VDA.

DE MAPA VS CA

FERNAN, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. No. 40448-R
entitled "Paz Garcia Vda. de Mapa, et al. vs. Luis Hidrosollo, et al." reversing the decision of the then Court
of First Instance of Manila in Civil Case No. 59566, bearing the same title.

The antecedent facts of the case are as follows:

On January 16, 1965, petitioners Paz Garcia Vda. de Mapa, et al. instituted Civil Case No. 59566 before the
then Court of First Instance of Manila to recover from the estate of the late Ludovico Hidrosollo, then the
subject of Special Proceedings No. 52229 of the same court, the properties left by the late Concepcion
Mapa de Hidrosollo. They claimed that the deceased Concepcion Mapa de Hidrosollo, in her last will and
testament dated June 2, 1951 and admitted to probate in Special Proceedings No. 46015, instituted
Ludovico Hidrosollo as universal heir to the residue of her estate with the obligation as trustee to hold the
same in trust for petitioners herein who are nephews and nieces of the deceased Concepcion Mapa de
Hidrosollo and for respondents Luis, Teodoro, Victorina, Corazon, Violets, *** Rosario and Magdalena, all
surnamed Hidrosollo, who are nephews and nieces of Ludovico Hidrosollo; that Ludovico, however, died
without fulfilling the obligation so that the estate of Concepcion formed part of the estate of Ludovico.
They prayed in the alternative that judgment be rendered either a) declaring a trust to have been created
in their favor and their co-beneficiaries over the residue of the estate of Concepcion Mapa de Hidrosollo
and ordering therein defendants Luis and Teodoro Hidrosollo as administrators of the estate of Ludovico
Hidrosollo, to deliver to them 6/13 of the said properties; or b) declaring the institution of Ludovico
Hidrosollo as universal heir with a provision for fideicommissary substitution in their favor and their co-
beneficiaries as null and void, declaring the residue of the estate of Concepcion Mapa de Hidrosollo to have
been subject to intestate succession, declaring them to be the sole heirs to said residue and ordering
therein defendants Luis and Teodoro Hidrosollo to turn over to them the said properties.

Respondents, in their Answer, denied the existence of a trust and alleged that Ludovico Hidrosollo, being
the surviving spouse of the deceased Concepcion Mapa de Hidrosollo became the latter's universal heir
when she died without descendants or ascendants; that as such universal heir, Ludovico stepped into the
rights, title and claims of the deceased Concepcion Mapa de Hidrosollo, so that the controverted properties
became part of his own estate subject of settlement in Special Proceedings No. 52229. They further
claimed that Civil Case No. 59566 was barred by the order of the same court sitting as a probate court in
Special Proceedings No. 52229 which denied petitioners' motion for intervention, and that petitioners, in
having instituted Civil Case No. 59566 had forfeited any benefits under the will.

In disposing of the case, the lower court ruled that a trust was created over the properties of petitioners'
claim, however, respondents had forfeited their rights thereto; and that the denial of petitioners' motion to
intervene in Special Proceedings No. 52229 did not deprive the petitioners of their right to institute a
separate action to recover what pertains to them in their own right. Thus, the lower court ordered
respondents Luis and Teodoro Hidrosollo or whoever of the rest of therein defendants had disposition of the
properties to reconvey the same in favor of petitioners, to render an accounting of the income of said
properties and to deliver to petitioners the net proceeds of such income.

Respondents moved for a reconsideration of the decision, but were denied the relief sought. Their appeal
to the Court of Appeals proved fruitful as the appellate court reversed the decision of the lower court and
ruled instead that no trust nor fideicommissary substitution was created in Concepcion Mapa de
Hidrosollo's Will and that petitioners' claim was barred by a final judgment, i.e., the order denying their
motion to intervene in Special Proceedings No. 52229 from which no appeal was taken.

Hence, this present recourse, petitioners maintaining that the will of Concepcion Mapa de Hidrosollo
created a trust in their favor, not a fideicommissary substitution, and that the denial of their motion to
intervene in Special Proceedings No. 52229 did not constitute a bar to Civil Case No. 59566.

We find both contentions meritorious.

A careful perusal and scrutiny of the pertinent provisions of Concepcion Mapa de Hidrosollo's Will reveal
that she intended to create a trust in favor of both petitioners and private respondents. These provisions
read:

OCTAVA: Del resto de todos mis bienes parafernales y ganaciales, instituyo por mi unico y
universal heredero, a mis esposo Ludovico Hidrosollo, a quien, al mismo tiempo, nombro
como mi Abacea (sic) testamentario con relvacin (sic) de fianza.

NOVENA: Encargo a mi esposo que en el caso de que me abreviva (sic), disponga de los
bienes que le queden a favor de nuestros sobrinos, todos en partes iguales, a saber:

1. Jose 8. Victorina
Agustin Hidrosollo
Mapa
 2. Segundo 9. Corazon
Mapa Hidrosollo

3. Priscilla 10. Luis

Mapa Hidrosollo

4. Teresa 11. Violeta

Mapa Hidrosollo

5. Ignacio 12. Rosario

Salazar Hidrosollo

6. Jose 13.
Salazar Magdalena
Hidrosollo

7. Teodoro
Hidrosollo

DECIMA: Los beneficiarios nombrados en la clausula que antecede tendran la obligacion de

entregar, cada ano a Salvador Genova, centras esta viva, doce cavanes de palay, con la
condicion de que dicho Salvador ayude a Luis Hidrosollo en la recoleccion de cada cosecha.
Dichos beneficiarios tendran iqualmente la obligacion de permitir al menciado Salvador
Genova a tener su casa en nuestro solar en I laud, dentro de la poblacion de Dumarao, sin
pago alguno.

UNDECIMA: Encargo igualmente a mi esposo, como heredero universal mio que, si a su

muerte, hubiese alguna dueda contraida por el durante su supervivencia sobre mi dicha
deuda sea cargada a la parte que corresponda a sus sobrinos por consagunidad todos
appellidados Hidrosollo, y no debera en mio alguno afectar la participacion de mis sobrinos,
cuatro de ellos appellidados Mapa y dos appellidados Salazar.

xxx xxx xxx

DECIMA TERCERA: Es tambien mi voluntad la desque los bienes permanezcan en todo

tiempo en comunidad, y que los beneficiarios se abstengan an absoluto de venderos o
gravarlos en cualquier forma, en respeto a la memoria de sus tios que solo miran el proprio
bien de sus dichos sobrinos.

xxx xxx xxx

DECIMA QUINTO: Encargo a mis sobrinos nombrados en esta testamento que la

administracion de los bienes de la comunidad sea encomendada a Ignacio Salazar y a Luis
Hidrosollo conjuntamente, y en el caso de que ambos o cualquiera de ellos no pudiere por
cualquier motive, complier con el cometido, que dicha administracion se ponga en manos de
los sobrinos, uno del groupo Mapa o Salazar y el otro del grupo Hidrosollo. (pp. 58-59, Rollo).

Thus, under paragraph 8 of the Will, Ludovico Hidrosollo was instituted as sole and universal heir to the
rest of the properties not covered by the legacies in the preceding paragraphs. Under paragraph 9,
however, said Ludovico Hidrosollo was charged (encargo) with the obligation to deliver the rest of the
estate in equal parts to the Mapa, Salazar and Hidrosollo nephews and nieces, who, as beneficiaries, were
directed to deliver annually to one Salvador Genova, during his lifetime, 12 cavans of palay on the
condition that the latter assist Luis Hidrosollo in each harvest. Said beneficiaries were likewise required to
allow said Salvador Genova to maintain his house on a parcel of land situated at Ilaud, Municipality of
Dumarao, without payment of any compensation (Par. 10 of the Will).

In paragraph 11 of the same Will, the testatrix expressly provided that any obligations which her husband
might incur after her death, shall be charged against the share corresponding to the Hidrosollo nephews
and nieces and in no case shall the participation of her own nephews and nieces be charged with said
obligations. She likewise expressed the wish that all her properties should always remain in co-ownership
among her beneficiaries, who should abstain from selling or encumbering the same in any manner
whatsoever (par. 13) and that the same be administered jointly by Ignacio Salazar and Luis Hidrosollo, or in
case of their inability, by a nephew or niece from each of the two groups (par. 15).
Although the word "trust" itself does not appear in the Will, the testatrix's intent to create one is
nonetheless clearly demonstrated by the stipulations in her Will. In designating her husband Ludovico
Hidrosollo as universal and sole heir with the obligation to deliver the properties to petitioners and private
respondents, she intended that the legal title should vest in him, and in significantly referring to petitioners
and private respondents as "beneficiarios," she intended that the beneficial or equitable interest to these
properties should repose in them. To our mind, these designations, coupled with the other provisions for
co-ownership and joint administration of the properties, as well as the other conditions imposed by the
testatrix effectively created a trust in favor of the parties over the properties adverted to in the Will. "No
particular words are required for the creation of an express trust, it being sufficient that a trust is clearly
intended. " (Art. 1443, Civil Code of the Philippines).

However, we must not lose sight of the fact that as the surviving spouse of the testatrix, Ludovico
Hidrosollo was entitled to a legitime of one-half (1/2) of her hereditary estate. As that portion is reserved
by law for the compulsory heirs, no burden, encumbrance, condition or substitution of any kind whatsoever
may be imposed upon the legitime by the testator. (Art. 904, second paragraph, Ibid) The trust created by
Concepcion Mapa should therefore be, as it is hereby declared to be effective only on the free portion of
her estate, i.e., that portion not covered by Ludovico Hidrosollo's legitime.

Anent the issue of res judicata, We rule that the order denying petitioners' motion for intervention in
Special Proceedings No. 52229 did not constitute an adjudication on the merits and therefore could not
operate as a bar to Civil Case No. 59566.

The reason given by the probate court for denying petitioners 'motion for intervention is as follows:

... that there is no fideicommissary substitution because the testatrix did not impose upon
her spouse the absolute obligation to deliver the property to said petitioners. When the
testatrix provided in her will that her husband dispose of in favor of the petitioners his
remaining properties it only shows that he was not absolutely obligated to preserve and
transmit to the petitioners the properties by him acquired under the will of his deceased
wife. If the testatrix intended to entrust the property to her husband with the obligation to
preserve and to transmit the remaining properties to the petitioners, she could have said so
in an express manner. However, even assuming that Clause 9 could be interpreted to he a
fideicommissary substitution, such substitution can not be given effect in the face of an
opposition and in view of Art, 863 of the Civil Code of the Philippines, requiring that
substitution must not go beyond one degree from the heir originally instituted. It will be
noticed that the second heirs instituted are merely "sobrinos" of the fiduciary or first heir
(surviving spouse). Upon these facts, the Court is of the opinion that the movants for
intervention do not have a legal interest in the estate under the present administration. (pp.
50-51, Record on Appeal, p. 101, Rollo).

Since the denial order was anchored primarily on the nonexistence of, or the ineffectivity of a
fideicommissary substitution, and did not resolve the issue of trust alleged by petitioners, said order
cannot be considered an adjudication on the merits of petitioners' claim against the estate.

WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 40448-A is hereby reversed. Private
respondents Luis and Teodoro Hidrosollo or their successors as administrators of the estate of Ludovico
Hidrosollo are hereby ordered to deliver to petitioners their lawful shares in the trust constituted over the
free portion of the estate of Concepcion Mapa. Said Luis and Teodoro Hidrosollo or their successors are
further ordered to render an accounting of the income of the properties pertaining to petitioners and to
deliver to the latter the net proceeds of such income.

No pronouncement as to costs.

----------------

CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees,

vs.
DR. MANUEL SINGSON, defendant-appellant.

Felix V. Vergara for defendant-appellant.

B. Martinez for plaintiffs-appellees.

DIZON, J.:

Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against
Manuel Singson in connection with a residential lot located a Plaridel St., Vigan, Ilocos Sur, with an area of
approximately 193 square meters, and the improvements existing thereon, covered by Tax No. 10765-C.
Their complaint alleged that Singson owned one-half pro-indiviso of said property and that Consolacion
Florentino owned the other half by virtue of the provisions of the duly probated last will of Da. Leona
Singson, the original owner, and the project of partition submitted to, and approved by the Court of First
Instance of Ilocos Sur in special Proceeding No. 453; that plaintiffs had made demands for the partition of
said property, but defendant refused to accede thereto, thus compelling them to bring action.
Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of one-
half pro-indiviso of the property in question, and that, therefore, she was not entitled to demand partition
thereof.

After trial upon the issue thus posed, the lower court rendered judgment as follows:

1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the house and lot
described in the complaint to the extent of each of an undivided 1/2 portion thereof; .

2. Ordering the aforesaid co-owners to execute an agreement of partition of the said property
within 30 days from receipt of this judgment unless it be shown that the division thereof may render
it unserviceable, in which case the provisions of Art. 498 of the New Civil Code may be applied; .
1wph1.t

3. That in the event the said parties shall fail to do so, this Court will appoint the corresponding
commissioners to make the partition in accordance with law; and .

4. Without special pronouncement as to costs." .

From the above judgment, defendant Singson appealed.

It is admitted that Da. Leona Singson, who died single on January 13, 1948, was the owner of the property
in question at the time of her death. On July 31, 1951 she executed her last will which was admitted to
probate in Special Proceeding No. 453 of the lower court whose decision was affirmed by the Court of
Appeals in G.R. No. 3605-R. At the time of the execution of the will, her nearest living relatives were her
brothers Evaristo, Manuel and Dionisio Singson, her nieces Rosario, Emilia and Trinidad, and her
grandniece Consolation, all surnamed Florentino.

Clause IX of her last will reads as follows: .

NINETH. - I order you to my granddaughter by my my sister and at the same time living in my house , and
therefore under my protection , and is the FLORENTINO CONSOLATION : -

(TO). Half of my house strong materials with galvanized iron roof , including half of its solar, located in the
town of Vigan , Ilocos Sur, Plaridel Street , currently leased by Fortunato , Teofilo and Pedro del Surname
Kairuz brothers. But if you die before or after I mentioned my granddaughter, this property equally
between Evaristo my three brothers , Manuel and Dionisio , or their heirs will be given in the event that
any of them murieie before ... ( Exhibit F. )
The issue to be decided is whether the testamentary disposition above-quoted provided for what is
calledsustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe, controlled by the
pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the New Civil
Code, in view of the fact that the testatrix died on January 13, 1948. They are the following: .

Art. 774. The testator may designate one or more persons to substitute the heir or heirs instituted
in case such heir or heirs should die before him, or should not wish or should be unable to accept
the inheritance.

A simple substitution, without a statement of the cases to which it is to apply, shall include the
three mentioned in the next preceeding paragraph, unless the testator has otherwise provided:

Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to preserve and
transmit to a third person the whole or part of the inheritance shall be valid and effective, provided
they do not go beyond the second degree, or that they are made in favor of persons living at the
time of the death of the testator." .

Art. 785. The following shall be inoperative: .

1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing upon
the fiduciary the absolute obligation of delivering the property to a second heir." ....

In accordance with the first legal provision quoted above, the testator may not only designate the heirs
who will succeed him upon his death, but also provide for substitutes in the event that said heirs do not
accept or are in no position to accept the inheritance or legacies, or die ahead of him.

The testator may also bequeath his properties to a particular person with the obligation, on the part of the
latter, to deliver the same to another person, totally or partially, upon the occurrence of a particular event
(6 Manresa, p. 1112).

It is clear that the particular testamentary clause under consideration provides for a substitution of the heir
named therein in this manner: that upon the death of Consolacion Florentino whether this occurs before
or after that of the testatrix the property bequeathed to her shall be delivered ("se dara") or shall belong
in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced heirs, should
anyone of them die ahead of Consolacion Florentino. If this clause created what is known as sustitucion
vulgar, the necessary result would be that Consolacion Florentino, upon the death of the testatrix, became
the owner of one undivided half of the property, but if it provided for a sustitution fideicomisaria, she would
have acquired nothing more than usufructuary rights over the same half. In the former case, she would
undoubtedly be entitled to partition, but not in the latter. As Manresa says, if the fiduciary did not acquire
full ownership of the property bequeathed by will, but mere usufructuary rights thereon until the time
came for him to deliver said property to the fideicomisario, it is obvious that the nude ownership over the
property, upon the death of the testatrix, passed to and was acquired by another person, and the person
cannot be other than the fideicomisario (6 Manresa p. 145).

It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed upon
the first heir to preserve and transmit to another the whole or part of the estate bequeathed to him, upon
his death or upon the happening of a particular event. For this reason, Art. 785 of the old Civil Code
provides that a fideicommissary substitution shall have no effect unless it is made expressly ("de una
manera expresa") either by giving it such name, or by imposing upon the first heir the absolute obligation
("obligacion terminante") to deliver the inheritance to a substitute or second heir. In this connection
Manresa says: .

For the replacement is trustee, it is necessary according to art. 781, which ordered or instruct the first heir,
whenever such that conserve and transmit to a third person or entity to all or part of the inheritance. Or
what is the same, the trusts, as stated by the resolutions of June 25, 1895, February 10, 1899 and July 19,
1909, requires three conditions:.

1st A first heir called to the enjoyment of preferably assets.

2d clearly Obligation imposed on it to preserve and transmit to a third party all or part of the flow.

3rd A second heir. These requirements adds the judgment of 18 November 1918, another one, that of the
trustee is entitled to the assets of the estate from the time of the testator's death, as has happened to this
and not the trustee. Therefore, when the cause is limited to institute two heirs, and death of both or either
of them, assigns the part of the deceased or deceased, the legitimate heirs or others, there is only one
vulgar substitution, because the requirement is missing the obligation to preserve and transmit the goods
had been imposed on the first heirs, and article 789, in its first paragraph, evige that the substitution is
expressed, and giving the testator's name trusts, and imposing the substituted strict obligation to preserve
and transmit the goods to a second heir

A careful perusal of the testamentary clause under consideration shows that the substitution of heirs
provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear
statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the
property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As
already stated, it merely provides that upon appellee's death whether this happens before or after that
of the testatrix her share shall belong to the brothers of the testatrix.

In the light of the foregoing, we believe, and so hold, that the last will of the deceased Da. Leona Singson,
established a mere sustitucion vulgar, the substitution Consolacion Florentino by the brothers of the
testatrix to be effective or to take place upon the death of the former, whether it happens before or after
that of the testatrix.

IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.

-----------------------

No. L-28734. March 28, 1969.

EMETERIO A. RODRIGUEZ (in substitution of RUFINO A. RODRIGUEZ, who died during the
pendency of this case in the Court of Appeals), and JOSE AYALA, executors petitioners, vs. THE
HON. COURT OF APPEALS and PETRA RODRIGUEZ, ANTONIA RODRIGUEZ and ROSA RODRIGUEZ,
oppositors-respondents.

Wills; Wishes of testator the basis in interpreting clauses of the will.The wishes of the testatrix constitute
the law. Her will must be given eff ect. This is so even if there could be an element of uncertainty insofar as
the ascertainment thereof is concerned. Respect for the will of a testator as expressed in his last
testamentary disposition, constitutes the principal basis of the rules which the law prescribes for the
correct interpretation of all of the clauses of the will; the words and provisions therein written must be
plainly construed in order to avoid a violation of his intentions and real purpose. The will of the testator
clearly and explicitly stated must be respected and complied with as an inviolable law among the parties in
interest.
Same; Where testators intention obscured by inapt and inaccurate modes of expression.Where the
testators intention is manifest from the context of the will and surrounding- circumstances, but is
obscured by inapt and inaccurate modes of expression, the language will be subordinated to the intention,
and in order to give effect to such intention, as far as possible, the court may depart from ,the strict
wording and read a word or phrase in a sense different from that which is ordinarily attributed to it, and for
such purpose may mould or change the language of the will, such .as restricting its application or
supplying omitted words or phrases.

FERNANDO, J.:

A will is the testator speaking after death.1 The law listens and yields obedience. unless in the preparation
thereof or in the disposition made therein there is a failure to follow a legal norm. In the present suit, there
was none as to the formalities required, the will in question having been probated on September 23, 1960.
As to its intrinsic validity, there apparently was none either as shown by the project of partition having
been approved by the lower court, again, without opposition. As more specifically set forth in the decision
of the Court of Appeals of January 18, 1967, the reconsideration of which after about a year, to be more
precise, on January 8, 1968, ied to this petition for certiorari: It appears from the record that Doa
Margarita Rodriguez died in the City of Manila on July 19, 1960, leaving a last will and testament under
date of September 30, 1951 and that said last will and testament was legalized by virtue of the resolution
or order of the Court of First Instance of Manila under date of September 23, 1960, without the appellants
opposition in Special Proceeding No. 3845, hence the extrinsic validity of the will was substantially not in
question. On August 27, 1962, the executor of the last will and testament of the late, Doa Margarita
Rodriguez presented a project of partition and the same was approved by the Court of First Instance of
Manila, again without the opposition of the appellants. Hence, the intrinsic validity of the will could never
be again questioned and raised as issue in the trusteeship proceedings No. 51872 of the same court 2

One would expect, therefore, that the aforesaid decision of the Court of Appeals would write finis to this
litigation. Unfortunately, it was not so. It ought not to have been the case, for, as admitted, the deceased,
to quote from the language of the January 18, 1967 decision of the Court of Appeals, at the time of her
death left no compulsory heirs or forced heirs and, consequently, [was] free to dispose of her properties
even to strangers at will as provided in her will."3 It was likewise noted therein that the testatrix created a
trust which was objected to by private respondents, who claimed to be first cousins of the deceased. Such
an objection was overruled by the lower court which granted letters of trusteeship to petitioners, who were
the executors under the will. Such an order of the lower court was appealed by respondent to the Court of
Appeals, which, in the original decision of January 18, 1967, affirmed the action taken by the Court of First
Instance.

A motion for reconsideration filed by private respondents resulted in a resolution of January 8, 1968, which
set aside its previous decision of January 18, 1967 and modified the judgment .appealed from insofar as
the validity of the provision of clause 10 of the will creating the trusteeship was concerned. The disputed
clause reads thus: "[Clausula Decima O Pang Sampu]. Ipinaguutos ko na ang mga pag-aaring nasasabi sa
Clausulang ito ay pangangasiwaan sa habang panahon, at ito nga ang ipagbubukas ng Fideicomiso sa
Juzgado sa pagkatapos na maayos ang naiwanan kong pag-aari. Ang pangangasiwaang pag-aari ay ang
mga sumusunod: x x x. Ang lahat ng pag-aaring nasasabi Clausulang ito (hindi kasama ang generator at
automobile) hindi maisasanla o maipagbibili kailan man, maliban sa pag-aaring nasa Quezon Boulevard,
Maynila, na maaaring isanla kung walang pondo sa gagamitin sa ipagpapaigi o ipagpapagawa ng panibago
at alinsunod sa kaayusang hinihingi ng pana-hon."4

In the resolution setting aside the original decision of January 18, 1967, the Court of Appeals held that the
above perpetual prohibition to alienate the property mentioned, constitutes a clear violation of Article
867 and Article 870 of the Civil Code. It was further stated in the aforesaid resolution that the Court of
Appeals did arrive at the considered view that the trust in question is a nullity for being in violation of the
aforestated rules (against perpetuities and the limitation regarding the inalienability of the hereditary
estate)."5 There being then no institution of heirs as regards the properties covered by the trust, the Court
of Appeals held that there should be intestate succession concerning the same, with the nearest relative
of the deceased entitled to inherit the properties in accordance with the law on intestacy. The case should,
therefore, be remanded to the lower court." Hence this petition for certiorari to review the aforesaid
resolution of the Court of Appeals.

The validity of the above clause was not passed upon in the decision of January 18, 1967 of the Court of
Appeals; rather, it was assumed. The view that then prevailed was that the approval of the project of
partition sufficed to dispose of that question. The challenged resolution of January 8, 1968 betrayed a
change of heart of the Court of Appeals. It explained why: The contention of [petitioner] that there had
already been a project of partition approved by the lower court [which] operates as a waiver on the part of
the [respondents] to raise the issue of the invalidity of the questioned provision of the will which We have
sustained in our decision, seems to be not well taken. We have discovered from the records that the
properties involved in this case have not been disposed of as yet and are still within the reach of the
probate court. The necessary procedure, therefore, in accordance with the law as delineated in the above
discussion, should be observed. The order of the lower court granting the petition for the formation of the
trust in question should be annulled as being in violation of the rules against perpetuities and the
limitation on the prohibition for the alienation -of the property left by the deceased."
We will not deviate from the approach thus taken by the Court of Appeals in the challenged resolution of
January 8, 1968, but we differ in our conclusion. We find the clause, at least insofar as the first twenty-year
period is concerned, in accordance with the Civil Code provision.8 Accordingly, we find for petitioners and
reverse the Court of Appeals.

The validity of the clause in question if interpreted to conform to the controlling legal norm prescribed by
the Civil Code cannot be assailed. If the January 18, 1967 decision of the Court of Appeals were to be
modified, it is only in the above sense. The reconsideration, as was done in the challenged resolution,
which would have the effect of partial intestacy, was uncalled for.

It does not admit of doubt that in the disputed clause the testatrix did make clear her purpose not to
mortgage or to sell forever more (kailan man) certain properties left by her. There would seem then some
justification for the Court of Appeals in the challenged resolution to deny force and effect to such a wish
considering that a perpetual prohibition to alienate is by the Civil Code forbidden.9 The more controlling
provision, however, as already made mention of is supplied by Article 870. Its terms are clear. The
dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are
void.

The codal provision does not need any interpretation. It speaks categorically. What is declared void is the
testamentary disposition prohibiting alienation after the twenty-year period. In the interim, such a
provision does not suffer from the vice of invalidity, It cannot be stricken down. Time and time again, we
have said, and we now repeat, that when a legal provision is clear and to the point, there is no room for
interpretation, It must be applied according to its literal terms. Even with the purpose that the testatrix had
in mind were not as unequivocal, still the same conclusion emerges. There is no room for intestacy as
would be the effect if the challenged resolution of January 8, 1968 were not set aside. The wishes of the
testatrix constitute the law. Her will must be given effect. This is so even if there could be an element of
uncertainty insofar as the ascertainment thereof is concerned. In the language of a Civil Code provision: If
a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by
which the disposition is to be operative shall be preferred."11 Nor is this all. A later article of the Civil Code
equally calls for observance. Thus: The words of a will are to receive an interpretation which will give to
every expression some eff ect, rather than one which will render any of the expressions inoperative; and of
two modes of interpreting a will, that is to be preferred which will prevent intestacy." The net result would
be to reaffirm the conclusion reached that the challenged resolution of January 8, 1968 is objectionable, in
view of its lack of fidelity to the controlling legal norms.

In no other way can there be deference paid to what the testator had in mind. This Court so emphatically
expressed it in a decision rendered more than sixty years ago. Thus: Respect for the will of a testator as
expressed in his last testamentary disposition, constitutes the principal basis of the rules which the law
prescribes for the correct interpretation of all of the clauses of the will; the words and provisions therein
written must be plainly construed in order to avoid a violation of his intentions and real purpose. The will of
the testator clearly and explicitly stated must be respected and complied with as an inviolable law among
the parties in interest. Such is the doctrine established by the supreme court of Spain, constantly
maintained in a great number of decisions, among which are those of March 24, 1863, April 28, 1882, and
December 16, 1903."13

Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator
allowed to prevail that we could even vary the language of the will for the purpose of giving it effect. Thus:
Where the testators intention is manifest from the context of the will and surrounding circumstances, but
is obscured by inapt and inaccurate modes of expression, the language will be subordinated to the
intention, and in order to give effect to such intention, as far as possible, the court may depart from the
strict wording and read a word or phrase in a sense different from that which is ordinarily attributed to it,
and f or such purpose may mould or change the language of the will, such as restricting its application or
supplying omitted words or phrases."14

A more recent reiteration of such an attitude is found in an opinion by former Chief Justice Paras. Thus: As
a closing observation, it is not for us to discover the motives of Oliva Villapaa in leaving her properties to
the person named in the will, and omitting therefrom the oppositors-appellees. Suffice it to state that the
trial court itself found the will to have been executed free from falsification, fraud, trickery or undue
influence, with Oliva having testamentary capacity; and in such a situation it becomes our duty to give
expression to her will."15

What further fortifies the view taken by us is the admitted fact, as was expressed in the January 18, 1967
decision of the Court of Appeals that at the time of her death the deceased left no compulsory heirs or
forced heirs and, consequently, free to dispose of her properties even to strangers x x x as provided in her
will."16 That is what she did and petitioners have no valid cause for complaint, at least not one cognizable
in a court of justice.

As we had occasion to state: Though it might appear right that Amando Clemente should receive
something from the estate because he, together with Ariston Bustamante, has been raised by the
testatrix, and both are her relatives, nevertheless it would be venturesome for us to advance our own idea
of a just distribution of the property in the face of a different mode of disposition so clearly expressed by
the testatrix on the later will. As she had no forcible heirs, she was absolutely f ree to give her estate to
whomsoever she chose, subject of course to the payment of her debts. It would be a dangerous precedent
to strain the interpretation of a will in order to effect what the court believes to be an equitable division of
the estate of a deceased person. The only function of the courts in these cases is to carry out the intention
of the deceased as manifested in the will. Once that intention has been determined through a careful
reading of the will or wills, and provided the law on legitimes has not been violated, it is beyond the pale of
judicial cognizance to inquire into the fairness or unfairness of any devise or bequest. It might be said that
it is hard to understand how, in a temporary anger at Amando Clemente, the testatrix would entirely cut
him off from the inheritance. We should not, however, sit in judgment upon her motives and sentiments,
first because, as already stated, nothing in the law restrained her from disposing of her property in any
manner she desired, and secondly, because there are no adequate means of ascertaining the inward
processes of her conscience. She was the sole judge of her own attitude toward those who expected her
bounty."17

Nothing can be clearer, theref ore, than that petitioners could not challenge the provision in question. It
had no right to vindicate. Such a right may never arise. The twenty-year period is still with us. What would
transpire thereafter is still locked up in the inscrutable future, beyond the power of mere mortals to
foretell. At any rate. we cannot anticipate. Nor should we. We do not possess the power either of conferring
a cause of action to & party when, under the circumstances disclosed. it had none.

WHEREFORE, the resolution of January 8, 1968 of the Court of Appeals is set aside, thus leaving in full force
and effect its decision of January 18, 1967, which affirmed the lower court order of May 11, 1964. With
costs against private respondents.

---------------------------------

G.R. No. L-11386 March 31, 1917

EMILIO NATIVIDAD, administrator of the estate of the deceased Tiburcio Salvador y

Reyes, petitioner-appellant,
vs.
BASILIA GABINO, respondent-appellee.

Herrero and Marasigan and I. Santiago for appellant.

Perfecto Gabriel for appellee.

TORRES, J.:

This is an appeal, filed by the administrator of the estate of the decedent Tiburcio Salvador y Reyes, from
the order of August 21, 1915, by which the judge of the Court of First Instance of Manila, interpreting the
true wishes of the testator, expressed the opinion that the ownership and dominion of the property
mentioned in clause 6 of the will should be awarded to Basilia Gabino, subject to the reservation made in
behalf of Lorenzo Salvador and Emilio Natividad. Therefore the trial court ordered an amendment made to
the fourth basis for the proposed partition of the decedent's estate, presented by the testamentary
executor, and, as soon as such be made, a day set for the hearing and approval of the proposed amended
partition.

The testator Salvador y Reyes contracted a valid and legal marriage with Anselma Nicasio, who died in
1868, leaving a daughter named Higinia who married Clemente Natividad. Higinia Salvador died in 1913,
survived by two children Emilio and Purificacion, both surnamed Natividad y Salvador. Tiburcio Salvador
disposed of all his property in the manner recorded in the will executed in legal form on November 9, 1914,
instituting as sole heirs his grandchildren Emilio and Purificacion, both surnamed Natividad y Salvador. In
the sixth clause of this will the testator left to Basilia Gabino the legacy mentioned therein. Literally, this
clause is as follows:

I bequeath to Doa Basilia Gabino the ownership and dominion of the urban property, consisting of
a house and lot situated on Calle Lavezares of the said district of San Nicolas and designated by No.
520, and in addition eleven meters by two meters of the lot designated by No. 419, situated on
Calle Madrid. This portion shall be taken from that part of the lot which is adjacent to the rear of
said property No. 520. If the said legatee should die, Lorenzo Salvador shall be obliged to deliver
this house, together with the lot on which it stands, to my grandson Emilio Natividad, upon
payment by the latter to the former of the sum of four thousand pesos (P4,000), Philippine currency.

The executor of the estate of the decedent is the decedent's own heir, Emilio Natividad, who in due season
and by counsel presented to the court for its approval a proposed partition of the property pertaining to
the estate, setting forth in the fourth basis the following relative to the legacy made to Basilia Gabino:

Summarizing the statements made in respect to this matter, we are of the opinion that the sixth
clause expresses in itself a right of usufruct, in favor of Doa Basilia Gabino, of the house at No. 520
Calle Lavezares, and a general legacy in favor of Lorenzo Salvador of the sum of P4,000 whenever
Basilia should die; but that the ownership of the property upon which this right and legacy are
 established belongs to the heir Emilio Natividad who, by the express will of the testator, had been
made liable for these encumbrances.

By a writing of August 5, 1915, counsel for the legatee Basilia Gabino opposed the approval of the
proposed partition with regard to the adjudication to the legatee of the usufruct only of the property at No.
520 Calle Lavezares, claiming that said legatee ought to be recognized as entitled to the dominion and
ownership of the same. For this and the other reasons set forth, her counsel requested that the
testamentary executor be ordered to amend the fourth basis of the proposed partition in order that
ownership and dominion, instead of usufruct only, of said property be adjudicated to the objector-legatee,
Basilia Gabino.

After proper legal steps had been taken and the written briefs of the parties and the schedule of the
proposed partition filed by the testamentary executor had been examined, the trial judge issued the order
aforementioned. Appeal was taken by counsel for the executor to this court, and a transcript of the record
of the proceedings below was forwarded to the clerk of this court.

The only question raised by this appeal and submitted to us for decision is: What construction must be
given to the above-quoted sixth clause of the will executed by Tiburcio Salvador?

A person is entirely free to make his will in such manner as may best please him, provided the
testamentary provisions conform to law and meet its requirements. He may impose conditions, either with
respect to the institution of heirs or to the designation of legatees, and, when the conditions imposed upon
the former or the latter do not fall within the provisions of those articles of the Civil Code touching heirs
and legatees, they shall be governed by the rules therein prescribed for conditional obligations, (Civ. Code,
arts. 790 and 791.)

In the sixth clause of the will executed by the decedent Tiburcio Salvador y Reyes, he bequeathed to
Basilia Gabino the ownership and dominion of the property therein specified as to its location and other
circumstances, on condition that if the legatee should die Lorenzo Salvador would be obliged, upon the
payment of P4,000 by the testator's grandson and heir Emilio Natividad, to hand over this property to the
latter.

The condition imposed by the testator in the double legacy mentioned depends upon the happening of the
event constituting the condition, to wit, the death of the legatee Basilia Gabino, a perfectly legal condition
according to article 1114 of the Civil code, as it is not impossible of performance and is not contrary to law
or public morals, as provided in article 1116 of said code.

The moment the legatee Gabino dies the other legatee, Lorenzo Salvador, is obliged to deliver the property
to the heir Emilio Natividad who, in his turn and in exchange, must pay the legatee Salvador the sum of
P4,000, thereby fulfilling the double legacy contained in the said sixth clause of the will, the first of these
legacies being the voluntary reservation to Basilia Gabino of the ownership of the said house, and the
second, the conditional legacy of P4,000 to Lorenzo Salvador.

Making use of his right, the testator provided in his will that the dominion, that is, the ownership and
possession of his house situated on Calle Lavezares, No. 520 together with a part of the lot at No. 419,
should be delivered as a legacy, provided that if the legatee should die, this property instead of passing to
the successor, would revert to the testator's grandson and heir, provided that he in turn would pay to
Lorenzo Salvador the sum of P4,000. It cannot be understood that the legacy conveyed only the usufruct of
the property because the plain and literal meaning of the words employed by the testator in the said
clause sixth clearly shows beyond all doubt the express wished of the testator who, establishing a
voluntary reservation of the ulterior and final disposition of the bequeathed property, ordered that the
legatee's right of dominion should end at her death, and that on this occurrence his wish was that the
ownership of the property should pass to Emilio Natividad, provided the latter in turn delivered said P4,000
to Lorenzo Salvador who appears to be the son of the legatee Gabino.

If the provisions of article 675 of the Civil Code are to be complied with, it cannot be understood that the
testator meant to bequeath to Basilia Gabino the mere usufruct of the property, inasmuch as, by
unmistakable language employed in the said sixth clause, he bequeathed her the ownership or dominion
of the said property language which expresses without the slightest doubt his wishes which should be
complied with literally, because it is constant rule or jurisprudence that in matters of last wills and
testaments the testator's will is the law.

It is true that the legatee could not make any disposal of the bequeathed real property to be effective after
her death, nor could the property be acquired from her by her heir through testate or intestate succession;
but if we take into account that the institution of donations and legacies depends on the full free will of the
testator, and that if the testator intended no more than that Basilia Gabino should enjoy the ownership of
the property during her lifetime, this testamentary provisions is not contrary to law or to public morals,
inasmuch as the testator thereby intended that the property should revert to its lawful heir, the latter
being obliged to make a monetary compensation to Lorenzo Salvador who appears to be the successor of
the legatee Gabino.

For the foregoing reasons, considering that the order appealed from is in accordance with law and that the
several features of the sole assignment of error made thereto are without merit, the said order of August
21, 1915, must be affirmed, with the costs against the appellant. So ordered.

-----------------------------

JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF APPEALS AND MARIA

MARLENA[2] COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.

DECISION

PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals, [3] dated December 23, 1993, in
CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in
Bacolod City, and ordered the defendants-appellees (including herein petitioner), as heirs of Dr.
Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the
estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla,
predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of
511, 855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre.
The said Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the
then Court of First Instance of Negros Occidental, contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla
resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002
(10942), which is registered in my name according to the records of the Register of Deeds of
Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights
which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and
spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge
Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod
Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time
that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have
the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza,
Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until
the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod
Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the
obligation to still give yearly, the sugar as specified in the Fourth paragraph of his
testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to
whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot,
the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly
ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month
of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic,
 until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not
have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y
Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and
shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to
give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command
in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will
obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with
others than my near descendants and my sister."[4]

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and
Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny
(petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed
as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the
above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The
Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters
Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the
near descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs
of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena
Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as
mandated by the Codicil, despite repeated demands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in
case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall
likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private
respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return-
Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the
name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the
names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the
Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer,
accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of
the herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant-
heirs, arrived at an amicable settlement and entered into a Memorandum of Agreement on the
obligation to deliver one hundred piculs of sugar, to the following effect:

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will
be delivered not later than January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our
names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each
sugar crop year, in Azucar Sugar Central; and, this is considered compliance of
the annuity as mentioned, and in the same manner will compliance of the
annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be
complied in cash equivalent of the number of piculs as mentioned therein and which is as
herein agreed upon, taking into consideration the composite price of sugar during each
sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS
(P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash installment,
payable on or before the end of December of every sugar crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1991-92."[5]

However, there was no compliance with the aforesaid Memorandum of Agreement except for a
partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988 -1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and
disposing as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is
prematurely filed as no cause of action against the defendants has as yet arose in favor of
plaintiff. While there maybe the non-performance of the command as mandated exaction
from them simply because they are the children of Jorge Rabadilla, the title holder/owner of
the lot in question, does not warrant the filing of the present complaint. The remedy at bar
must fall. Incidentally, being in the category as creditor of the left estate, it is opined that
plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge
Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED
without prejudice.

SO ORDERED."[6]

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial
court; ratiocinating and ordering thus:

"Therefore, the evidence on record having established plaintiff-appellant's right to receive

100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellee's
obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver
such amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliance
with said obligation since 1985; and, the punitive consequences enjoined by both the codicil
and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza
in case of such non-compliance, this Court deems it proper to order the reconveyance of title
over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However,
plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate,
secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's
legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy
of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering
defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392,
together with its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED."[7]

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this
Court via the present petition, contending that the Court of Appeals erred in ordering the reversion
of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil,
and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the
purview of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with
Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue raised
which is the absence or prematurity of the cause of action. Petitioner maintains that Article 882
does not find application as there was no modal institution and the testatrix intended a mere simple
substitution - i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's
"near descendants" should the obligation to deliver the fruits to herein private respondent be not
complied with. And since the testatrix died single and without issue, there can be no valid
substitution and such testamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the
substituted heirs are not definite, as the substituted heirs are merely referred to as "near
descendants" without a definite identity or reference as to who are the "near descendants" and
therefore, under Articles 843[8] and 845[9] of the New Civil Code, the substitution should be deemed
as not written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals
deviated from the issue posed before it, which was the propriety of the dismissal of the complaint
on the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals
found that the private respondent had a cause of action against the petitioner. The disquisition
made on modal institution was, precisely, to stress that the private respondent had a legally
demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of
Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights are transmitted from the
moment of death of the decedent[10] and compulsory heirs are called to succeed by operation of
law. The legitimate children and descendants, in relation to their legitimate parents, and the widow
or widower, are compulsory heirs.[11] Thus, the petitioner, his mother and sisters, as compulsory
heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without
need of further proceedings, and the successional rights were transmitted to them from the
moment of death of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations
of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by
virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since
obligations not extinguished by death also form part of the estate of the decedent; corollarily, the
obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to
his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the
condition that the usufruct thereof would be delivered to the herein private respondent every year.
Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over
the said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot
involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds
to the right of private respondent over the usufruct, the fulfillment or performance of which is now
being demanded by the latter through the institution of the case at bar. Therefore, private
respondent has a cause of action against petitioner and the trial court erred in dismissing the
complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not
applicable because what the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be
substituted by the testatrix's near descendants should there be noncompliance with the obligation
to deliver the piculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or
heirs first instituted. Under substitutions in general, the testator may either (1) provide for the
designation of another heir to whom the property shall pass in case the original heir should die
before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution,
[12]
or (2) leave his/her property to one person with the express charge that it be transmitted
subsequently to another or others, as in a fideicommissary substitution. [13] The Codicil sued upon
contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.[14] In the case under consideration, the provisions of subject
Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is
that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the
property referred to shall be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a
fideicommissary substitution, the first heir is strictly mandated to preserve the property and to
transmit the same later to the second heir.[15] In the case under consideration, the instituted heir is
in fact allowed under the Codicil to alienate the property provided the negotiation is with the near
descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the
property and its transmission to the second heir. "Without this obligation to preserve clearly
imposed by the testator in his will, there is no fideicommissary substitution." [16] Also, the near
descendants' right to inherit from the testatrix is not definite. The property will only pass to them
should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to
private respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article
863, the second heir or the fideicommissary to whom the property is transmitted must not be
beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore,
void if the first heir is not related by first degree to the second heir. [17] In the case under scrutiny,
the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject
Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the
provision of law in point. Articles 882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of the property left
by the testator, or the charge imposed on him, shall not be considered as a condition unless
it appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted
heir or his heirs give security for compliance with the wishes of the testator and for the
return of anything he or they may receive, together with its fruits and interests, if he or they
should disregard this obligation.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article
cannot take effect in the exact manner stated by the testator, it shall be complied with in a
manner most analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of
succession as an institucion sub modo or a modal institution. In a modal institution, the testator
states (1) the object of the institution, (2) the purpose or application of the property left by the
testator, or (3) the charge imposed by the testator upon the heir. [18] A "mode" imposes an obligation
upon the heir or legatee but it does not affect the efficacy of his rights to the succession. [19] On the
other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in
order for the heir to be entitled to succeed the testator. The condition suspends but does not
obligate; and the mode obligates but does not suspend.[20] To some extent, it is similar to a
resolutory condition.[21]

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix
intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that
the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to
deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza,
during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's
inheritance and the effectivity of his institution as a devisee, dependent on the performance of the
said obligation. It is clear, though, that should the obligation be not complied with, the property
shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge
Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the
instituted heir without, however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed
upon the heir should not be considered a condition unless it clearly appears from the Will itself that
such was the intention of the testator. In case of doubt, the institution should be considered as
modal and not conditional.[22]

Neither is there tenability in the other contention of petitioner that the private respondent has only
a right of usufruct but not the right to seize the property itself from the instituted heir because the
right to seize was expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the
application of any of its provisions, the testator's intention is to be ascertained from the words of
the Will, taking into consideration the circumstances under which it was made. [23] Such construction
as will sustain and uphold the Will in all its parts must be adopted. [24]

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100)
piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted
heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease,
mortgage or otherwise negotiate the property involved. The Codicil further provides that in the
 event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize
the property and turn it over to the testatrix's near descendants. The non-performance of the said
obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix's
near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the
instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case
of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-
interest.

Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said
obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation
petitioner had become the obligation of the lessee; that petitioner is deemed to have made a
substantial and constructive compliance of his obligation through the consummated settlement
between the lessee and the private respondent, and having consummated a settlement with the
petitioner, the recourse of the private respondent is the fulfillment of the obligation under the
amicable settlement and not the seizure of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person
disposes of his property, to take effect after his death.[25] Since the Will expresses the manner in
which a person intends how his properties be disposed, the wishes and desires of the testator must
be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would
thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated
December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs

SO ORDERED.

Melo, J., (Chairman), concur in the separate opinion of Justice Vitug.

-----------------------

TESTATE ESTATE OF THE LATE DON VICENTE NOBLE. JUAN NOBLE, petitioner-appellee,
vs.
MARIA S. NOBLE, oppositor-appellant.

Jesus N. Maravilla and Nicolas Belmonte, for petitioner-appellee.

Farrera, Belmi and Associates for oppositor-appellant.

BARRERA, J.:

This is an appeal by Maria S. Noble from an order of the Court of First Instance of Batangas (in Sp. Proc. No.
343), dismissing her opposition to the probate of the purported last will of the late Don Vicente Noble, who
died on April 25, 1959.

The proceedings for the probate of the last will of the deceased was instituted by Juan Noble who was
named executor therein and who had expressed willingness to assume the trust. This was opposed by
Maria S. Noble, who claimed to be an illegitimate (spurious) child of the deceased, born on July 22, 1923
out of an illicit relation between the latter and Lucia Sinag. It was alleged that the will sought to be
probated, dated August 25, 1957, was not the last will and testament of the late Don Vicente Noble; that
from all indications as shown by a perusal of the alleged last will of the deceased, the same was not
executed in accordance with the law, and that the said will was executed through undue influence, mistake
and improper pressure on the part of one or some of the beneficiaries, and that petitioner Juan Noble, as
then incumbent Assistant General Manager of the NAMARCO, a government corporation could not properly
execute the trust of his office in the estate of the deceased, which consists of real and personal properties
located in several provinces. Furthermore, oppositor contended that petitioner has an adverse interest
against those immediately interested in the estate, like her. Thus, she prayed that the purported last Will
and Testament presented to the court be disallowed; that she be declared the only surviving illegitimate
daughter of the deceased; and in case the will sought to be probated be allowed, the institution of heirs
made therein be declared null and void; the devises and legacies be declared ineffective for being
inofficious; and oppositor be declared entitled to one-half of the entire hereditary estate of the deceased;
that instead of petitioner, letters of administration be issued in favor of Mrs. Corazon Apacible de Caiza of
Taal, Batangas. Simultaneously, she filed a motion asking for permission to present evidence of her alleged
filiation with the deceased. This motion was opposed by petitioner Juan Noble, on the ground that the
claim was in effect an action for compulsory recognition, and since it was brought after the death of the
putative father and when claimant was already of majority age, the right to bring the same has already
prescribed pursuant to Article 285 of the new Civil Code. 1 This motion was not immediately resolved.
Instead, the court proceeded with the reception of the evidence for the petitioner, during which
proceeding, the oppositor was allowed to cross-examine the petitioner's witnesses.
Finding, on the basis of the evidence presented by the petitioner, that the document, Exhibit "D", and its
copies, Exhibits "D-1" to "D-12", constitute the last will and testament of the deceased Vicente Noble, and
it was executed with all the formal requirements of the law, the aforesaid will was admitted to probate, and
Juan Noble was appointed administrator of the estate upon a bond of P30,000.00. It was also ruled that the
petition of Maria S. Noble to present proof for the purpose of establishing her filiation, filed after the death
of the presumed father, had been barred by prescription. Consequently, the motion to dismiss the petition
of Maria S. Noble was granted. Oppositor appealed.

The main issue presented in this case requiring resolution by this Court is: what is necessary to be
established by an illegitimate not natural child in order that he may be entitled to successional rights
under Article 887 of the new Civil Code, the fact of his bare filiation, or a filiation acknowledged by the
putative parent?

While the Civil Code merely provides that "in all cases of illegitimate children, their filiation must be duly
proved" (Art. 887), there are cogent reasons, both legal and moral, which require that such filiation must
be acknowledged by the presumed parent. For, if the mere fact of the paternity of the supposed father is
all that need be proved, that construction of the law would pave the way to unscrupulous individuals
taking advantage of the death of the presumed parent who would no longer be in a position to deny the
allegations, to present even fictitious claims and expose the life of the deceased to inquiries affecting his
character.

But more important than this, the law could not have demanded anything less than proof of an
acknowledged filiation. Precisely, under Article 289 of the new Civil Code, the investigation of the paternity
or maternity of children mentioned in the two preceding articles (referring to illegitimate not natural
children) is specifically permitted only in the circumstances enumerated in Articles 283 and 284 of the
same code. It must be noted that these two articles refer to compulsory recognition or acknowledgment.
Hence, since the proof of filiation required in Article 887, necessarily involves the investigation mentioned
in Article 289, and this investigation in turn refers to recognition by the putative parent, it follows that the
filiation to be proven must be one that is recognized.

In the present case, what is intended to be proved by appellant is simply the supposed naked paternity of
the deceased. This is evident from the pertinent allegations of her opposition to the probate of the will,
which state:

2. That the oppositor is in continuous possession of status of a child of the late Don Vicente Noble
by the direct acts of the latter and/or his family; and, that the oppositor has in her favor evidence
and/or proof that the late Don Vicente Noble is her father.

It may be pointed out that the first sentence does not state that the supposed father had recognized or
acknowledged the oppositor as his child. It is merely claimed that she was in continuous possession of the
status of a child, an allegation which is a ground for compelling recognition under Article 283 of the new
Civil Code and, therefore, presupposes no previous recognition. The last sentence alleges that oppositor
has in her favor evidence and/or proof that the late Don Vicente Noble is her father. Again, there is no
assertion that she has evidence that the deceased had recognized or acknowledged her as such a child.

In a unanimous decision, in the case of Paulino v. Paulino (G.R. No. L-15091, Dec. 28, 1961), this Court
held:

It is true that by their motion to dismiss the appellees are deemed to have admitted that the
appellant is the illegitimate spurious, not natural, child of the deceased Marcos Paulino. Such an
admission, however, does not entitle her to inherit from her alleged putative father. It is necessary
to allege that her putative father had acknowledged and recognized her as such. Such
acknowledgment is essential and is the basis of her right to inherit. There being no allegation of
such acknowledgment the action becomes one to compel recognition which can not be brought
after the death of the putative father. (Emphasis supplied.)

This is authority to the declaration that acknowledgment is the basis of the right of a spurious child to
enjoy the successional rights mentioned in Articles 287 and 887 of the new Civil Code. There being no
allegation of her recognition or acknowledgment by the alleged father in the petition to establish her
filiation, the same, therefore, states no cause of action and the dismissal thereof by the lower court was
proper.

Incidentally, the last sentence of the above-quoted portion of the decision in the Paulino case constitutes a
reversal of the ruling contained in the majority opinion in the case of Zuzuarregui v. Zuzuarregui (G.R. No.
L-10010, Oct. 31, 1957) relied upon by the appellant.

WHEREFORE, the order appealed from is hereby affirmed, with costs against appellant. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Castro
---------------------

ALICE REYES VAN DORN, petitioner,

vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the
National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders,
dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge,
which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order,
respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a
citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they
established their residence in the Philippines; that they begot two children born on April 4, 1973 and
December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and
that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional
Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon
Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to render an
accounting of that business, and that private respondent be declared with right to manage the conjugal
property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous
judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged that
he and petitioner had "no community property" as of June 11, 1982. The Court below denied the Motion to
Dismiss in the mentioned case on the ground that the property involved is located in the Philippines so
that the Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari
proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal.
certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of the
trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court acted
capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its
supervisory authority and to correct the error committed which, in such a case, is equivalent to lack of
jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of time to go ahead with the
proceedings. 2 Weconsider the petition filed in this case within the exception, and we have given it due
course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the
Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property
because of the representation he made in the divorce proceedings before the American Court that they
had no community of property; that the Galleon Shop was not established through conjugal funds, and that
respondent's claim is barred by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the
prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a
foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of
jurisdiction to entertain matters within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations between
petitioner and private respondent, after their marriage, were upon absolute or relative community
property, upon complete separation of property, or upon any other regime. The pivotal fact in this case is
the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private
respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his
attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility in
the understanding that there were neither community property nor community obligations. 3 As explicitly
stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty,
Reno, Nevada, to represent him in the divorce proceedings:

xxx xxx xxx

 You are hereby authorized to accept service of Summons, to file an Answer, appear on my
behalf and do an things necessary and proper to represent me, without further contesting,
subject to the following:

1. That my spouse seeks a divorce on the ground of incompatibility.

2. That there is no community of property to be adjudicated by the Court.

3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx 4

There can be no question as to the validity of that Nevada divorce in any of the States of the United States.
The decree is binding on private respondent as an American citizen. For instance, private respondent
cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that
the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public
policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine
nationals are covered by the policy against absolute divorces the same being considered contrary to our
concept of public police and morality. However, aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law. 6 In this case, the
divorce in Nevada released private respondent from the marriage from the standards of American law,
under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States
in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband and
wife, and to free them both from the bond. The marriage tie when thus severed as to one
party, ceases to bind either. A husband without a wife, or a wife without a husband, is
unknown to the law. When the law provides, in the nature of a penalty. that the guilty party
shall not marry again, that party, as well as the other, is still absolutely freed from the bond
of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would
have no standing to sue in the case below as petitioner's husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised
jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation
before said Court from asserting his right over the alleged conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married
to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code
cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and
render support to private respondent. The latter should not continue to be one of her heirs with possible
rights to conjugal property. She should not be discriminated against in her own country if the ends of
justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint
filed in Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

-----------------------

INTESTATE ESTATE OF PETRA V. ROSALES, IRENEA C. ROSALES, petitioner,

vs.
FORTUNATO ROSALES, MAGNA ROSALES ACEBES, MACIKEQUEROX ROSALES and ANTONIO
ROSALES,respondents.

Jose B. Echaves for petitioner.

Jose A. Binghay and Paul G. Gorres for respondents.

GANCAYCO, J.:

In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu the question raised is
whether the widow whose husband predeceased his mother can inherit from the latter, her mother-in-law.

It appears from the record of the case that on February 26, 1971, Mrs. Petra V. Rosales, a resident of Cebu
City, died intestate. She was survived by her husband Fortunate T. Rosales and their two (2) children
Magna Rosales Acebes and Antonio Rosales. Another child, Carterio Rosales, predeceased her, leaving
behind a child, Macikequerox Rosales, and his widow Irenea C. Rosales, the herein petitioner. The estate of
the dismissed has an estimated gross value of about Thirty Thousand Pesos (P30,000.00).

On July 10, 1971, Magna Rosales Acebes instituted the proceedings for the settlement of the estate of the
deceased in the Court of First Instance of Cebu. The case was docketed as Special Proceedings No. 3204-R.
Thereafter, the trial court appointed Magna Rosales Acebes administratrix of the said estate.

In the course of the intestate proceedings, the trial court issued an Order dated June 16, 1972 declaring
the following in individuals the legal heirs of the deceased and prescribing their respective share of the
estate

Fortunata T. Rosales (husband), 1/4; Magna R. Acebes (daughter), 1/4; Macikequerox

Rosales, 1/4; and Antonio Rosales son, 1/4.

This declaration was reiterated by the trial court in its Order I dated February 4, 1975.

These Orders notwithstanding, Irenea Rosales insisted in getting a share of the estate in her capacity as
the surviving spouse of the late Carterio Rosales, son of the deceased, claiming that she is a compulsory
heir of her mother-in-law together with her son, Macikequerox Rosales.

Thus, Irenea Rosales sought the reconsideration of the aforementioned Orders. The trial court denied her
plea. Hence this petition.

In sum, the petitioner poses two (2) questions for Our resolution petition. First is a widow (surviving
spouse) an intestate heir of her mother-in-law? Second are the Orders of the trial court which excluded
the widow from getting a share of the estate in question final as against the said widow?

Our answer to the first question is in the negative.

Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own right, and
those who inherit by the right of representation. 1 Restated, an intestate heir can only inherit either by his
own right, as in the order of intestate succession provided for in the Civil Code, 2 or by the right of
representation provided for in Article 981 of the same law. The relevant provisions of the Civil Code are:

Art. 980. The children of the deceased shall always inherit from him in their own right,
dividing the inheritance in equal shares.

Art. 981. Should children of the deceased and descendants of other children who are dead,
survive, the former shall inherit in their own right, and the latter by right of representation.

Art. 982. The grandchildren and other descendants shag inherit by right of representation,
and if any one of them should have died, leaving several heirs, the portion pertaining to him
shall be divided among the latter in equal portions.

Art. 999. When the widow or widower survives with legitimate children or their descendants
and illegitimate children or their descendants, whether legitimate or illegitimate, such widow
or widower shall be entitled to the same share as that of a legitimate child.

There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate heir of
her mother-in-law. The entire Code is devoid of any provision which entitles her to inherit from her mother-
in- law either by her own right or by the right of representation. The provisions of the Code which relate to
the order of intestate succession (Articles 978 to 1014) enumerate with meticulous exactitude the
intestate heirs of a decedent, with the State as the final intestate heir. The conspicuous absence of a
provision which makes a daughter-in-law an intestate heir of the deceased all the more confirms Our
observation. If the legislature intended to make the surviving spouse an intestate heir of the parent-in-law,
it would have so provided in the Code.

Petitioner argues that she is a compulsory heir in accordance with the provisions of Article 887 of the Civil
Code which provides that:

Art. 887. The following are compulsory heirs:

 (1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287;

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2;
neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit
from them in the manner and to the extent established by this Code.

The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the surviving
spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-in-law.

Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in-law. We
had occasion to make this observation in Lachenal v. Salas, 4 to Wit:

We hold that the title to the fishing boat should be determined in Civil Case No. 3597 (not in
the intestate proceeding) because it affects the lessee thereof, Lope L. Leoncio, the
decedent's son-in-law, who, although married to his daughter or compulsory heir, is
nevertheless a third person with respect to his estate. ... (Emphasis supplied).

By the same token, the provision of Article 999 of the Civil Code aforecited does not support petitioner's
claim. A careful examination of the said Article confirms that the estate contemplated therein is the estate
of the deceased spouse. The estate which is the subject matter of the intestate estate proceedings in this
case is that of the deceased Petra V. Rosales, the mother-in-law of the petitioner. It is from the estate of
Petra V. Rosales that Macikequerox Rosales draws a share of the inheritance by the right of representation
as provided by Article 981 of the Code.

The essence and nature of the right of representation is explained by Articles 970 and 971 of the Civil
Code, viz

Art. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented, and acquires
the rights which the latter would have if he were living or if he could have inherited.

Art. 971. The representative is called to the succession by the law and not by the person
represented. The representative does not succeed the person represented but the one
whom the person represented would have succeeded. (Emphasis supplied.)

Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of his
blood relationship. He does not succeed his father, Carterio Rosales (the person represented) who
predeceased his grandmother, Petra Rosales, but the latter whom his father would have succeeded.
Petitioner cannot assert the same right of representation as she has no filiation by blood with her mother-
in-law.

Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an
inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may, said
right of her husband was extinguished by his death that is why it is their son Macikequerox Rosales who
succeeded from Petra Rosales by right of representation. He did not succeed from his deceased father,
Carterio Rosales.

On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon the
second question posed by the petitioner.

Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse is not an intestate heir of
his or her parent-in-law.

WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack of merit, with costs against
the petitioner. Let this case be remanded to the trial-court for further proceedings.
SO ORDERED.

-------------------

LAURO G. VIZCONDE, petitioner, vs., COURT OF APPEALS, REGIONAL TRIAL COURT, Branch 120,
Caloocan City, and RAMON G. NICOLAS, respondents.

DECISION

FRANCISCO, J.:

Petitioner Lauro G. Vizconde and his wife Estrellita Nicolas-Vizconde had two children, viz., Carmela
and Jennifer. Petitioners wife, Estrellita, is one of the five siblings of spouses Rafael Nicolas and Salud
Gonzales-Nicolas.The other children of Rafael and Salud are Antonio Nicolas; Ramon Nicolas; Teresita
Nicolas de Leon, and Ricardo Nicolas, an incompetent. Antonio predeceased his parents and is now
survived by his widow, Zenaida, and their four children.

On May 22, 1979, Estrellita purchased from Rafael a parcel of land with an area of 10,110 sq. m.
located at Valenzuela, Bulacan (hereafter Valenzuela property) covered by TCT No. (T-36734) 13206 for
One Hundred Thirty Five Thousand Pesos (P135,000.00), evidenced by a Lubusang Bilihan ng Bahagi ng
Lupa na Nasasakupan ng Titulo TCT NO. T-36734.[1] In view thereof, TCT No. V-554 covering the Valenzuela
property was issued to Estrellita.[2] On March 30, 1990, Estrellita sold the Valenzuela property to Amelia Lim
and Maria Natividad Balictar Chiu for Three Million, Four Hundred Five Thousand, Six Hundred Twelve Pesos
(P3,405,612.00).[3] In June of the same year, Estrellita bought from Premiere Homes, Inc., a parcel of land
with improvements situated at Vinzon St., BF Homes, Paraaque (hereafter Paraaque property) using a
portion of the proceeds was used in buying a car while the balance was deposited in a bank.

The following year an unfortunate event in petitioners life occurred. Estrellita and her two daughters,
Carmela and Jennifer, were killed on June 30, 1991, an incident popularly known as the Vizconde
Massacre. The findings of the investigation conducted by the NBI reveal that Estrellita died ahead of her
daughters.[4] Accordingly, Carmela, Jennifer and herein petitioner succeeded Estrellita and, with the
subsequent death of Carmela and Jennifer, petitioner was left as the sole heir of his
daughters. Nevertheless, petitioner entered into an Extra-Judicial Settlement of the Estate of Deceased
Estrellita Nicolas-Vizconde With Waiver of Shares,[5] with Rafael and Salud, Estrellitas parents. The extra-
judicial settlement provided for the division of the properties of Estrellita and her two daughters between
petitioner and spouses Rafael and Salud. The properties include bank deposits, a car and the Paraaque
property. The total value of the deposits deducting the funeral and other related expenses in the burial of
Estrellita, Carmela and Jennifer, amounts to Three Million Pesos (P3,000,000.00).[6] The settlement gave
fifty percent (50%) of the total amount of the bank deposits of Estrellita and her daughters to Rafael,
except Saving Account No. 104-111211-0 under the name of Jennifer which involves a token amount. The
other fifty percent (50%) was allotted to petitioner. The Paraaque property and the car were also given to
petitioner with Rafael and Salud waiving all their claims, rights, ownership and participation as heirs[7] in
the said properties.

On November 18, 1992, Rafael died. To settle Rafaels estate, Teresita instituted an intestate estate
proceeding[8] docketed as Sp. Proc. No. C-1679, with Branch 120 of the Regional Trial Court (RTC) of
Caloocan City listing as heirs Salud, Ramon, Ricardo and the wife (Zenaida) and children of
Antonio. Teresita prayed to be appointed Special Administratrix of Rafaels estate. Additionally, she sought
to be appointed as guardian ad litem of Salud, now senile, and Ricardo, her incompetent brother. Herein
private respondent Ramon filed an opposition[9] dated March 24, 1993, praying to be appointed instead as
Salud and Ricardos guardian. Barely three weeks passed, Ramon filed another opposition [10] alleging,
among others, that Estrellita was given the Valenzuela property by Rafael which she sold for not les than
Six Million Pesos (P6,000,000.00) before her gruesome murder. Ramon pleaded for courts intervention to
determine the legality and validity of the intervivos distribution made by deceased Rafael to his children,
[11]
Estrellita included. On May 12, 1993, Ramon filed his own petition, docketed as Sp. Proc. No. C-1699,
entitled InMatter Of The Guardianship Of Salud G. Nicolas and Ricardo G. Nicolas and averred that their
legitime should come from the collation of all the properties distributed to his children by Rafael during his
lifetime.[12] Ramon stated that herein petitioner is one of Rafaels children by right of representation as the
widower of deceased legitimate daughter of Estrellita.[13]

In a consolidated Order, dated November 9, 1993, the RTC appointed Ramon as the Guardian of Salud
and Ricardo while Teresita, in turn, was appointed as the Special Administratrix of Rafaels estate. The
courts Order did not include petitioner in the slate of Rafaels heirs. [14] Neither was the Paraaque property
listed in its list of properties to be included in the estate. [15] Subsequently, the RTC in an Order dated
January 5, 1994, removed Ramon as Salud and Ricardos guardian for selling his wards property without the
courts knowledge and permission.[16]

Sometime on January 13, 1994, the RTC released an Order giving petitioner ten (10) days x x x within
which to file any appropriate petition or motion related to the pending petition insofar as the case is
concerned and to file any opposition to any pending motion that has been filed by both the counsels for
Ramon Nicolas and Teresita de Leon. In response, petitioner filed a Manifestation, dated January 19, 1994,
stressing tha the was neither a compulsory heir nor an intestate heir of Rafael and he has no interest to
participate in the proceedings. The RTC noted said Manifestation in its Order dated February 2, 1994.
[17]
Despite the Manifestation, Ramon, through a motion dated February 14, 1994, moved to include
petitioner in the intestate estate proceeding and asked that the Paraaque property, as well as the car and
the balance of the proceeds of the sale of the Valenzuela property, be collated. [18] Acting on Ramons
motion, the trial court on March 10, 1994 granted the same in an Order which pertinently reads as follows:

xxxxxxxxx

On the Motion To Include Lauro G. Vizconde In Intestate proceedings in instant case and considering the
comment on hi Manifestation, the same is hereby granted.[19]

xxxxxxxxx

Petitioner filed its motion for reconsideration of the aforesaid Order which Ramon opposed. [20] On
August 12, 1994, the RTC rendered an Order denying petitioners motion for reconsideration. It provides:

xxxxxxxxx

The centerpoint of oppositor-applicants argument is that spouses Vizconde were then financially incapable
of having purchased or acquired for a valuable consideration the property at Valenzuela from the deceased
Rafael Nicolas. Admittedly, the spouses Vizconde were then living with the deceased Rafael Nicolas in the
latters ancestral home. In fact, as the argument further goes, said spouses were dependent for support on
the deceased Rafael Nicolas. And Lauro Vizconde left for the United States in, de-facto separation, from the
family for sometime and returned to the Philippines only after the occurrence of violent deaths of Estrellita
and her two daughters.

To dispute the contention that the spouses Vizconde were financially incapable to buy the property from
the late Rafael Nicolas, Lauro Vizconde claims that they have been engaged in business venture such as
taxi business, canteen concessions and garment manufacturing. However, no competent evidence has
been submitted to indubitably support the business undertakings adverted to.

In fine, there is no sufficient evidence to show that the acquisition of the property from Rafael Nicolas was
for a valuable consideration.

Accordingly, the transfer of the property at Valenzuela in favor of Estrellita by her father was gratuitous
and the subject property in Paraaque which was purchased out of the proceeds of the said transfer of
property by the deceased Rafael Nicolas in favor of Estrellita, is subject to collation.

WHEREFORE, the motion for reconsideration is hereby DENIED.[21] (Underscoring added)

Petitioner filed a petition for certiorari and prohibition with respondent Court of Appeals. In its decision of
December 14, 1994, respondent Court of Appeals [22] denied the petition stressing that the RTC correctly
adjudicated the question on the title of the Valenzuela property as the jurisdiction of the probate court
extends to matters incidental and collateral to the exercise of its recognized powers in handling the
settlement of the estate of the deceased (Cf.: Sec. 1, Rule 90, Revised Rules of Court). [23] Dissatisfied,
petitioner filed the instant petition for review on certiorari. Finding prima facie merit, the Court on
December 4, 1995, gave due course to the petition and required the parties to submit their respective
memoranda.

The core issue hinges on the validity of the probate courts Order, which respondent Court of Appeals
sustained, nullifying the transfer of the Valenzuela property from Rafael to Estrellita and declaring the
Paraaque property as subject to collation.

The appeal is well taken.

Basic principles of collation need to be emphasized at the outset. Article 1061 of the Civil Code speaks
of collation. It states:

Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of
the estate any property or right which he may have received from the decedent, during the lifetime of the
latter, by way of donation, or any other gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of the partition.

Collation is the act by virtue of which descendants or other forced heirs who intervene in the division
of the inheritance of an ascendant bring into the common mass, the property which they received from
him, so that the division may be made according to law and the will of the testator. [24] Collation is only
required of compulsory heirs succeeding with other compulsory heirs and involves property or rights
received by donation or gratuitous title during the lifetime of the decedent. [25] The purpose for it is
presumed that the intention of the testator or predecessor in interest in making a donation or gratuitous
transfer to a forced heir is to give him something in advance on account of his share in the estate, and that
the predecessors will is to treat all his heirs equally, in the absence of any expression to the contrary.
[26]
Collation does not impose any lien on the property or the subject matter of collationable donation. What
is brought to collation is not the property donated itself, but rather the value of such property at the time it
was donated,[27] the rationale being that the donation is a real alienation which conveys ownership upon its
acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir
or donee.[28]

The attendant facts herein do no make a case of collation. We find that the probate court, as well as
respondent Court of Appeals, committed reversible errors.

First: The probate court erred in ordering the inclusion of petitioner in the intestate estate
proceeding. Petitioner, a son-in-law of Rafael, is one of Rafaels compulsory heirs. Article 887 of the Civil
Code is clear on this point:

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the following, legitimate parents and ascendants, with respect to their legitimate children
and ascendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos 1 and 2; neither do they
exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the
manner and to the extent established by this Code.

With respect to Rafaels estate, therefore, petitioner who was not even shown to be a creditor of Rafael is
considered a third person or a stranger. [29] As such, petitioner may not be dragged into the intestate estate
proceeding.Neither may he be permitted or allowed to intervene as he has no personality or interest in the
said proceeding,[30] which petitioner correctly argued in his manifestation.[31]

Second: As a rule, the probate court may pass upon and determine the title or ownership of a property
which may or may not be included in the estate proceedings. [32] Such determination is provisional in
character and is subject to final decision in a separate action to resolve title. [33] In the case at bench,
however, we note that the probate court went beyond the scope of its jurisdiction when it proceeded to
determine the validity of the sale of the Valenzuela property between Rafael and Estrellita and ruled that
the transfer of the subject property between the concerned parties was gratuitous. The interpretation of
the deed and the true intent of the contracting parties, as well as the presence or absence of
consideration, are matter outside the probate courts jurisdiction. These issues should be ventilated in an
appropriate action. We reiterate:

x x x we are of the opinion and so hold, that a court which takes cognizance of testate or intestate
proceedings has power and jurisdiction to determine whether or not the properties included therein or
excluded therefrom belongprima facie to the deceased, although such a determination is not final or
ultimate in nature, and without prejudice to the right of the interested parties, in a proper action, to raise
the question bearing on the ownership or existence of the right or credit. [34]

Third: The order of the probate court subjecting the Paraaque property to collation is
premature. Records indicate that the intestate estate proceedings is still in its initiatory stage. We find
nothing herein to indicate that the legitimate of any of Rafaels heirs has been impaired to warrant
collation. We thus advert to our ruling in Udarbe v. Jurado, 59 Phil. 11, 13-14, to wit:

We are of the opinion that this contention is untenable. In accordance with the provisions of article
1035[35] of the Civil Code, it was the duty of the plaintiffs to allege and prove that the donations received
by the defendants were inofficious in whole or in part and prejudiced the legitimate or hereditary portion to
which they are entitled. In the absence of evidence to that effect, the collation sought is untenable for lack
of ground or basis therefor.

Fourth: Even on the assumption that collation is appropriate in this case the probate court,
nonetheless, made a reversible error in ordering collation of the Paraaque property. We note that what was
transferred to Estrellita, by way of a deed of sale, is the Valenzuela property. The Paraaque property which
Estrellita acquired by using the proceeds of the sale of the Valenzuela property does not become
collationable simply by reason thereof. Indeed collation of the Paraaque property has no statutory basis.
[36]
The order of the probate court presupposes that the Paraaque property was gratuitously conveyed by
Rafael to Estrellita. Records indicate, however, that the Paraaque property was conveyed for and in
consideration of P900,000.00,[37] by Premier Homes, Inc., to Estrellita. Rafael, the decedent, has no
participation therein, and petitioner who inherited and is now the present owner of the Paraaque property
is not one of Rafaels heirs. Thus, the probate courts order of collation against petitioner is unwarranted for
the obligation to collate is lodged with Estrellita, the heir, and not to herein petitioner who does not have
any interest in Rafaels estate. As it stands, collation of the Paraaque property is improper for, to repeat,
collation covers only properties gratuitously given by the decedent during his lifetime to his compulsory
heirs which fact does not obtain anent the transfer of the Paraaque property. Moreover, Rafael, in a public
instrument, voluntarily and willfully waived any claims, rights, ownership and participation as heir [38] in the
Paraaque property.

Fifth: Finally, it is futile for the probate court to ascertain whether or not the Valenzuela property may
be brought to collation. Estrellita, it should be stressed, died ahead of Rafael. In fact, it was Rafael who
inherited from Estrellita an amount more than the value of the Valenzuela property. [39] Hence, even
assuming that the Valenzuela property may be collated collation may not be allowed as the value of the
Valenzuela property has long been returned to the estate of Rafael. Therefore, any determination by the
probate court on the matter serves no valid and binding purpose.

WHEREFORE, the decision of the Court of Appeals appealed from is hereby REVERSED AND SET
ASIDE.

SO ORDERED.

Narvasa, C.J., (Chairman), Romero, Kapunan, and Purisima, JJ., concur.

===============

G.R. No. L-26270 October 30, 1969

BONIFACIA MATEO, ET AL., petitioners,

vs.
GERVASIO LAGUA, ET AL., respondents.

Pedro P. Tuason for petitioners.

Isaiah Asuncion for respondents.

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

This is a petition for review of the decision of the Court of Appeals (In CA-G.R. Nos. 30064-R and 30065-R),
raising as only issue the correctness of the appellate court's reduction of a donation propter nuptias, for
being inofficious.

The established facts of this case are as follows:

Cipriano Lagua was the original registered owner of 3 parcels of land situated in Asingan, Pangasinan,
referred to as Lot No. 998, with an area of 11,080 sq.m., more or less and covered by O.C.T. No. 362; Lot
No. 6541, with an area of 808 sq.m., more or less, covered by O.C.T. No. 6618; and Lot No. 5106, with an
area of 3,303 sq.m., covered by O.C.T. No. 8137. Sometime in 1917, Lagua and his wife Alejandra Dumlao,
in a public instrument, donated Lots 998 and 6541 to their son Alejandro Lagua, in consideration of the
latter's marriage to Bonifacia Mateo. The marriage was celebrated on 15 May 1917, and thereafter, the
couple took possession of the properties, but the Certificates of Title remained in the donor's name.

In 1923, the son, Alejandro, died. His widow, Bonifacia Mateo, and her infant daughter lived with her
father-in-law, Cipriano Lagua, who then undertook the farming of the donated lots. It seems that at the
start, Cipriano Lagua was giving to Bonifacia the owner's share of the harvest from the land. In 1926,
however, Cipriano refused to deliver the said share, thus prompting Bonifacia to resort to the Justice of the
Peace Court of Asingan, Pangasinan, from where she obtained a judgment awarding to her possession of
the two lots plus damages.
On 31 July 1941, Cipriano Lagua, executed a deed of sale of the same two parcels of land in favor of his
younger son, Gervasio. This sale notwithstanding, Bonifacia Mateo was continuously given the owner's
share of the harvest until 1956, when it was altogether stopped. It was only then that Bonifacia Mateo
learned of the sale of the lots to her brother-in-law, who had the sale in his favor registered only on 22
September 1955. As a consequence, TCT Nos. 19152 and 19153 of the Register of Deeds of Pangasinan
were issued to Gervasio.

Bonifacia Mateo and her daughter, Anatalia, assisted by her husband, Luis Alcantara, went to the Court of
First Instance of Pangasinan (Civil Case No. T-339), seeking annulment of the deed of sale in favor of
Gervasio Lagua and for recovery of possession of the properties. On 3 January 1957, judgment was
rendered in the case

... declaring the sale executed by Cipriano Lagua in favor of the other defendants, Gervasio Lagua
and Sotera Casimero, as null and void and non-existent; ordering the Register of Deeds for the
Province of Pangasinan, to cancel Transfer Certificates of Title Nos. 19152 and 19153; condemning
the defendants to pay jointly and severally to the plaintiffs the sum of P200.00; ordering the
defendants Gervasio Lagua and Sotera Lagua to vacate and deliver the possession over the two
parcels of land to the plaintiffs, and to pay the costs of this suit.

The decision became final, and Bonifacia Mateo, and her daughter, Anatalia Lagua, were installed in
possession of the land.

On 18 August 1957, the spouses Gervasio Lagua and Sotera Casimero commenced in the Justice of the
Peace Court of Asingan, Pangasinan, an action against Bonifacia Mateo and her daughter for
reimbursement of the improvements allegedly made by them on Lots 998 and 6541, plus damages.
Dismissed by the Justice of the Peace Court for being barred by the judgment in Civil Case No. T-339,
therein plaintiffs appealed to the Court of First Instance of Pangasinan where the case was docketed as
Civil Case No. T-433. At about the same time, another case was filed, this time by Gervasio Lagua and
Cipriano Lagua, for annulment of the donation of the two lots, insofar as one-half portion thereof was
concerned (civil Case No. T-442). It was their claim that in donating the two lots, which allegedly were all
that plaintiff Cipriano Lagua owned, said plaintiff not only neglected leaving something for his own support
but also prejudiced the legitime of his forced heir, plaintiff Gervasio Lagua.

Being intimately related, the two cases were heard jointly. On November 12, 1958, while the cases were
pending final resolution, plaintiff Cipriano Lagua died. On 23 December 1960, the court rendered a single
decision dismissing Civil Case No. T-433 for lack of cause of action, plaintiffs spouses Gervasio Lagua and
Sotera Casimero having been declared possessors in bad faith in Civil Case No. T-339 and, therefore, not
entitled to any reimbursement of the expenses and improvements put up by them on the land. The other
suit, Civil Case No. T-442, was, likewise, dismissed on the ground of prescription, the action to annul the
donation having been brought only in 1958, or after the lapse of 41 years. Defendants' counterclaims were
similarly dismissed although they were awarded attorneys' fees in the sum of P150.00.

Plaintiffs appealed the decision to the Court of Appeals (CA-G.R. Nos. 30064 and 30065-R). Said tribunal,
on 18 March 1966, affirmed the ruling of the trial court in Civil Case No. T-433 denying plaintiffs' claim for
reimbursement of the improvements said to have been made on the land. In regard to the annulment case
(C.F.I. No. T-442), however, the Court of Appeals held that the donation to Alejandro Lagua of the 2 lots
with a combined area of 11,888 square meters execeeded by 494.75 square meters his (Alejandro's)
legitime and the disposable portion that Cipriano Lagua could have freely given by will, and, to the same
extent prejudiced the legitime of Cipriano's other heir, Gervasio Lagua. The donation was thus declared
inofficious, and defendants-appellees were ordered to reconvey to plaintiff Gervasio Lagua a portion of
494.15 square meters to be taken from any convenient part of the lots. The award of attorneys' fees to the
defendants was also eliminated for lack of proper basis.

Bonifacia Mateo, et al., then resorted to this Court, assailing the decision of the Court of Appeals insofar as
it ordered them to reconvey a portion of the lots to herein respondent Gervasio Lagua. It is petitioners'
contention that (1) the validity of the donation proper nuptias having been finally determined in Civil Case
No. T-339, any question in derogation of said validity is already barred; (2) that the action to annul the
donation, filed in 1958, or 41 years after its execution, is abated by prescription; (3) that a donation proper
nuptias is revocable only for any of the grounds enumerated in Article 132 of the new Civil Code, and
inofficiousness is not one of thorn; and (4) that in determining the legitime of the Lagua brothers in the
hereditary estate of Cipriano Lagua, the Court of Appeals should have applied the provisions of the Civil
Code of 1889, and not Article 888 of the new Civil Code.

Petitioners' first two assigned errors, it may be stated, are non-contentious issues that have no bearing in
the actual controversy in this case. All of them refer to the validity of the donation a matter which was
definitively settled in Civil Case No. T-339 and which, precisely, was declared by the Court of Appeals to be
"beyond the realm of judicial inquiry." In reality, the only question this case presents is whether or not the
Court of Appeals acted correctly in ordering the reduction of the donation for being inofficious and in
ordering herein petitioners to reconvey to respondent Gervasio Lagua an unidentified 494.75 square-meter
portion of the donated lots.

We are in accord with the Court of Appeals that Civil Case No. 442 is not one exclusively for annulment or
revocation of the entire donation, but of merely that portion thereof allegedly trenching on the legitime of
respondent Gervasio Lagua;1 that the cause of action to enforce Gervasio's legitime, having accrued only
upon the death of his father on 12 November 1958, the dispute has to be governed by the pertinent
provisions of the new Civil Code; and that a donation proper nuptias property may be reduced for being
inofficious. Contrary to the views of appellants (petitioners), donations proper nuptias (by reason of
marriage) are without onerous consideration, the marriage being merely the occasion or motive for the
donation, not its causa. Being liberalities, they remain subject to reduction for inofficiousness upon the
donor's death, if they should infringe the legitime of a forced heir. 2

It is to be noted, however, that in rendering the judgment under review, the Court of Appeals acted on
several unsupported assumptions: that the three (3) lots mentioned in the decision (Nos. 998, 5106 and
6541) were theonly properties composing the net hereditary estate of the deceased Cipriano Lagua; that
Alejandro Lagua and Gervasio Lagua were his only legal heirs; that the deceased left no unpaid debts,
charges, taxes, etc., for which the estate would be answerable. 3 In the computation of the heirs' legitime,
the Court of Appeals also considered only the area, not the value, of the properties.

The infirmity in the above course of action lies in the fact that in its Article 908 the new Civil Code
specifically provides as follows:

ART. 908. To determine the legitime, the value of the property left at the death of the testator shall
be considered, deducting all debts, and charges, which shall not include those imposed in the will.

To the net value of the hereditary estate, shall be added the value of all donations by the testator
that are subject to collation, at the time he made them.

In other words, before any conclusion about the legal share due to a compulsory heir may be reached, it is
necessary that certain steps be taken first. The net estate of the decedent must be ascertained, by
deducting an payable obligations and charges from the value of the property owned by the deceased at
the time of his death; then, all donations subject to collation would be added to it. With the partible estate
thus determined, the legitimes of the compulsory heir or heirs can be established; and only thereafter can
it be ascertained whether or not a donation had prejudiced the legitimes. Certainly, in order that a
donation may be reduced for being inofficious, there must be proof that the value of the donated property
exceeds that of the disposable free portion plus the donee's share as legitime in the properties of the
donor.4 In the present case, it can hardly be said that, with the evidence then before the court, it was in
any position to rule on the inofficiousness of the donation involved here, and to order its reduction and
reconveyance of the deducted portion to the respondents.

FOR THE FOREGOING CONSIDERATIONS, the decision of the Court of Appeals, insofar as Civil Case No. 442
of the court a quo is concerned, is hereby set aside and the trial court's order of dismissal sustained,
without prejudice to the parties' litigating the issue of inofficiousness in a proper proceeding, giving due
notice to all persons interested in the estate of the late Cipriano Lagua. Without costs.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Teehankee and Barredo,
JJ., concur

-------------------------------

PARTENZA LUCERNA VDA. DE TUPAS, petitioner-appellant,

vs.
BRANCH XLIII of the HON. REGIONAL TRIAL COURT OF NEGROS OCCIDENTAL, respondent, and
TUPAS FOUNDATION, INC., private respondent-appellee.

Abraham D. Caa for petitioner-appellant.

Jose R. Edis for private respondent-appellee.

NARVASA, J.:

Involved in this appeal is the question of whether or not a donation inter vivos by a donor now deceased is
inofficious and should be reduced at the instance of the donor's widow.

Epifanio R. Tupas died on August 20, 1978 in Bacolod City, childless, leaving his widow, Partenza Lucerna,
as his only surviving compulsory heir. He also left a win dated May 18, 1976, which was admitted to
probate on September 30, 1980 in Special Proceedings No. 13994 of the Court of First Instance of Negros
Occidental. Among the assets listed in his will were lots Nos. 837, 838 and 839 of the Sagay Cadastre,
admittedly his private capital. However, at the time of his death, these lots were no longer owned by him,
he having donated them the year before (on August 2, 1977) to the Tupas Foundation, Inc., which had
thereafter obtained title to said lots.

Claiming that said donation had left her practically destitute of any inheritance, Tupas' widow brought suit
against Tupas Foundation, Inc. in the same Court of First Instance of Negros Occidental (docketed as Civil
Case No. 16089) to have the donation declared inofficious insofar as it prejudiced her legitime, therefore
reducible " ... by one-half or such proportion as ... (might be deemed) justified ... and " ... the resulting
deduction ... " restored and conveyed or delivered to her. The complaint also prayed for attorney's fees and
such other relief as might be proper.

The Trial Court did not see things her way. Upon the facts above stated, on which the parties
stipulated, 1 said Court dismissed the complaint for lack of merit, rejecting her claim on several
grounds, viz.:

... (1) Article 900 relied upon by plaintiff is not applicable because the properties which were
disposed of by way of donation one year before the death of Epifanio Tupas were no longer
part of his hereditary estate at the time of his death on August 20, 1978; (2) the donation
properties were Epifanio's capital or separate estate; and (3) Tupas Foundation, Inc. being a
stranger and not a compulsory heir, the donation inter vivos made in its favor was not
subject to collation under Art. 106 1, C.C. 2

The Trial Court is in error on all counts and must be reversed.

A person's prerogative to make donations is subject to certain limitations, one of which is that he cannot
give by donation more than he can give by will (Art. 752, Civil Code). 3 If he does, so much of what is
donated as exceeds what he can give by will is deemed inofficious and the donation is reducible to the
extent of such excess, though without prejudice to its taking effect in the donor's lifetime or the donee's
appropriating the fruits of the thing donated (Art. 771, Civil Code). Such a donation is, moreover,
collationable that is, its value is imputable into the hereditary estate of the donor at the tune of his death
for the purpose of determining the legitime of the forced or compulsory heirs and the freely disposable
portion of the estate. This is true as well of donations to strangers as of gifts to compulsory heirs, although
the language of Article 1061 of the Civil Code would seem to limit collation to the latter class of donations.
And this has been held to be a long-established rule in Liguez vs. Honorable Court of Appeals, et
al., 4 where this Court said:

... Hence, the forced heirs are entitled to have the donation set aside in so far
as inofficious: i.e., in excess of the portion of free disposal (Civil Code of 1889, Articles 636,
645), computed as provided in Articles 818 and 819, and bearing in mind that collationable
gifts' under Article 818 should include gifts made not only in favor of the forced heirs, but
even those made in favor of strangers, as decided by the Supreme Court of Spain in its
decision of 4 May 1899 and 16 June 1902. So that in computing the legitimes, the value of
the property donated to herein appellant, Conchita Liguez, should be considered part of the
donor's estate. Once again, only the court of origin has the requisite data to determine
whether the donation is inofficious or not. 5

The fact, therefore, that the donated property no longer actually formed part of the estate of the donor at
the time of his death cannot be asserted to prevent its being brought to collation. Indeed, it is an obvious
proposition that collation contemplates and particularly applies to gifts inter vivos. 6 The further fact that
the lots donated were admittedly capital or separate property of the donor is of no moment, because a
claim of inofficiousness does not assert that the donor gave what was not his, but that he gave more than
what was within his power to give.

Since it is clear that the questioned donation is collationable and that, having been made to a stranger (to
the donor) it is, by law 7 chargeable to the freely disposable portion of the donor's estate, to be reduced
insofar as inofficious, i.e., it exceeds said portion and thus impairs the legitime of the compulsory heirs, in
order to find out whether it is inofficious or not, recourse must be had to the rules established by the Civil
Code for the determination of the legitime and, by extension, of the disposable portion. These rules are set
forth in Articles 908, 909 and 910 of the Code, on the basis of which the following step-by-step procedure
has been correctly outlined:

(1) determination of the value of the property which remains at the time of the testator's
death;

(2) determination of the obligations, debts, and charges which have to be paid out or
deducted from the value of the property thus left;
 (3) the determination of the difference between the assets and the liabilities, giving rise to
the hereditary estate;

(4) the addition to the net value thus found, of the value, at the time they were made, of
donations subject to collation; and

(5) the determination of the amount of the legitimes by getting from the total thus found the
portion that the law provides as the legitime of each respective compulsory heir. 8

Deducting the legitimes from the net value of the hereditary estate leaves the freely disposable portion by
which the donation in question here must be measured. If the value of the donation at the time it was
made does not exceed that difference, then it must be allowed to stand. But if it does, the donation is
inofficious as to the excess and must be reduced by the amount of said excess. In this case, if any excess
be shown, it shall be returned or reverted to the petitioner-appellant as the sole compulsory heir of the
deceased Epifanio R. Tupas.