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G.R. No. L-15153 August 31, 1960

In the Matter of the summary settlement of the Estate of the deceasedANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,vs.EUSEBIA ABELLANA, et al., oppositors-appellants.

T. de los Santos for appellee.Climaco and Climaco for appellants.

LABARADOR, J.:

Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the willof one Anacleta Abellana. The case was originally appealed to the Court of Appeals where thefollowing assignment of error is made:

The appellants respectfully submit that the Trial Court erred in holding that the supposedtestament, Exh. "A", was signed in accordance with law; and in admitting the will to probate.

In view of the fact that the appeal involves a question of law the said court has certified the case tous.

The facts as found by the trial court are as follows:

It appears on record that the last Will and Testament (Exhibit "A"), which is sought to beprobated, is written in the Spanish language and consists of two (2) typewritten pages(pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and underhis name appears typewritten "Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears thesignature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael

Ignacio, at the bottom of which appears the signature of T. de los Santos and below hissignature is his official designation as the notary public who notarized the said testament. Onthe first page on the left margin of the said instrument also appear the signatures of theinstrumental witnesses. On the second page, which is the last page of said last Will andTestament, also appears the signature of the three (3) instrumental witnesses and on thatsecond page on the left margin appears the signature of Juan Bello under whose nameappears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The will isduly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasissupplied)

The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello abovethe typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," complywith the requirements of law prescribing the manner in which a will shall be executed?

The present law, Article 805 of the Civil Code, in part provides as follows:

Every will, other than a holographic will, must be subscribedat the end thereof by thetestator himself orby the testator's name written by some other person in his presence, andby his express direction, and attested and subscribed by three or more credible witness inthe presence of the testator and of one another. (Emphasis supplied.)

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The clause "must be subscribed at the end thereof by the testator himself or by the testator's namewritten by some other person in his presence and by his express direction," is practically the sameas the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows:

No will, except as provided in the preceding section shall be valid to pass any estate, real orpersonal, nor charge or affect the same, unless it be in writing and signed by the testator, or

by the testator's name written by some other person in his presence, and by his expressdirection, and attested and subscribed by three or more credible witnesses in the presenceof the testator and of each other. . . . (Emphasis supplied).

Note that the old law as well as the new require that the testator himself sign the will, or if he cannotdo so, the testator's name must be written by some other person in his presence and by his expressdirection. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil.,700:

It will be noticed from the above-quoted section 618 of the Code of Civil Procedure thatwhere the testator does not know how, or is unable, to sign, it will not be sufficient that one ofthe attesting witnesses signs the will at the testator's request, the notary certifying thereto as

provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618above referred to, but it is necessary that the testator's name be written by the personsigning in his stead in the place where he could have signed if he knew how or was able todo so, and this in the testator's presence and by his express direction; so that a will signed ina manner different than that prescribed by law shall not be valid and will not be allowed to beprobated.

Where a testator does not know how, or is unable for any reason, to sign the will himself, itshall be signed in the following manner:

John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe, RichardDoe." All this must be written by the witness signing at the request of the testator.

Therefore, under the law now in force, the witness Naval A. Vidal should have written at thebottom of the will the full name of the testator and his own name in one forms given above.He did not do so, however, and this is failure to comply with the law is a substantial defectwhich affects the validity of the will and precludes its allowance, notwithstanding the fact thatno one appeared to oppose it.

The same ruling was laid down in the case ofCuison vs. Concepcion, 5 Phil., 552. In the caseofBarut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears thatthe name of the testatrix was signed at her express direction; it is unimportant whether the personwho writes the name of the testatrix signs his own or not. Cases of the same import areas follows:(Ex ParteJuan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90Phil., 489).

In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the willby said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with theexpress requirement in the law that the testator must himself sign the will, or that his name be affixedthereto by some other person in his presence and by his express direction.

It appearing that the above provision of the law has not been complied with, we are constrained todeclare that the said will of the deceased Anacleta Abellana may not be admitted to probate.

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WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of thewill denied. With costs against petitioner.

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

vs.HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R.SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petitionin Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72)denying respondents' (petitioners herein) motion for reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court ofthe Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismissthe petition in Special Proceedings No. 591 ACEB No special pronouncement ismade as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Courtof Appeals, (Rollo, pp. 108-109) are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch

XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the samepetitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), onthe premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio,Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. Thewill allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27)with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by privaterespondents. The will contained provisions on burial rites, payment of debts, and the appointment ofa certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of thetestator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands andmoney which I earned jointly with my wife Rosa Diongson shall all be given by me tomy brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residingat 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses there in Bantayan and here inCebu City which constitute my share shall be given to me to his children, namely:

Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, allsurnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming tobe heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB

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After the petition was set for hearing in the lower court on June 25, 1984 the oppositors(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and thelatter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds forthe petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heirand (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion wasdenied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court, respondents filedwith the Supreme Court a petition for certiorari and prohibition with preliminary injunction which wassubsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trialcourt to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No.591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition for the reviewof respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was

filed on June 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum forpetitioner was filed on September 29, 1986 (Rollo, p. 177).

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition withpreliminary injunction is not the proper remedy under the premises;

(B) The authority of the probate courts is limited only to inquiring into the extrinsic

validity of the will sought to be probated and it cannot pass upon the intrinsic validitythereof before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate.The preterition mentioned in Article 854 of the New Civil Code refers to preterition of"compulsory heirs in the direct line," and does not apply to private respondents whoare not compulsory heirs in the direct line; their omission shall not annul theinstitution of heirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(E) There may be nothing in Article 854 of the New Civil Code, that suggests thatmere institution of a universal heir in the will would give the heir so instituted a sharein the inheritance but there is a definite distinct intention of the testator in the case atbar, explicitly expressed in his will. This is what matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file thepetition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is thereforeunconstitutional and ineffectual.

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The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs inthe direct line, whether living at the time of the execution of the will or born after the

death of the testator, shall annul the institution of heir; but the devisees and legaciesshall be valid insofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall heeffectual, without prejudice to the right of representation.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them eitherbecause they are not mentioned therein, or, though mentioned, they are neither instituted as heirsnor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of

Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Codemay not apply as she does not ascend or descend from the testator, although she is a compulsoryheir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even

if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however,the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoptionby the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9).Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to theadopted person the same rights and duties as if he were a legitimate child of the adopter and makesthe adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted andpreterited in the will of the testator and that both adopted child and the widow were deprived of atleast their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this isa clear case of preterition of the legally adopted child.

Pretention annuls the institution of an heir and annulment throws open to intestate succession theentire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora odonacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA[1982]). The only provisions which do not result in intestacy are the legacies and devises made inthe will for they should stand valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire inheritance ofthe testator results in totally abrogating the will because the nullification of such institution ofuniversal heirs-without any other testamentary disposition in the will-amounts to a declaration thatnothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers noleeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having beenprovided in the will the whole property of the deceased has been left by universal title to petitionerand his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, theopening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies anddevises must, as already stated above, be respected.

We now deal with another matter. In order that a person may be allowed to intervene in a probateproceeding he must have an interest iii the estate, or in the will, or in the property to be affected by iteither as executor or as a claimant of the estate and an interested party is one who would bebenefited by the estate such as an heir or one who has a claim against the estate like a creditor(Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither adevisee or a legatee there being no mention in the testamentary disposition of any gift of anindividual item of personal or real property he is called upon to receive (Article 782, Civil Code). Atthe outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil

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Code as a person called to the succession either by the provision of a will or by operation of law.However, intestacy having resulted from the preterition of respondent adopted child and theuniversal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standingto petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEBmust be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is anoppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. deCaldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308[1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies ofcertiorari and prohibition are not available where the petitioner has the remedy of appeal or someother plain, speedy and adequate remedy in the course of law (DD Comendador ConstructionCorporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a graveabuse of discretion of the trial court in not dismissing a case where the dismissal is founded on validgrounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).

Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, thegeneral rule is that the probate court's authority is limited only to the extrinsic validity of the will, thedue execution thereof, the testator's testamentary capacity and the compliance with the requisites orsolemnities prescribed by law. The intrinsic validity of the will normally comes only after the Courthas declared that the will has been duly authenticated. Said court at this stage of the proceedings isnot called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v.Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of

Appeals, 139 SCRA 206 [1985]).

The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate courtis not powerless to do what the situation constrains it to do and pass upon certain provisions of thewill (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probatemoved to dismiss on the ground of absolute preteriton The probate court acting on the motion heldthat the will in question was a complete nullity and dismissed the petition without costs. On appeal

the Supreme Court upheld the decision of the probate court, induced by practical considerations.The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothingwill be gained. On the contrary, this litigation will be protracted. And for aught thatappears in the record, in the event of probate or if the court rejects the will,probability exists that the case will come up once again before us on the same issueof the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plusadded anxiety. These are the practical considerations that induce us to a belief thatwe might as well meet head-on the issue of the validity of the provisions of the will inquestion. After all there exists a justiciable controversy crying for solution.

In Saguimsim v. Lindayag(6 SCRA 874 [1962]) the motion to dismiss the petition by the survivingspouse was grounded on petitioner's lack of legal capacity to institute the proceedings which wasfully substantiated by the evidence during the hearing held in connection with said motion. The Courtupheld the probate court's order of dismissal.

In Cayetano v. Leonides, supraone of the issues raised in the motion to dismiss the petition dealswith the validity of the provisions of the will. Respondent Judge allowed the probate of the will. TheCourt held that as on its face the will appeared to have preterited the petitioner the respondent judgeshould have denied its probate outright. Where circumstances demand that intrinsic validity of

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testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, theprobate court should meet the issue. (Nepomuceno v. Court of Appeals,supra; Nuguid v.Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No.591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal

capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and theadopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an orderdated January 21, 1985 for the reason that "the grounds for the motion to dismiss are mattersproperly to be resolved after a hearing on the issues in the course of the trial on the merits of thecase (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court onFebruary 15, 1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will and allowed the case to progresswhen on its face the will appears to be intrinsically void as petitioner and his brothers and sisterswere instituted as universal heirs coupled with the obvious fact that one of the private respondentshad been preterited would have been an exercise in futility. It would have meant a waste of time,effort, expense, plus added futility. The trial court could have denied its probate outright or couldhave passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity ofthe will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies ofcertiorari and prohibition were properly availed of by private respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had theright to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct agrave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in notdismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existenceof the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, apetition for certiorari may be entertained, particularly where appeal would not afford speedy andadequate relief. (Maninang Court of Appeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned

decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution datedOctober 23, 1985 are hereby AFFIRMED.

SO ORDERED.

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,vs.HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instanceof Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

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Petition to review on certiorarithe judgment of the Court First Instance of Cebu allowing the probateof the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, thesurviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the willwas executed through fraud, deceit, misrepresentation and undue influence; that the said instrumentwas execute without the testator having been fully informed of the content thereof, particularly as towhat properties he was disposing and that the supposed last will and testament was not executed in

accordance with law. Notwithstanding her objection, the Court allowed the probate of the said lastwill and testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges, is whetherthe supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordancewith law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least threecredible witnesses to attest and subscribe to the will, and the second requiring the testator and thewitnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. FranciscoPaares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the NotaryPublic before whom the will was supposed to have been acknowledged. Reduced to simpler terms,the question was attested and subscribed by at least three credible witnesses in the presence of thetestator and of each other, considering that the three attesting witnesses must appear before thenotary public to acknowledge the same. As the third witness is the notary public himself, petitionerargues that the result is that only two witnesses appeared before the notary public to acknowledgethe will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposedexecutor of the will, following the reasoning of the trial court, maintains that there is substantialcompliance with the legal requirement of having at least three attesting witnesses even if the notarypublic acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purelytechnical reason that one of the witnesses required by law signed as certifying to anacknowledgment of the testator's signature under oath rather than as attesting the

execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of theappellant that the last will and testament in question was not executed in accordance with law. Thenotary public before whom the will was acknowledged cannot be considered as the thirdinstrumental witness since he cannot acknowledge before himself his having signed the will. Toacknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding inspace or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk& Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New InternationalDictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he wouldhave to avow assent, or admit his having signed the will in front of himself. This cannot be donebecause he cannot split his personality into two so that one will appear before the other toacknowledge his participation in the making of the will. To permit such a situation to obtain would besanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoralarrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary publicwere one of the attesting instrumental witnesses. For them he would be interested sustaining thevalidity of the will as it directly involves him and the validity of his own act. It would place him in

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inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report ofCode Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as awitness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G.4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as

notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346;In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So.496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See alsoTrenwith v.Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this

jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referredto aforecited cases merely acted as instrumental, subscribing attesting witnesses, and notas acknowledgingwitnesses. He the notary public acted not only as attesting witness but alsoacknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testatorand the witnesses. The notary public shall not be required to retain a copy of the willor file another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses,would have the effect of having only two attesting witnesses to the will which would be incontravention of the provisions of Article 80 be requiring at least three credible witnesses to act assuch and of Article 806 which requires that the testator and the required number of witnesses mustappear before the notary public to acknowledge the will. The result would be, as has been said, thatonly two witnesses appeared before the notary public for or that purpose. In the circumstances, thelaw would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of thelast will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

G.R. No. L-14603 April 29, 1961

RICARDO LARCERNA, ET AL., plaintiffs-appellants,vs.AGATONA PAURILLO VDA. DE CORCINO, defendant-appellee.JACOBA MARBEBE, intervenor-appellee.

CONCEPCION, J.:

Appeal from a decision of the Court of First Instance of Iloilo declaring that the parcels of land inlitigation are property of intervenor Jacoba Marbebe.

This action was instituted by Ricardo, Patrocinia, Patria, Faustino, Leonor, Ramona, Asuncion,Emiliana, Arsenio and Felipe, all surnamed Lacerna, for the recovery of three parcels of unregisteredlands, situated in the municipality of Maasin, Iloilo, and more specifically described in the complaint,upon the ground that said lands belonged to the deceased Juan Marbebe, and that his cousins,plaintiffs herein, are his sole heirs.

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In her answer, defendant Agatona Vda. de Corcino alleged, inter alia, that Juan Marbebe might stillbe alive; that she held the disputed lands under a power of attorney executed by Juan Marbebe; andthat, if he has died, she is entitled to succeed him in the same manner as plaintiffs herein, she beingrelated to him in the same manner as plaintiffs are.

With the court's permission, Jacoba Marbebe filed an answer in intervention alleging that she is a

half sister of Juan Marbebe who died intestate, leaving neither ascendants nor descendants, andthat, as his half sister, she is entitled, by succession, to the properties in dispute.

After due trial, the court rendered judgment for the intervenor. Hence, this appeal by the plaintiffs.

The lower court found, and appellants do not question, that the lands described in the complaintbelonged originally to Bonifacia Lacerna. Upon her death in 1932, they passed, by succession, toher only son, Juan Marbebe who was, subsequently, taken to Culion where he died intestate, singleand without issue on February 21, 1943. The question for determination is: who shall succeed him?

It appears that his mother, Bonifacia Lacerna, had a sister, Agatona Paurillo Vda. de Corcino, thedefendant herein; that Catalino Lacerna died in 1950 and was survived by his children, plaintiffs

Ricardo, Patrocinia and Patria, all surnamed Lacerna; and that Marcelo Lacerna who died in 1953,was survived by his children, the other plaintiffs herein, namely, Ramona, Faustino, Leonor,

Asuncion Emiliano, Arsenio and Felipe, all surnamed Lacerna. Upon the other hand, intervenorJacoba Marbebe is daughter, by first marriage, of Valentin Marbebe, husband of Bonifacia Lacernaand father of Juan Marbebe, who, accordingly, is a half brother of said intervenor.

With this factual background, the issue is narrowed down to whether Jacoba Marbebe, as half sisterof Juan Marbebe, on his father's side, is his sole heir, as held by His Honor, the Trial Judge, orwhether plaintiffs herein, as first cousins of Juan Marbebe, on his mother side, have a better right tosucceed him, to the exclusion of Jacoba Marbebe, as plaintiffs-appellants maintain.

The latter's pretense is based upon the theory that, pursuant to Article 891 of the Civil Code of thePhilippines, establishing what is known as "reserva troncal", the properties in dispute should pass tothe heirs of the deceased within the third degree, who belong to the line from which saidpropertiescame, and that since the same were inherited by Juan Marbebe from his mother, theyshould go to his nearest relative within the third degree on the material line, to which plaintiffsbelong, not to intervenor, Jacoba Marbebe, despite the greater proximity of her relationship to thedeceased, for she belongs to the paternal line.

Jacoba Marbebe contends, however, and the lower court held, that brothers and sisters exclude allother collateral relatives in the order of intestate succession, and that, as Juan Marbebe's half-sister,she has, accordingly, a better right than plaintiffs herein to inherit his properties.

The main flaw in appellants' theory is that it assumes that said properties are subject to the "reservatroncal", which is not a fact, for Article 891 of the Civil Code of the Philippines, provides:

The ascendantwho inherits from his descendant any property which the latter may haveacquired by gratuitous title from another ascendant, or a brother or sister, is obliged toreserve such property as he may have acquired by operation of law for the benefit ofrelatives who are within the third degree and who belong to the line from which said propertycame. (Emphasis supplied.)

This article applies only to properties inherited, under the conditions therein set forth, by anascendant from a descendant, and this is not the case before us, for the lands in dispute were

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inherited by a descendant, Juan Marbebe, from an ascendant, his mother, Bonifacia Lacerna. Saidlegal provision is, therefore, not in point, and the transmission of the aforementioned lands, byinheritance, was properly determined by His Honor, the Trial Judge, in accordance with the orderprescribed for intestate succession, particularly Articles 1003 to 1009 of the Civil Code of thePhilippines, pursuant to which a sister, even if only a half-sister, in the absence of other sisters orbrothers, or of children of brothers or sisters, excludes all other collateral relatives, regardless of

whether or not the latter belong to the line from which the property of the deceased came.

WHEREFORE, the decision appealed from is hereby affirmed, with costs against plaintiffs-appellants. It is so ordered.