Case Digest - Civil Law


G.R. 144 SCRA 35

SEPTEMBER 12, 1986



Old Tumpao begot 3 children (respondents) with his first wife. Upon her death, he took himself a second wife but without issues. However she had adopted 2 children according to the practice of Igorots. On September 4, 1937, Old Tumpao executed what he called “last will and testament which were read to and thumb mark affixed by all of the beneficiaries who at the time were already occupying the portions respectively allotted to them. After the death of Old Tumpao, the parties remained to be in possession of the lots assign to them which was in accordance of the wishes of old Tumpao which was also agreed upon by the parties in a public document.

On November 4, 1960, respondents executed an extra-judicial partition in which they divided the property of Old Tumpao among the three of them only. Petitioners sued for reconveyance , sustained by trial court but reversed by CA.


Whether or not the “ will and testament” of Old Tumpao be duly allowed even without being proved in the court


In accordance with the rules of court, no will shall pass either real or personal property unless it is proved or allowed in court.

However the document maybe sustained by art 1056 of the Old Civil Code which was the law in force at the time the document was made. The law says: “If the testator should make a partition of his properties by an act inter vivors, or by will such partition shall stand in so far as it does not prejudice the legitime of the forced heirs.”

Such partition is not governed by the rules of wills or donation inter vivos, which is a consequence of its special nature. Thus, the last will and testament of Old Tumpao is sustained by the provision of Art 1056, Old Civil Code, which became a binding law when the beneficiaries, parties herein, agreed and confirmed with the disposition made by Old Tumpao.

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