Evidence aliunde not allowed to fill void in any part of the document or supply missing details. [T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us _______________

* FIRST DIVISION. 265

VOL. 450, JANUARY 31, 2005 265 Testate Estate of the Late Alipio Abada vs. Abaja

when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results. Same; Same; Same; Same; Precision of language in the drafting of the attestation clause is desirable, but not imperative. Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the language employed it can reasonably be deduced that the attestation clause fulfills what the law expects of it. [Testate Estate of the Late Alipio Abada vs. Abaja, 450 SCRA 264(2005)]

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 147145 January 31, 2005

TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-NOBLE, petitioner, vs. ALIPIO ABAJA and NOEL ABELLAR, respondents. DECISION CARPIO, J.: The Case Before the Court is a petition for review assailing the Decision of the Court of Appeals of 12 January 2001 in CA3 G.R. CV No. 47644. The Court of Appeals sustained the Resolution of the Regional Trial Court of Kabankalan, Negros Occidental, Branch 61 ("RTC-Kabankalan"), admitting to probate the last will and testament of Alipio Abada ("Abada"). The Antecedent Facts Abada died sometime in May 1940. His widow Paula Toray ("Toray") died sometime in September 1943. Both died without legitimate children. On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then Court of First Instance of Negros Occidental 5 (now RTC-Kabankalan) a petition, docketed as SP No. 070 (313-8668), for the probate of the last will and testament ("will") of Abada. Abada allegedly named as his testamentary heirs his natural children Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio is the son of Eulogio. Nicanor Caponong ("Caponong") opposed the petition on the ground that Abada left no will when he died in 1940. Caponong further alleged that the will, if Abada really executed it, should be disallowed for the following reasons: (1) it was not executed and attested as required by law; (2) it was not intended as the last will of the testator; and (3) it was procured by undue and improper pressure and influence on the part of the beneficiaries. Citing the same grounds invoked by Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian, Paz, Evangeline,
4 1 2

Geronimo, Humberto, Teodora and Elena Abada ("Joel Abada, et al."), and Levi, Leandro, Antonio, Florian, Hernani and Carmela Tronco ("Levi Tronco, et al."), also opposed the petition. The oppositors are the nephews, nieces and grandchildren of Abada and Toray. On 13 September 1968, Alipio filed another petition before the RTC-Kabankalan, docketed as SP No. 071 (3128669), for the probate of the last will and testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al. opposed the petition on the same grounds they cited in SP No. 070 (313-8668). On 20 September 1968, Caponong filed a petition before the RTC-Kabankalan, docketed as SP No. 069 (309), praying for the issuance in his name of letters of administration of the intestate estate of Abada and Toray. In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the will of Toray. Since the oppositors did not file any motion for reconsideration, the order allowing the probate of Torays will became final 8 and executory. In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda Caponong-Noble ("Caponong9 Noble") Special Administratrix of the estate of Abada and Toray. Caponong-Noble moved for the dismissal of the petition for probate of the will of Abada. The RTC-Kabankalan denied the motion in an Order dated 20 August 10 1991. Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas discovered that in an Order dated 16 March 1992, former Presiding Judge Edgardo Catilo had already submitted the case for decision. Thus, the RTC-Kabankalan rendered a Resolution dated 22 June 1994, as follows: There having been sufficient notice to the heirs as required by law; that there is substantial compliance with the formalities of a Will as the law directs and that the petitioner through his testimony and the deposition of Felix Gallinero was able to establish the regularity of the execution of the said Will and further, there being no evidence of bad faith and fraud, or substitution of the said Will, the Last Will and Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate. As prayed for by counsel, Noel Abbellar is appointed administrator of the estate of Paula Toray who shall discharge his duties as such after letters of administration shall have been issued in his favor and after taking his oath and filing a bond in the amount of Ten Thousand (P10,000.00) Pesos. Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall continue discharging her duties as such until further orders from this Court. SO ORDERED.
12 11 7 6

The RTC-Kabankalan ruled on the only issue raised by the oppositors in their motions to dismiss the petition for probate, that is, whether the will of Abada has an attestation clause as required by law. The RTC-Kabankalan further held that the failure of the oppositors to raise any other matter forecloses all other issues. Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal. In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the Resolution of the RTCKabankalan. The appellate court found that the RTC-Kabankalan properly admitted to probate the will of Abada. Hence, the present recourse by Caponong-Noble. The Issues The petition raises the following issues:

1. What laws apply to the probate of the last will of Abada; 2. Whether the will of Abada requires acknowledgment before a notary public;
13

3. Whether the will must expressly state that it is written in a language or dialect known to the testator; 4. Whether the will of Abada has an attestation clause, and if so, whether the attestation clause complies with the requirements of the applicable laws; 5. Whether Caponong-Noble is precluded from raising the issue of whether the will of Abada is written in a language known to Abada; 6. Whether evidence aliunde may be resorted to in the probate of the will of Abada. The Ruling of the Court The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to probate the will of Abada. The Applicable Law Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of 1889 or the Old Civil 14 Code, and Act No. 190 or the Code of Civil Procedure which governed the execution of wills before the enactment of the New Civil Code. The matter in dispute in the present case is the attestation clause in the will of Abada. Section 618 of the Code 15 of Civil Procedure, as amended by Act No. 2645, governs the form of the attestation clause of Abadas 16 will. Section 618 of the Code of Civil Procedure, as amended, provides: SEC. 618. Requisites of will. No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be written in the language or dialect known by the testator and signed by him, or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of 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 of each other. Requisites of a Will under the Code of Civil Procedure Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following: (1) The will must be written in the language or dialect known by the testator; (2) The will must be signed by the testator, or by the testators name written by some other person in his presence, and by his express direction; (3) The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of each other;
17

(4) The testator or the person requested by him to write his name and the instrumental witnesses of the will must sign each and every page of the will on the left margin; (5) The pages of the will must be numbered correlatively in letters placed on the upper part of each sheet; (6) 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 of the will, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the witnesses witnessed and signed the will and all pages of the will in the presence of the testator and of each other. Caponong-Noble asserts that the will of Abada does not indicate that it is written in a language or dialect known to the testator. Further, she maintains that the will is not acknowledged before a notary public. She cites in particular Articles 804 and 805 of the Old Civil Code, thus: Art. 804. Every will must be in writing and executed in [a] language or dialect known to the testator. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. xxx
19 18

Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code. Article 804 of the Old Civil Code is about the rights and obligations of administrators of the property of an absentee, while Article 806 of the Old Civil Code defines a legitime. Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the New Civil Code is taken from 20 Section 618 of the Code of Civil Procedure. Article 806 of the New Civil Code is taken from Article 685 of the 21 Old Civil Code which provides: Art. 685. The notary and two of the witnesses who authenticate the will must be acquainted with the testator, or, should they not know him, he shall be identified by two witnesses who are acquainted with him and are known to the notary and to the attesting witnesses. The notary and the witnesses shall also endeavor to assure themselves that the testator has, in their judgment, the legal capacity required to make a will. Witnesses authenticating a will without the attendance of a notary, in cases falling under Articles 700 and 701, are also required to know the testator. However, the Code of Civil Procedure repealed Article 685 of the Old Civil Code. Under the Code of Civil 23 Procedure, the intervention of a notary is not necessary in the execution of any will. Therefore, Abadas will does not require acknowledgment before a notary public.1awphi1.nt Caponong-Noble points out that nowhere in the will can one discern that Abada knew the Spanish language. She alleges that such defect is fatal and must result in the disallowance of the will. On this issue, the Court of Appeals held that the matter was not raised in the motion to dismiss, and that it is now too late to raise the issue on 24 appeal. We agree with Caponong-Noble that the doctrine of estoppel does not apply in probate proceedings. In addition, the language used in the will is part of the requisites under Section 618 of the Code of Civil Procedure and the Court deems it proper to pass upon this issue. Nevertheless, Caponong-Nobles contention must still fail. There is no statutory requirement to state in the will 25 itself that the testator knew the language or dialect used in the will. This is a matter that a party may establish by 26 proof aliunde. Caponong-Noble further argues that Alipio, in his testimony, has failed, among others, to show that Abada knew or understood the contents of the will and the Spanish language used in the will. However, Alipio testified that Abada used to gather Spanish-speaking people in their place. In these gatherings, Abada and his 27 companions would talk in the Spanish language. This sufficiently proves that Abada speaks the Spanish language.
22

The Attestation Clause of Abadas Will A scrutiny of Abadas will shows that it has an attestation clause. The attestation clause of Abadas will reads: Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen izquierdo de todas y cada una de las hojas del mismo. Y en testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del testador al pie de este documento y en el margen izquierdo de todas y cada una de las dos hojas de que esta compuesto el mismo, las cuales estan paginadas correlativamente con las letras "UNO" y "DOS en la parte 28 superior de la carrilla. Caponong-Noble proceeds to point out several defects in the attestation clause. Caponong-Noble alleges that the attestation clause fails to state the number of pages on which the will is written. The allegation has no merit. The phrase "en el margen izquierdo de todas y cada una de las dos hojas de que esta compuesto el mismo" which means "in the left margin of each and every one of the two pages consisting of the same" shows that the will consists of two pages. The pages are numbered correlatively with the letters "ONE" and "TWO" as can be gleaned from the phrase "las cuales estan paginadas correlativamente con las letras "UNO" y "DOS." Caponong-Noble further alleges that the attestation clause fails to state expressly that the testator signed the will and its every page in the presence of three witnesses. She then faults the Court of Appeals for applying to the 29 present case the rule on substantial compliance found in Article 809 of the New Civil Code. The first sentence of the attestation clause reads: "Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen izquierdo de todas y cada una de las hojas del mismo ." The English translation is: "Subscribed and professed by the testator Alipio Abada as his last will and testament in our presence, the testator having also signed it in our presence on the left margin of each and every one of the pages of the same." The attestation clause clearly states that Abada signed the will and its every page in the presence of the witnesses. However, Caponong-Noble is correct in saying that the attestation clause does not indicate the number of witnesses. On this point, the Court agrees with the appellate court in applying the rule on substantial compliance in determining the number of witnesses. While the attestation clause does not state the number of witnesses, a close inspection of the will shows that three witnesses signed it. This Court has applied the rule on substantial compliance even before the effectivity of the New Civil Code. 30 InDichoso de Ticson v. De Gorostiza, the Court recognized that there are two divergent tendencies in the law on wills, one being based on strict construction and the other on liberal construction. In Dichoso, the Court noted 31 that Abangan v. Abangan, the basic case on the liberal construction, is cited with approval in later decisions of the Court. In Adeva vda. De Leynez v. Leynez, the petitioner, arguing for liberal construction of applicable laws, enumerated a long line of cases to support her argument while the respondent, contending that the rule on strict construction should apply, also cited a long series of cases to support his view. The Court, after examining the cases invoked by the parties, held: x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be applicable to all cases. More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the will, and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. x x x.
32

An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts attending the execution of the will, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still be proved. (Thompson on Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected where its 33 attestation clause serves the purpose of the law. x x x 1a\^/phi1.net We rule to apply the liberal construction in the probate of Abadas will. Abadas will c learly shows four signatures: that of Abada and of three other persons. It is reasonable to conclude that there are three witnesses to the will. The question on the number of the witnesses is answered by an examination of the will itself and without the need for presentation of evidence aliunde. The Court explained the extent and limits of the rule on liberal construction, thus: [T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision.They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself.l^vvphi1.net They only permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law . This clear, sharp limitation eliminates uncertainty and ought to banish any fear of 34 dire results. (Emphasis supplied) The phrase "en presencia de nosotros" or "in our presence" coupled with the signatures appearing on the will itself and after the attestation clause could only mean that: (1) Abada subscribed to and professed before the three witnesses that the document was his last will, and (2) Abada signed the will and the left margin of each page of the will in the presence of these three witnesses. Finally, Caponong-Noble alleges that the attestation clause does not expressly state the circumstances that the witnesses witnessed and signed the will and all its pages in the presence of the testator and of each other. This Court has ruled: Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the language employed it can 35 reasonably be deduced that the attestation clause fulfills what the law expects of it. The last part of the attestation clause states "en testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del testador." In English, this means "in its witness, every one of us also signed in our presence and of the testator." This clearly shows that the attesting witnesses witnessed the signing of the will of the testator, and that each witness signed the will in the presence of one another and of the testator. WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644. SO ORDERED.

No. L-22797. September 22, 1966. TESTACY OF MAXIMA SANTOS VDA. DE BLAS. ROSALINA SANTOS (Executrix), petitioner and appellee, vs. FLORA BLAS DE BUENAVENTURA (Legatee), oppositor and appellant. Wills; Probate proceedings; Effect of timely withdrawal of opposition to the probate of a will which contains a "no contest and forfeiture" clause.Where after realizing her mistake in contesting the will. a mistake committed in good faith because grounded on strong doubts. appellant withdrew her opposition and joined the appellee in the latter's petition for the probate of the will, appellant must not now be penalized for rectifying her error. Said act of withdrawing her opposition before she had rested her case contributed to the speedy probate of the will. Since the withdrawal came before she had rested her case, it precluded the defeat of the probate upon the strength of Flora's (appellant's) evidence. Through said withdrawal, Flora conformed to the testatrix's wish that her dispositions of her properties under the will be carried out. It follows that, taken as a whole, Flora's actuations served rather than violated the testatrix's intention. She did not therefore violate the "no-contest and forfeiture" clause of the will. Resolution amending decision: Settlement of estate of deceased persons; Legatee may recover fruits and income of property included in a devise of specific thing although not expressly sought in petition.Although in her petition for delivery of a specific legacy, appellant did not expressly seek recovery of the fruits or rents of the property given to her in devise, she should receive the said fruits or rents. Article 948 of the New Civil Code provides that a devise of a specific thing includes its fruits and income accruing after the testator's death. And Article 951 of the same Code provides that these fruits and income shall be delivered with the thing devised. Furthermore, fruits or rents being, strictly speaking, accessions (Arts. 441 and 442, New Civil Code), Article 1166 of the Code, which provides that the "obligation 16 give a determinate thing includes that of delivering all its accessions and accessories, even though they may not have been mentioned," applies. Same; Order to deliver legacy or devise is necessary before there can be default or before interest on fruits can be collected.Interest does not run, unless stipulated, where there is yet no delay (Articles 1169, 2209, Civil Code). In settlement proceedings there is no delay on the part of the administratrix until after the court orders her to make delivery of the legacy or devise (Ongpin vs. Rivera, 44 Phil. 808). Where the court a quo had not issued such an order, the appellee has not incurred in delay and is thus not liable for interest. Same; Assertion or interest adverse to that of the testatrix.Appellee is not the proper party to contend that the rulings of this Court in two final decisions are to the effect that the properties therein litigated, which allegedly included the property involved in the instant case, belonged to the testatrix only to the extent of 65.38-2/3%, the rest being owned by her husband. Representing as she does the testatrix, she cannot assert an interest adverse to that of the latter, even when those to whom said interest pertains do not advance it, Wills; Probate is conclusive on due execution and authenticity.Where a will has already been admitted to probate, its due execution and authenticity are deemed established for purposes of settlement proceedings. Fraud; Factual issue.Fraud is a factual issue that must be supported by substantial evidence. Attorney's fees.Attorney's fees in this case were granted under paragraph 11, Article 2208 of the New Civil Code. [Santos vs. Buenaventura, 18 SCRA 47(1966)]

G.R. No. 174975. January 20, 2009.*

LUISA KHO MONTAER, ALEJANDRO MONTAER, JR., LILLIBETH MONTAER-BARRIOS, AND RHODORA ELEANOR MONTAER-DALUPAN, petitioners, vs. SHARIA DISTRICT COURT, FOURTH SHARIA JUDICIAL DISTRICT, MARAWI CITY, LILING DISANGCOPAN, AND ALMAHLEEN LILING S. MONTAER, respondents. Actions; Pleadings and Practice; The determination of the nature of an action or proceeding is controlled by the averments and character of the relief sought in the complaint or petition the designation given by parties to their own pleadings does not necessarily bind the courts to treat it according to the said designation. Article 143(b) of Presidential Decree No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides that the Sharia District Courts have exclusive original jurisdiction over the settlement of the estate of deceased Muslims: ARTICLE 143. Original jurisdiction.(1) The Sharia District Court shall have exclusive original jurisdiction over: x x x x (b) All cases involving disposition, distribution and settlement of the estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property. The determination of the nature of an action or proceeding is controlled by the averments and character of the relief sought in the complaint or petition. The designation given by parties to their own pleadings does not necessarily bind the courts to treat it according to the said designation. Rather than rel y on a falsa descriptio or defective caption, courts are guided by the substantive averments of the pleadings. Same; Same; Jurisdiction; The rationale behind the rule that jurisdiction of a court over the nature of the action and its subject matter does not depend upon the defenses set forth in an answer or a motion to dismiss applies to an answer with a motion to dismiss.We cannot agree with the contention of the petitioners that the district court does not have jurisdiction over the case because of an allegation in their answer with a motion to dismiss that Montaer, Sr. is not a Muslim. Jurisdiction of a court over the nature of the action and its subject matter does not depend upon the defenses set forth in an answer or a motion to dismiss. Otherwise, jurisdiction would depend almost entirely on the defendant or result in having a case either thrown out of court or its proceedings unduly delayed by simple stratagem. Indeed, the defense of lack of jurisdiction which is dependent on a question of fact does not render the court to lose or be deprived of its jurisdiction. The same rationale applies to an answer with a motion to dismiss. In the case at bar, the Sharia District Cou rt is not deprived of jurisdiction simply because petitioners raised as a defense the allegation that the deceased is not a Muslim. The Sharia District Court has the authority to hear and receive evidence to determine whether it has jurisdiction, which requires an a priori determination that the deceased is a Muslim. If after hearing, the Sharia District Court determines that the deceased was not in fact a Muslim, the district court should dismiss the case for lack of jurisdiction. Special Proceedings; Settlement of Estates; Words and Phrases; A special proceeding as a remedy by which a party seeks to establish a status, a right, or a particular fact; In a petition for the issuance of letters of administration, settlement, and distribution of estate, the applicants seek to establish the fact of death of the decedent and later to be duly recognized as among the decedents heirs, which would allow them to exercise their right to participate in the settlement and liquidation of the estate of the decedent. The underlying assumption in petitioners second argument, that the proceed ing before the Sharia District Court is an ordinary civil action against a deceased person, rests on an erroneous understanding of the proceeding before the court a quo. Part of the confusion may be attributed to the proceeding before the Sharia District Court, where the parties were designated either as plaintiffs or defendants and the case was denominated as a special civil action. We reiterate that the proceedings before the court a quo are for the issuance of letters of administration, settlement, and distribution of the estate of the deceased, which is a special proceeding. Section 3(c) of the Rules of Court (Rules) defines a special proceeding as a remedy by which a party seeks to establish a status, a right, or a particular fact. This Court has applied the Rules, particularly the rules on special proceedings, for the settlement of the estate of a deceased Muslim. In a petition for the issuance of letters of administration, settlement, and distribution of estate, the applicants seek to establish the fact of death of the decedent and later to be duly recognized as among the decedents heirs, which would allow them to exercise their right to participate in the settlement and liquidation of the estate of the

decedent. Here, the respondents seek to estab lish the fact of Alejandro Montaer, Sr.s death and, subsequently, for private respondent Almahleen Liling S. Montaer to be recognized as among his heirs, if such is the case in fact. Same; Same; Parties; Unlike a civil action which has definite adverse parties, a special proceeding has no definite adverse party.Petitioners argument, that the prohibition against a decedent or his estate from being a party defendant in a civil action applies to a special proceeding such as the settlement of the estate of the deceased, is misplaced. Unlike a civil action which has definite adverse parties, a special proceeding has no definite adverse party. The definitions of a civil action and a special proceeding, respectively, in the Rules illustrate this difference. A civil action, in which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong necessarily has definite adverse parties, who are either the plaintiff or defendant. On the other hand, a special proceeding , by which a party seeks to establish a status, right, or a particular fact, has one definite party, who petitions or applies for a declaration of a status, right, or particular fact, but no definite adverse party. In the case at bar, it bears emphasis that the estate of the decedent is not being sued for any cause of action. As a special proceeding, the purpose of the settlement of the estate of the decedent is to determine all the assets of the estate, pay its liabilities, and to distribute the residual to those entitled to the same. Docket Fees; If the party filing the case paid less than the correct amount for the docket fees because that was the amount assessed by the clerk of court, the responsibility of making a deficiency assessment lies with the same clerk of courtthe lower court concerned will not automatically lose jurisdiction, because of a partys reliance on the clerk of courts insufficient assessment of the docket fees.Filing the appropriate initiatory pleading and the payment of the prescribed docket fees vest a trial court with jurisdiction over the subject matter. If the party filing the case paid less than the correct amount for the docket fees because that was the amount assessed by the clerk of court, the responsibility of making a deficiency assessment lies with the same clerk of court. In such a case, the lower court concerned will not automatically lose jurisdiction, because of a partys reliance on the clerk of courts insufficient assessment of the docket fees. As ever y citizen has the right to assume and trust that a public officer charged by law with certain duties knows his duties and performs them in accordance with law, the party filing the case cannot be penalized with the clerk of courts insufficient assessment. However, the party concerned will be required to pay the deficiency. Notice of Hearing; The Supreme Court has upheld a liberal construction specifically of the rules of notice of hearing in cases where a rigid application will result in a manifest failure or misca rriage of justice especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein; To sanction a situation denying the Sharia District Cour t of an opportunity to determine whether it has jurisdiction over a petition for the settlement of the estate of a decedent alleged to be a Muslim because of a lapse in fulfilling the notice requirement will result in a miscarriage of justice. Petitioners fourth argument, that private respondents motion for reconsideration before the Sharia District Court is defective for lack of a notice of hearing, must fail as the unique circumstances in the present case constitute an exception to this requirement. The Rules require every written motion to be set for hearing by the applicant and to address the notice of hearing to all parties concerned. The Rules also provide that no written motion set for hearing shall be acted upon by the court without proof of serv ice thereof. However, the Rules allow a liberal construction of its provisions in order to promote *the+ objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. Moreover, this Court has upheld a liberal construction specifically of the rules of notice of hearing in cases where a rigid application will result in a manifest failure or miscarriage of justice especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein. In these exceptional cases, the Court considers that no party can even claim a vested right in technicalities, and for this reason, cases should, as much as possible, be decided on the merits rather than on technicalities. The case at bar falls under this exception. To deny the Sharia District Court of an opportunity to determine whether it has jurisdiction over a petition for the settlement of the estate of a decedent alleged to be a Muslim would also deny its inherent power as a court to control its process to ensure conformity

with the law and justice. To sanction such a situation simply because of a lapse in fulfilling the notice requirement will result in a miscarriage of justice Same; Probate Proceedings; An exception to the rules on notice of hearing is where it appears that the rights of the adverse party were not affected; In probate proceedings, what the law prohibits is not the absence of previous notice, but the absolute absence thereof and lack of opportunity to be heard.In addition, the present case calls for a liberal construction of the rules on notice of hearing, because the rights of the petitioners were not affected. This Court has held that an exception to the rules on notice of hearing is where it appears that the rights of the adverse party were not affected. The purpose for the notice of hearing coincides with procedural due process, for the court to determine whether the adverse party agrees or objects to the motion, as the Rules do not fix any period within which to file a reply or opposition. In probate proceedings, what the law prohibits is not the absence of previous notice, but the absolute absence thereof and lack of opportunity to be heard. In the case at bar, as evident from the Sharia District Courts order dated January 17, 2006, petitioners counsel received a copy of the motion for reconsideration in question. Petitioners were certainly not denied an opportunity to study the arguments in the said motion as they filed an opposition to the same. Since the Sharia District Court reset the hearing for the motion for reconsideration in the same order, petitioners were not denied the opportunity to object to the said motion in a hearing. Taken together, these circumstances show that the purpose for the rules of notice of hearing, procedural process, was duly observed. Probate Proceedings; Where there is a special proceeding for the settlement of the estate of a decedent that is pending, questions regarding heirship, including prescription in relation to recognition and filiation, should be raised and settled in the said proceeding.Petitioners fifth argument is premature. Again, the Sharia District Court has not yet determined whether it has jurisdiction to settle the estate of the decedent. In the event that a special proceeding for the settlement of the estate of a decedent is pending, questions regarding heirship, including prescription in relation to recognition and filiation, should be raised and settled in the said proceeding. The court, in its capacity as a probate court, has jurisdiction to declare who are the heirs of the decedent. In the case at bar, the determination of the heirs of the decedent depends on an affirmative answer to the question of whether the Sharia District Court has jurisdiction over the estate of the decedent. [Montaner vs. Shairi'a District Court, 576 SCRA 746(2009)] G.R. Nos. 14037172. 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. Succession; Wills; Disinheritance; Maltreatment; 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; Maltreatment of a parent by a child presents a sufficient cause for the disinheritance of the latter.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. Same; Same; Same; Holographic Wills; A holographic will must be entirely written, dated, and signed by the hand of the testator himselfit is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.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 can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latters p roperty, 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. Same; Same; Same; Same; 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; Holographic wills, being usually prepared by one who is not learned in the law, 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.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. 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. 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, the disinheritance cannot be given effect. Same; Same; Same; Same; The law favors testacy over intestacy, and testate proceedings for the settlement of the estate of the decedent take precedence over intestate proceedings; The probate of a will cannot be dispensed with. Considering that the questioned document is Segund os 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. 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. [Seangio vs. Reyes, 508 SCRA 177(2006)]