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TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositor-appellee. G.R. No.

L-12190, August 30, 1958 FACTS: On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila. On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased. Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. The will was not presented. Petitioners tried to establish its contents and due execution by the statements in open court of some witnesses who allegedly seen and read the said holographic will. After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence, this appeal. ISSUE: WON a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator HELD: NO. The court ruled that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The loss of the holographic will entails the loss of the only medium of proof. Even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11. The courts will not distribute the property of the deceased in accordance with his holographic will unless they have shown his handwriting and signature. The execution and the contents of a lost and destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. 45 Acain v. IAC GR No. 72706, October 27, 1987 Facts: In 1960, Nemesio Acain wrote a will giving all his properties to his brother Segundo, or, in case Segundo predeceases Nemesio, to Segundos children. Segundo died before Nemesio. Petitioner Constantino is one of Segundos children. In 1984, after the death of Nemesio, Constantino petitioned the court to have the will probated. This was opposed by Rosa Diongson, Nemesios wife, and Virginia Fernandez, a legally adopted child of Nemesio and Rosa. The opposition was denied by the trial court, hence Diongson and Fernandez went to the SC, which transferred the case to the CA. The CA ordered the trial court to dismiss the probate petition since Diongson and Fernandez were preterited. Constantino went to the SC on certiorari, contending that the CA could not rule on the intrinsic validity of the will before it is admitted for probate. Diongson and Fernandez opposed, contending that certiorari is not a proper remedy. Issues: 1. Whether or not certiorari is a proper remedy. 2. Whether or not probate courts (the CA in this case) could rule on the intrinsic validity of a will before the will is probated. 3. Whether or not Diongson was preterited. 4. Whether or not Fernandez was preterited. Rulings: 1. Yes, certiorari is a proper remedy. The existence of the remedy of appeal does not preclude certiorari, if appeal would not afford speedy and adequate relief.

2. Yes. The CA should be allowed to rule on the intrinsic validity of a will before the will was probated. If the probate of the will is allowed when on its face the will appears to be intrinsically void would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The general rule is that the courts authority is limited only to the extrinsic validity of the will, the due execution thereof, the testators testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally come only after the court has declared that the will has been duly authenticated. Such court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will. The rule however is not inflexible and absolute. Under exceptional circumstances, the court is not prowerless to do what the situation contrains it to do and pass upon certain provisions of the will. The trial court could have denied outright the probate of the will or have passed upon its intrinsic validity where on its face it appears to be intrinsically void, as in this case. 3. No. Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. 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. 4. Yes. Her legal adoption by the Nemesio has not been questioned by Constantino. Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child. ALABAN V. CA Facts: Francisco Provido filed a petition for the probate of the last will and testament of Soledad Provido Elevenciado. He alleged that he was the heir of the decedent and the executor of her will. The RTC allowed the probate of the will and directed the issuance of letters testamentary to respondent. Four months later, petitioners filed a motion for the reopening of the probate proceedings and opposition to the allowance of the will of the decedent and issuance of letters testamentary to respondent claiming that they are the intestate heirs of the decedent. Petitioners maintain that they were not made parties to the case in which the decision sought to be annulled was rendered and that respondents failed to notify them of the probate of the will which constitutes extrinsic fraud that necessitates the annulment of judgment. The RTC denied the motion. Petitioners filed a petition with TRO. The CA dismissed the petition. Hence, this petition. Issue: Whether or not the respondents failure to notify the petitioners of the probate of the will constitute extrinsic fraud that necessitates the annulment of the RTCs judgment. Held: The Supreme Court held in the negative. Petitioners are mistaken in asserting that they are not or have not become parties to the probate proceedings. Under the Rules of Court, any executor, devisee, or legatee named in a will or any other person interested in the estate may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed. Notice of the time and place for proving the will must be published for three consecutive weeks, in a newspaper of general circulation in the province, as well as furnished to the designated or other known heirs, legatees, and devisees of the testator. Thus, it has been held that a proceeding for the probate of a will is one in rem, such that with the corresponding publication of the petition the courts jurisdiction extends to all persons interested in said will or in the settlement of the estate of the decedent. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear

and decide it. Thus, even though petitioners were not mentioned in the petition for probate, they eventually became parties thereto as a consequence of the publication of the notice of hearing. As parties to the probate proceedings, petitioners could have validly availed of the remedies of motion for new trial or reconsideration and petition for relief from judgment. In fact, petitioners filed a motion to reopen, which is essentially a motion for new trial, with petitioners praying for the reopening of the case and the setting of further proceedings. However, the motion was denied for having been filed out of time, long after the Decision became final and executory. The non-inclusion of petitioners names in the petition and the alleged failure to personally notify them of the proceedings do not constitute extrinsic fraud. Petitioners were not denied their day in court, as they were not prevented from participating in the proceedings and presenting their case before the probate court. EMERITA SANTOS V. MODESTO CASTILLO Jurisdiction over probate of a will Facts: Petition had been filed by the petitioner Emerita Santos, in her behalf and as guardian of the minor acknowledge natural children of the deceased Nicolas Azores, for the purpose of applying for the probate of the will. Two days after the petition in question had been docketed, the petitioner filed a motion for the appointment of a special administrator and commissioners on appraisal, of the properties of the deceased Nicolas Azores. The respondents Jose, Sinforosa and Antonio Azores, legitimate children of said deceased, opposed the court's taking action thereon on the ground that it had not acquired jurisdiction over the case, the allegations made in the petition being insufficient to confer jurisdiction upon said court, because the petitioner did not allege that she had the custody of the will and, therefore, was not entitled to present it for probate; and furtherance because the will that should be probate is the original and not a copy thereof, as the one presented by the petitioner. In said amended petition, the petitioner prayed that Jose Azores and Manuel Azores Concordia be required to present immediately, in said case No.3101, the copies of the will in their possession as well as any alleged codicil claimed by them to have been made by the testator. The Trial Court denied the petition for the appointment of and Jose Azores under whose custody the last will and testament and all other document having relation thereto are opposed to be, is hereby ordered to deliver said papers to the court within ten (10) days from notice hereof. Petitioner filed a motion praying that her amended petition be admitted, that a special administrator and commissioners on appraisal be appointed and that Jose Azores and Manuel Azores Concordia be required to present in said case the copies of the will and the codicil that they had in their possession.16 days after their father's death, presented the original of the will and codicil made by the deceased Nicolas Azores, with a petition docketed as case No. 3140, praying for the probate of said will and codicil. It was opposed by the respondents Azores on the ground that as the jurisdiction of the court to pass upon the original petition for probate filed by the petitioner is questioned, the amendment thereto could not legally be considered until the previous question is decided by the court. The respondents prayed that said original petition of the petitioner be dismissed on the ground that as the originals of the will and codicil of the deceased Azores had been presented together with a petition for the probate thereof, the petitioner's defective petition was unfounded. Judge Modesto Castillo issued order in question, dismissing the petition filed by the petitioner which gave rise to the proceeding docketed as case No.3101 of the Court of First Instance of Laguna. The day following the issuance of said order, the petition excepted thereto and filed a motion for reconsideration which was denied by the court. Issue: W/N the judge exceeded his jurisdiction and acted arbitrarily and irregularly in dismissing the petition for probate filed by her in case No. 3110 as well as in ordering the publication of the notice of the hearing of the probate of the will in case No. 3104 instituted by the Azores brothers and sister before the order of January 26, 1937, issued in said No. 3101 became final. Held: Section 625 of the Code of Civil Procedure provides that no will pass either the real or personal state, unless it is proved and allowed. For this purpose, section 626 provides that the person who was the custody of a will shall, within thirty days after he knows of the death of the testator, deliver the will into the court which has jurisdiction, or to the executor named in the will, and sections 628 and 629 prescribed coercion means to compel a person havingthe custody of a will to deliver it to the court having jurisdiction. The petitioner alleges that the deceased Azores designated nobody as custodian of his will but that he directed his nephew Manuel Azores

Concordia todeliver a copy thereof to the petitioner, to preserve the other copy in his (Manuel Azores Concordia's) possession, and to turnover the two copies to hisson Jose Azores, with instructions to the effect that if the petitioners or his son Jose Azores failed to present said will for probate, he (Manuel AzoresConcordia) should take charge of presenting it to the court for said purpose. One of the two copies of the will turned over to Jose Azores must be theoriginal because the respondents had the original of the will as well as the codicil. Taking this into account, we may conclude that it was Jose Azores,the son of the deceased, who had the custody of the will because the original thereof was turned over to him. If in addition of the foregoing it isconsidered that the respondents Azores also had the original of the codicil, it necessarily follows that, by provision of the testator, it was saidrespondents who had the custody of his will and of his codicil.Therefore, as the legitimate children of the deceased had custody of the originals of the will and of the codicil, they alone could, have had the right andwere bound by law to apply for the probate of their father's last will. Consequently, the respondent judge, in dismissing the application prosecutedarbitrarily of irregularly, but reasonably made use of his bound discretion.The petitioner contends that instead of dismissing her application, the respondents judge should have compelled the respondents Azores to present thecopy of the will and the alleged codicil in case No. 3101. The court could not prudently to do so: first, because in said case the (1) petitioner applied for the probate of the will and nothing more: and (2) because the petitioner has clearly stated that even if she had the codicil n her possession, she wouldnot have presented it to the court because said codicil was allegedly "marked", not signed, by the testator about 15D before his death, that is, on a datewhen, according to the medial opinion he was physically and mentally incapacitated to govern his properties, thereby making it clearly understood thatshe would oppose the probate of the codicil in question. If such is the petitioner' s attitude and intention, were the codicil attached to case No. 3101,therewould be the anomaly of her being applicant and at the same time oppositor therein. With respect to the court's jurisdiction, this court finds that it is a fact impliedly admitted by the petitioner, from the time she presented an amended petition for the probate of curing the deficiencies of her application, that the allegations of said application were insufficient to confer jurisdiction upon thecourt. As said amendment had not been admitted by the court, the lack of jurisdiction continued to be manifest upon the face of the proceedings.Wherefore, this court holds in conclusion that in order that the court may acquire jurisdiction over the case for the probate of a will and for theadministration of the properties left by a deceased person, the application must allege, in addition to the residence of the deceased and other indispensable facts or circumstances, that the applicant is the executor in the will or is the person who had custody of the will to be probated. Theoriginal of said document must be presented or sufficient reasons given to justify the non-representation of said original and the acceptance of the copy or duplicate thereof. Inasmuch as these requisites had not been complied within the application filed by the petitioner, the respondent judge did not exceeded his jurisdiction in dismissing the application in question. Gen Endaluz (3A)December 6, 2010 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant,vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. Luciano A. Joson for petitioner-appellant. Cesar Paralejo for oppositor-appellee G.R. No. L-58509 December 7, 1982 FACTS: On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla. The Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the

will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence. Appellees moved to forward the case to this court on the ground that the appeal does not involve question of fact and alleged that the trial court erred in holding that a lost holographic will may not be proved by a copy thereof. ISSUE: Whether or not a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. RULING: YES. As a rule, if the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. Cabang vs Delfinado 34 PHIL 291 (1916) NATURE: This is an appeal from a judgment of the Court of First Instance of the Province of Pangasinan, probating a document purporting to be the last will and testament of the deceased Celestino Delfinado. FACTS: Martin Delfinado, son of Celestino Delfinado to his first marriage filed an opposition to the allowance of the will, alleging that the will was not signed by the deceased, nor by any other person, in his presence and by his express direction, and that the attestation does not comply with law. The case proceeded to trial, the petitioner presenting as witnesses the widow Dorotea Cabang, Antonio Flor Mata, and Paciano Romero, the latter being one of the subscribing witnesses. The opposition called only one witness, Martin Delfinado. The petitioner presented a motion asking that the case be reopened for the purpose of receiving the testimony of the other

two subscribing witnesses, who were then living in Manila and Nueva Ecija. No reason whatever appears in the record why these witnesses were not present and no question was raised either in the court below or in this court with reference to the consideration by the trial court to the testimony taken upon the first hearing. So it must be presumed that the petitioner did not desire to present these two witnesses and that she had no objection to the consideration of the testimony already taken. ISSUE: Whether or not the court erred in admitting the will to probate without having two of the subscribing witnesses called, although they were living within the jurisdiction of the court, or for not requiring any showing why they were not produced. RULING: YES. The rule that no will shall be valid to pass any estate, real or personal, unless "attested and subscribed by three or more credible witnesses," is a matter of substantive law and an element of the will's validity. The rule that the attesting witnesses must be called to prove a will for probate is one of preference made so by statute. In proving the contested will at Tayug only one attestor was presented, although the record showed that the other two were living, one in Manila and the other in Nueva Ecija. It was an error to admit the will to probate without calling all the attesting witnesses or requiring a showing that they could not be obtained. This rule of evidence is not to be confused with rules of quantity. There have been several reasons given for this rule of preference for the attesting witnesses, one reason being that the party opposing the claim of proper execution of the will has a right to the benefit of cross-examining the attesting witnesses as to fraud, duress, or other matters of defense. The law places these witnesses "around the testator to ascertain and judge of his capacity" for the purpose of preventing frauds. The soundness of the rule is well illustrated in the case under consideration. Here the attesting clause was omitted and the testator signed by mark. The due execution of the will is still doubtful and concludes that the proponent did not comply with the provisions of the law in the presentation of her case. NOTE: the general rule is that, where opposition is made to the probate of a will, the attesting witnesses must be produced. But there are exceptions to this rule, for instance, 1when a witness is dead, or 2cannot be served with process of the court, or 3his reputation for truth has been questioned or 4he appears hostile to the cause of the proponent. In such cases, the will may be admitted to probate without the testimony of said witness, if, upon the other proofs adduced in the case, the court is satisfied that the will has been duly executed. In the Matter of the Petition for the Summary Settlement of the Estate left by the deceased Carida Perez. BERNARDINO PEREZ, petitioner-appellee, vs. CONRADA PEREZ, ET AL., oppositors-appellants. G.R. No. L-12359 FACTS: Oppositors-appellants insist the lower court did not acquire jurisdiction to receive the evidence for the allowance of the alleged will because two heirs (Melanio Perez, Jr. and Milagros Perez) had not been notified in advance of such will. In reply to this, the petitioner-appellee says the persons mentioned were not entitled to notice, since they were not forced heirs grandnephew and niece and had not been mentioned as

legatees or devisees in the will of the deceased (Manahan vs. Manahan, 58 Phil. 448). And as to Milagros Perez, petitioner asserts that notice had been addressed to her last known residence in this country. ISSUE: Whether or not the lower court acquired jurisdiction over the Oppositors-appellants. HELD: YES. It appears that such no notice argument has no legal foundation. At any rate the omission, if any, did not affect the jurisdiction of the court: it constituted a mere procedural error that may or may not be the basis of reversal (Jocson vs. Nable, 48 O.G. 90). Indeed, this Tribunal has ruled that the court acquires jurisdiction over all persons interested in the estate through the publication of the petition in the newspapers (In re Estate of Johnson, 39 Phil. 159; Joson vs. Nable, supra) which in this case admittedly took place. Service of notice on individual heirs or legatees or devisees is a matter of procedural convenience, not jurisdictional requisite. (Joson vs. Nable, supra) So much so that even if the names of some legatees or heirs had been omitted from the petition for allowance of the will and therefore were not adviced the decree allowing the will does not ipso facto become void for want of jurisdiction. (Nicholson vs. Leathan, 153 Pacific Reports, 965; Moran, Rules of Court, 1957 Ed., Vol. II, p. 355; see also In re Estate of Johnson, supra, and Manalo vs. Paredes, 47 Phil. 938.) Needless, to add, in fine, the jurisdictional question directly appealable to this Court refers to jurisdiction over the subject matter, not mere jurisdiction over the persons, (Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676; Sy Oa vs. Co Ho, 74 Phil. 239.) Wherefore, this record will be referred to the Court of Appeals for disposition in accordance with law. CUENCO v CA GR L-24742 October 26, 1973 | TEEHANKEE, J.: FACTS: Senator Cuenco died and was survived by widow (petitioner) and 2 sons residing at Quezon City; and by his children of first marriage (respondents) residing in Cebu. Respondent filed Petition for Letters of Administration with CFI Cebu, which set it for hearing, but ordered that it was premature since there was yet publication of notice of hearing. Meanwhile, petitioner filed with CFI Quezon probate of deceaseds last will and for issuance of letters testamentary in her favor. Having learned of intestate proceeding in CFI Cebu, petitioner opposed petition of appointment of special administrator and filed Motion to Dismiss (MtD). CFI Cebu deferred to probate proceedings in CFI Quezon. Respondent did not oppose in CFI Cebu, but in CFI Quezon the probate; assailed jurisdiction of CFI Quezon due to lack of jurisdiction and/or improper venue. CFI Quezon denied MtD and MfR and admitted to probate the will. Respondents filed special civil action of certiorari and prohibition with preliminary injunction with respondent CA. CA favored respondents since CFI Cebu had jurisdiction first. Petitioners MfR was denied; hence, petition for review on certiorari. ISSUE: Whether or not CA erred in ordering the CFI Quezon to refrain perpetually from proceeding with the testate proceedings. HELD: YES. the Court upheld the doctrine of precedence of probate proceedings over intestate proceedings in this wise:

It can not be denied that a special proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance with the law on intestate succession or in accordance with his will, is a "probate matter" or a proceeding for the settlement of his estate.

It is equally true, however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings pending before a court of first instance it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that state an administrator had already been appointed, the
latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This however, is understood to be without prejudice that

should the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy. As already adverted to, this is a clear indication that proceedings for the probate of a will enjoy priority over intestate proceedings.
ALDANESE VS SALUTILLO FACTS:

Salome Avila, a widow, a resident of Sibonga, Cebu died on May 24, 1924 in the Municipality of San Juan del Monte, Rizal Province. The will is dated May 3, 1924, appears to be executed in due form and is witnessed by R.M. de Moreta, Jose U. Borromeo and Estanislao Rafols, all residents of the City of Manila. The deceased left no ascendants or descendants and under the dispositions of the will the greater part of the estate will go to the petitioner Vicente Aldanese and his sister Enriqueta. The petition for the probate of the will was presented to the Court of First Instance of Cebu and was by order of the court set down for hearing. After due publication of the order Canuto, Teodora, Feliciano and Raymundo Salutillo and Valeria Llanos appeared as opponents and asked that the hearing of the case be continued until July 14, 1924. The petitioner presented a motion asking the court to authorize the taking of the depositions of the witnesses to the will on the ground that being residents of the City of Manila said witnesses were unable to appear personally before the Court of First Instance of Cebu. Judge Recto granted the motion and continued the hearing. Upon the petitioner presented his motion for authorization to take the depositions, the opponents filed the amended opposition that the said will be disallowed. The opponents presented a motion asking that the order authorizing the taking of the depositions be revoked and it was granted on the ground that it had not been sufficiently shown that it was impossible for the witnesses to appear personally before the court and that therefore their depositions would be inadmissible in evidence. By agreement between the parties the hearing of the petition for probate of the will was further continued. The attorney for the petitioner notified the attorneys for the opponents that the depositions of the witnesses would be taken before the notary public. This notification was received by the attorneys. The depositions of all three witnesses were taken at the time and place stated in the notification and the opponents failed to appear. The petition for probate was finally heard and the depositions were duly presented but were ruled out by the court there being no other sufficient evidence of the execution of the will, the petition was denied.

ISSUE: Whether or not the depositions in question were inadmissible as evidence in the probate proceedings. RULING: When a will is contested the attesting witnesses must be called to prove the will or a showing must be made that they cannot be had, but that does not necessarily mean that they must be brought bodily before the court. It is their testimony which is needed and not their actual personal presence in the court room. In the present case, the will was presented for probate in Cebu; the attesting witnesses were living in Manila and were beyond the process of the court for compulsory attendance. They were called to testify and produced before an officer legally authorized to take their testimony in the form of depositions. The notice required by section 361 was duly given and the opponents given the opportunity to be present and to cross-examine the witnesses. In the circumstances, this must certainly be considered a sufficient "calling" of the witnesses and satisfies the law. The depositions in question appear to be in due form and would ordinarily be admissible.

NOTE:

When depositions of subscribing witnesses to a will are taken, a photographic copy of the will may be presented to the witnesses on their examination and that they may be asked the same original will. It follows that if the depositions are admitted the testimony as to the identity of the photographic copy shown to the witnesses is also admissible. DE ARANZ vs. GALING (161 scra 628) (1988) FACTS: Joaqin Infante (RESPONDENT) filed a petition at the RTC of Pasig for the probate of the will of Monseratt Infante Y Pola. His petition named several individuals (PETITIONERS) with the surname Infante-Roxasas legatees and devisees. Thereafter, the probate court issued an order for the requisite hearing and the judge complied with the mandatory three week publication of the order. Come hearing date, no oppositor appeared and so the judge reset the hearing date. No oppositor made manifestation on the later date, compelling the judge to request for the submission of evidence ex-parte. Joaquin Infante immediately presented evidence thatsame fateful day. He called a lone witness to the stand. Two days passed and the ten Petitioners made an appearance contesting the probate on the ground that no notice was ever sent to them. They requested ten days to file an opposition. Petitioners assert that failure to notify the legatees/devisees deprives the court of jurisdiction. Joaqin Infante opposed the opposition and garnered the affirmation of both the RTC and the CA. The petition to deny probate was therefore denied. ISSUE: HELD: Whether the publication of notice satisfies the personal notification required.

Sec. 4, Rule 76 of the Rules of Cof reads:

SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. The court shag also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not, the petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing.
It is clear from the aforecited rule that notice of the time and place of the hearing for the allowance of a will shall be forwarded to the designated or other known heirs, legatees, and devisees residing in the Philippines at their places of residence, if such places of residence be known. There is no question that the residences of herein petitioners legatees and devisees were known to the probate court. The petition for the allowance of the wig itself indicated the names and addresses of the legatees and devisees of the testator. But despite such knowledge, the probate court did not cause copies of the notice to be sent to petitioners. The requirement of the law for the allowance of the will was not satisfied by mere publication of the notice of hearing for three (3) weeks in a newspaper of general circulation in the province. CASIANO vs. MALOTO (1977) FACTS:

Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto, and Felino Maloto, niece and nephews, respectively, of Adriana Maloto, in the belief that decedent died intestate, commenced intestate proceeding docketed as Special Proceeding No. 1736. They all executed an extrajudicial Partition of the estate whereby they adjudicated said estate unto themselves in the proportion of one-fourth (1/4) share for each. Subsequently, a document purporting to be the last with and testament of the deceased was delivered to the Clerk of Art of the Art of First Instant of Iloilo. It appears that Aldina Maloto Casiano Consent Maloto, Panfilo Maloto, and Felino Maloto are named as heirs but Maloto Casiano and Constancio Maloto allegedly have shares in said with which are bigger, different and more valuable than what they obtained in the extrajudicial partition. Aldina Maloto Casiano and Constancio Maloto filed allowance of the will. CFI of Iloilo denied the motion to reopen the proceeding. The petitioners filed a petition for certiorari and mandamus with the SC which dismissed the petition on the ground that remedy of petitioners is to initiate a separate proceeding for the probate of the alleged will in question. Thereupon, the petitioners commenced Special Proceeding No. 2176 in CFI of Iloilo. In an order dated April 13, 1970, the probate court dismissed the petition for the probate of the with on the basis of the finding of said court in Special Proceeding No. 1736 that the alleged win sought to be Probated had been destroyed and revoked by the testatrix. ISSUE: Whether the order of the court is proper. RULING: The probate court had no jurisdiction to entertain the petition for the probate of the alleged with of Adriana Maloto in Special Proceeding No. 1736. Indeed, the motion to reopen the was

denied because the same was filed out of time. Moreover, it is not proper to make a finding in an intestate estate proceeding that the discovered will has been revoked. Special Proceeding No. 1736 is not a bar to the present petition for the probate of the alleged will of Adriana Maloto. Gago v. Mamuyac, 49 Phil 902 (1927) Father Miguel Mamuyac (+Jan. 2, 1922) Francisco Gago (petitioner-appellant) Cornelio Mamuyac et. Al (opponents-appellees) Facts: In 1922, Francisco Gago filed a petition for probate of LTW of Father Miguel Mamuyac. The relatives of Father Miguel opposed the petition. Judge denied the petition on the ground that deceased had executed new will and testament. In 1925, Gago again filed a petition for probate of second will. Mamuyac et. Al, again opposed that said will was just a copy of the second will, and such was revoked by Miguel during his lifetime. Opponents established the fact that in 1920, Miguel executed another will. However, the witness said that such will can no longer be found. Lower Court denied probation of the will. On appeal, Gago argued that the lower court committed error In not finding from the evidence that the will in question had been executed with all formalities required by law. Issue: What is the proof required on probate hearing? Held: In a proceeding to probate a will, the burden of proof is upon the proponent clearly to establish not only its execution but the existence of the will. Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. The original will must be presented in court. Exemption: duplicate may be admitted in evidence when it is proven, by proper testimony that a will has been executed in duplicate and, it is made to appear that the original had been lost and was not cancelled or destroyed by the testator (Borromeo vs. Casquijo). The law does not require any evidence of the revocation or cancellation of the will to be preserved. The will is inferred/presumed to be cancelled where : a.) the will which cannot be found is shown to have been in the possession of the testator b.) it is shown that the testator has ready access to the will and it cannot be found after his death It will not be presumed that the will has been destroyed by any other person without the knowledge or authority of testator. The presumption of cancellation or revocation is not conclusive but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it.

SC affirmed lower courts decision. Maninang v. CA, 114 SCRA 478 (1982) Clemencia Aseneta testatrix, single (+May 1977) Dra. Soledad Maninang instituted heir Bernardo Aseneta nephew/adopted son Clementia left a holographic will instituting Soledad Maninang as sole heir. Soledad filed a petition for Probate of Will (QC) while Bernardo instituted intestate proceedings (Pasig). The Testate and Intestate proceedings are then consolidated. Bernardo filed motion to dismiss on the ground of preterition. Soledad opposed on contention that courts area of inquiry is limited to examination and resolution of extrinsic validity of will, and that Bernardo was validly disinherited by the decedent. RTC and CA ruled in favor of Bernardo. Issue : What is the scope of Inquiry of Probate Proceedings? Held: General Rule: PROBATE OF A WILL DOES NOT LOOK INTO ITS INTRINSIC VALIDITY. The authentication of will decides no other questions than testamentary capacity and compliance with requisites and solemnities on due execution. Opposition to intrinsic validity or legality of the provisions of the will cannot be entertained in probate proceedings because its only purpose is to determine is the will has been executed in accordance with the requirements of the law. Exceptions: 1. Where PRACTICAL CONSIDERATIONS demand that the intrinsic validity of will be passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid). 2. If on its face, the will appears to be intrinsically void (Balanay v. Hon. Martinez). 3. If the intrinsic validity of the will is the meat of the controversy. (Example, in the instant case, a crucial issue that needs resolution is whether under the terms of the decedents will, Bernardo had been preterited or disinherited.)