Art 816 - 830 Cases

G.R. No.
76714
June 2, 1994
SALUD TEODORO VDA. DE PEREZ, petitioner,

vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC,
Bulacan, respondent.
Natividad T. Perez for petitioner.
Benedicto T. Librojo for private respondents.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to
set aside the Order dated November 19, 1986 of the Regional Trial Court,
Branch 18, Bulacan presided by respondent Judge Zotico A. Tolete, in Special
Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became
American citizens, established a successful medical practice in New York, U.S.A.
The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse, New York,
with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament,
bequeathing to his wife "all the remainder" of his real and personal property at
the time of his death "wheresoever situated" (Rollo, p. 35). In the event he
would survive his wife, he bequeathed all his property to his children and
grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife
as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as
substitute executor. Article VIII of his will states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances
that there is not sufficient evidence to determine the order of our deaths, then
it shall be presumed that I predeceased her, and my estate shall be
administered and distributed, in all respects, in accordance with such
presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will
and testament containing the same provisions as that of the will of her
husband. Article VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that
there is not sufficient evidence to determine the order of our deaths, then it
shall be presumed that he predeceased me, and my estate shall be

administered and distributed in all respects, in accordance with such
presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when they
were trapped by fire that gutted their home. Thereafter, Dr. Rafael G. Cunanan,
Jr. as trustee and substitute executor of the two wills, filed separate
proceedings for the probate thereof with the Surrogate Court of the County of
Onondaga, New York. On April 7, these two wills were admitted to probate and
letters testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P.
Cunanan, and petitioner herein, filed with the Regional P. Cunanan, and
petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a petition
for the reprobate of the two bills ancillary to the probate proceedings in New
York. She also asked that she be appointed the special administratrix of the
estate of the deceased couple consisting primarily of a farm land in San Miguel,
Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by
Judge Gualberto J. de la Llana, issued an order, directing the issuance of letters
of special administration in favor of petitioner upon her filing of a P10,000.00
bond. The following day, petitioner posted the bond and took her oath as
special administration.
As her first act of administration, petitioner filed a motion, praying that the
Philippine Life Insurance Company be directed to deliver the proceeds in the
amount of P50,000.00 of the life insurance policy taken by Dr. Jose F. Cunanan
with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as beneficiaries. The
trial court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a
manifestation, stating that said company then filed a manifestation, stating
that said company had delivered to petitioner the amount of P49,765.85,
representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr.
be ordered to deliver to her a Philippine Trust Company passbook with
P25,594.00 in savings deposit, and the Family Savings Bank time deposit
certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the
heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan
Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan
Concepcion (Cunanan heirs). He also manifested that before receiving
petitioner's motion of May 19, 1983, his clients were unaware of the filing of
the testate estate case and therefore, "in the interest of simple fair play," they
should be notified of the proceedings (Records, p. 110). He prayed for
deferment of the hearing on the motions of May 19, 1983.
Succession - SJBPrior | 1
Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1)
that the "Cunanan collaterals are neither heirs nor creditors of the late Dr. Jose
F. Cunanan" and therefore, they had "no legal or proprietary interests to
protect" and "no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan
and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in
accordance with the solemnities and formalities of New York laws, and
produced "effects in this jurisdiction in accordance with Art. 16 in relation to
Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was
presumed that the husband predeceased the wife; and (4) that "the Cunanan
collaterals are neither distributees, legatees or beneficiaries, much less, heirs
as heirship is only by institution" under a will or by operation of the law of New
York (Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of May 19, 1983.
However, on July 21, the Cunanan heirs filed a motion to nullify the
proceedings and to set aside the appointment of, or to disqualify, petitioner as
special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn
Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters and
the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been
"deliberately excluded" in the petition for the probate of the separate wills of
the Cunanan spouses thereby misleading the Bulacan court to believe that
petitioner was the sole heir of the spouses; that such "misrepresentation"
deprived them of their right to "due process in violation of Section 4, Rule 76 of
the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of
the estate of the Cunanan spouses, was likewise not notified of the hearings in
the Bulacan court; (3) that the "misrepresentation and concealment committed
by" petitioner rendered her unfit to be a special administratrix; (4) that Dr.
Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney, authorized
his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael
Cunanan, Sr. is qualified to be a regular administrator "as practically all of the
subject estate in the Philippines belongs to their brother, Dr. Jose F. Cunanan"
(Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the
case be declared null and void; (2) that the appointment of petitioner as
special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be
appointed the regular administrator of the estate of the deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an
inventory or accounting of all monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only heir"
of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan
collaterals"; hence they were complete strangers to the proceedings and were
not entitled to notice; (2) that she could not have "concealed" the name and
address of Dr. Rafael G. Cunanan, Jr. because his name was prominently
mentioned not only in the two wills but also in the decrees of the American
surrogate court; (3) that the rule applicable to the case is Rule 77, not Rule 76,
because it involved the allowance of wills proved outside of the Philippines and
that nowhere in Section 2 of Rule 77 is there a mention of notice being given to

the executor who, by the same provision, should himself file the necessary
ancillary proceedings in this country; (4) that even if the Bulacan estate came
from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to
his wife and nothing to his brothers and sisters; and (5) that Dr. Rafael G.
Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs,
misappropriated $15,000.00 for himself and irregularly assigned assets of the
estates to his American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982,
petitioner and the Cunanan heirs had entered into an agreement in the United
States "to settle and divide equally the estates," and that under Section 2 of
Rule 77 the "court shall fix a time and place for the hearing and cause notice
thereof to be given as in case of an original will presented for allowance"
(Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court
for failure to comply with the Order of June 23, 1983 and for appropriating
money of the estate for his own benefit. She also alleged that she had
impugned the agreement of November 24, 1982 before the Surrogate Court of
Onondaga, New York which rendered a decision on April 13, 1983, finding that
"all assets are payable to Dr. Evelyn P. Cunanans executor to be then
distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from
claiming that they were heirs by the agreement to divide equally the estates.
They asserted that by virtue of Section 2 of Rule 77 of the Rules of Court, the
provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all
heirs, executors, devisees and legatees must be complied with. They reiterated
their prayer: (1) that the proceedings in the case be nullified; (2) that petitioner
be disqualified as special administratrix; (3) that she be ordered to submit an
inventory of all goods, chattels and monies which she had received and to
surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be
appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983
decision of the American court Dr. Rafael G. Cunanan, Jr. made "unauthorized
disbursements from the estates as early as July 7, 1982" (Records, p. 231).
Thereafter, petitioner moved for the suspension of the proceedings as she had
"to attend to the settlement proceedings" of the estate of the Cunanan
spouses in New York (Records, p. 242). The Cunanans heirs opposed this
motion and filed a manifestation, stating that petitioner had received
$215,000.00 "from the Surrogates Court as part of legacy" based on the
aforesaid agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the
reprobate of the two wills, recalling the appointment of petitioner as special
administratrix, requiring the submission of petitioner of an inventory of the
property received by her as special administratrix and declaring all pending
incidents moot and academic. Judge de la Llana reasoned out that petitioner
failed to prove the law of New York on procedure and allowance of wills and the
court had no way of telling whether the wills were executed in accordance with
the law of New York. In the absence of such evidence, the presumption is that
the law of succession of the foreign country is the same as the law of the
Philippines. However, he noted, that there were only two witnesses to the wills
of the Cunanan spouses and the Philippine law requires three witnesses and
that the wills were not signed on each and every page, a requirement of the
Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order
dated February 21, 1984, where she had sufficiently proven the applicable laws
of New York governing the execution of last wills and testaments.
On the same day, Judge de la Llana issued another order, denying the motion
of petitioner for the suspension of the proceedings but gave her 15 days upon
arrival in the country within which to act on the other order issued that same
day. Contending that the second portion of the second order left its finality to
the discretion of counsel for petitioner, the Cunanans filed a motion for the
reconsideration of the objectionable portion of the said order so that it would
conform with the pertinent provisions of the Judiciary Reorganization Act of
1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial
Court, Malolos, to which the reprobate case was reassigned, issued an order
stating that "(W)hen the last will and testament . . . was denied probate," the
case was terminated and therefore all orders theretofore issued should be
given finality. The same Order amended the February 21, 1984 Order by
requiring petitioner to turn over to the estate the inventoried property. It
considered the proceedings for all intents and purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of
the final settlement and termination of the probate cases in New York. Three
days later, petitioner filed a motion praying for the reconsideration of the Order
of April 30, 1985 on the strength of the February 21, 1984 Order granting her a
period of 15 days upon arrival in the country within which to act on the denial
of probate of the wills of the Cunanan spouses. On August 19, respondent
Judge granted the motion and reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter,
Natividad, filed a motion praying that since petitioner was ailing in Fort Lee,
New Jersey, U.S.A. and therefore incapacitated to act as special administratrix,
she (the counsel) should be named substitute special administratrix. She also
filed a motion for the reconsideration of the Order of February 21, 1984,
denying probate to the wills of the Cunanan spouses, alleging that respondent
Judge "failed to appreciate the significant probative value of the exhibits . . .
which all refer to the offer and admission to probate of the last wills of the
Cunanan spouses including all procedures undertaken and decrees issued in

connection with the said probate" (Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order
of August 19, 1985, alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned denied
the motion for reconsideration holding that the documents submitted by
petitioner proved "that the wills of the testator domiciled abroad were properly
executed, genuine and sufficient to possess real and personal property; that
letters testamentary were issued; and that proceedings were held on a foreign
tribunal and proofs taken by a competent judge who inquired into all the facts
and circumstances and being satisfied with his findings issued a decree
admitting to probate the wills in question." However, respondent Judge said
that the documents did not establish the law of New York on the procedure and
allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present further
evidence on the foreign law. After the hearing of the motion on April 25, 1986,
respondent Judge issued an order wherein he conceded that insufficiency of
evidence to prove the foreign law was not a fatal defect and was curable by
adducing additional evidence. He granted petitioner 45 days to submit the
evidence to that effect.
However, without waiting for petitioner to adduce the additional evidence,
respondent Judge ruled in his order dated June 20, 1986 that he found "no
compelling reason to disturb its ruling of March 31, 1986" but allowed
petitioner to "file anew the appropriate probate proceedings for each of the
testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second motion for
reconsideration stating that she was "ready to submit further evidence on the
law obtaining in the State of New York" and praying that she be granted "the
opportunity to present evidence on what the law of the State of New York has
on the probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the
probate of two wills in a single proceeding "would be a departure from the
typical and established mode of probate where one petition takes care of one
will." He pointed out that even in New York "where the wills in question were
first submitted for probate, they were dealt with in separate proceedings"
(Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the
Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court, which
provides that no party may institute more than one suit for a single cause of
action. She pointed out that separate proceedings for the wills of the spouses
which contain basically the same provisions as they even named each other as
a beneficiary in their respective wills, would go against "the grain of
inexpensive, just and speedy determination of the proceedings" (Records, pp.

405-407).
On September 11, 1986, petitioner filed a supplement to the motion for
reconsideration, citing Benigno v. De La Pea, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had been filed out of
time and that the adverse party had not been furnished with a copy thereof. In
her compliance, petitioner stated that she had furnished a copy of the motion
to the counsel of the Cunanan heirs and reiterated her motion for a "final ruling
on her supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for
reconsideration filed by petitioner on the grounds that "the probate of separate
wills of two or more different persons even if they are husband and wife cannot
be undertaken in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence
offered at the hearing of April 11, 1983 sufficiently proved the laws of the State
of New York on the allowance of wills, and that the separate wills of the
Cunanan spouses need not be probated in separate proceedings.
(g)
certifications from the Secretary of State that Judge Reagan is duly
authorized to grant exemplified copies of the decree of probate, letters
testamentary and all proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");
(h)
certificates of Judge Reagan and the Chief Clerk that letters
testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i)
certification to the effect that it was during the term of Judge Reagan
that a decree admitting the wills to probate had been issued and appointing
Rafael G. Cunanan as alternate executor (Exhs. "H-3" and
"I-10");
(j)
the decrees on probate of the two wills specifying that proceedings
were held and proofs duly taken (Exhs. "H-4" and "I-5");
(k)
decrees on probate of the two wills stating that they were properly
executed, genuine and valid and that the said instruments were admitted to
probate and established as wills valid to pass real and personal property (Exhs.
"H-5" and "I-5"); and
II
Petitioner contends that the following pieces of evidence she had submitted
before respondent Judge are sufficient to warrant the allowance of the wills:
(a)
two certificates of authentication of the respective wills of Evelyn and
Jose by the Consulate General of the Philippines (Exhs. "F" and "G");
(b)
two certifications from the Secretary of State of New York and
Custodian of the Great Seal on the facts that Judge Bernard L. Reagan is the
Surrogate of the Country of Onondaga which is a court of record, that his
signature and seal of office are genuine, and that the Surrogate is duly
authorized to grant copy of the respective wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(l)
certificates of Judge Reagan and the Chief Clerk on the genuineness
and authenticity of each others signatures in the exemplified copies of the
decrees of probate, letters testamentary and proceedings held in their court
(Exhs. "H-6" and "I-6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the Surrogate
Courts Decision of April 13, 1983 and that the proceedings were terminated on
November 29, 1984.
The respective wills of the Cunanan spouses, who were American citizens, will
only be effective in this country upon compliance with the following provision
of the Civil Code of the Philippines:
(c)
two certificates of Judge Reagan and Chief Clerk Donald E. Moore
stating that they have in their records and files the said wills which were
recorded on April 7, 1982 (Exhs. "F-2" and "G-2");
Art. 816. The will of an alien who is abroad produces effect in the Philippines if
made with the formalities prescribed by the law of the place in which he
resides, or according to the formalities observed in his country, or in conformity
with those which this Code prescribes.
(d)
the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G3" "G-6");
Thus, proof that both wills conform with the formalities prescribed by New York
laws or by Philippine laws is imperative.
(e)
certificates of Judge Reagan and the Chief Clerk certifying to the
genuineness and authenticity of the exemplified copies of the two wills (Exhs.
"F-7" and "F-7");
The evidence necessary for the reprobate or allowance of wills which have
been probated outside of the Philippines are as follows: (1) the due execution
of the will in accordance with the foreign laws; (2) the testator has his domicile
in the foreign country and not in the Philippines; (3) the will has been admitted
to probate in such country; (4) the fact that the foreign tribunal is a probate
court, and (5) the laws of a foreign country on procedure and allowance of wills
(f)
two certificates of authentication from the Consulate General of the
Philippines in New York (Exh. "H" and "F").
(III Moran Commentaries on the Rules of Court, 1970 ed., pp. 419-429; Suntay
v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for
the first and last requirements, the petitioner submitted all the needed
evidence.
The necessity of presenting evidence on the foreign laws upon which the
probate in the foreign country is based is impelled by the fact that our courts
cannot take judicial notice of them (Philippine Commercial and Industrial Bank
v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more
time to submit the pertinent procedural and substantive New York laws but
which request respondent Judge just glossed over. While the probate of a will is
a special proceeding wherein courts should relax the rules on evidence, the
goal is to receive the best evidence of which the matter is susceptible before a
purported will is probated or denied probate (Vda. de Ramos v. Court of
Appeals, 81 SCRA 393 [1978]).
There is merit in petitioners insistence that the separate wills of the Cunanan
spouses should be probated jointly. Respondent Judges view that the Rules on
allowance of wills is couched in singular terms and therefore should be
interpreted to mean that there should be separate probate proceedings for the
wills of the Cunanan spouses is too literal and simplistic an approach. Such
view overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court,
which advise that the rules shall be "liberally construed in order to promote
their object and to assist the parties in obtaining just, speedy, and inexpensive
determination of every action and proceeding."
A literal application of the Rules should be avoided if they would only result in
the delay in the administration of justice (Acain v. Intermediate Appellate
Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the
testators reciprocal benefit or for the benefit of a third person (Civil Code of
the Philippines, Article 818). In the case at bench, the Cunanan spouses
executed separate wills. Since the two wills contain essentially the same
provisions and pertain to property which in all probability are conjugal in
nature, practical considerations dictate their joint probate. As this Court has
held a number of times, it will always strive to settle the entire controversy in a
single proceeding leaving no root or branch to bear the seeds of future
litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very glaring
fact petitioner has always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of
Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the
proceedings. Thus, even in the instant petition, she only impleaded respondent
Judge, forgetting that a judge whose order is being assailed is merely a
nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall
"cause notice thereof to be given as in case of an original will presented for
allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard
to notices, the will probated abroad should be treated as if it were an "original
will" or a will that is presented for probate for the first time. Accordingly,
compliance with Sections 3 and 4 of Rule 76, which require publication and
notice by mail or personally to the "known heirs, legatees, and devisees of the
testator resident in the Philippines" and to the executor, if he is not the
petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim,
are entitled to notices of the time and place for proving the wills. Under Section
4 of Rule 76 of the Revised Rules of Court, the "court shall 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, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow
petitioner reasonable time within which to submit evidence needed for the joint
probate of the wills of the Cunanan spouses and see to it that the brothers and
sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings
pertinent to the probate proceedings.
SO ORDERED.
SECOND DIVISION
IN RE: IN THE MATTER OF THE

PETITION TO APPROVE THE WILL
OF RUPERTA PALAGANAS WITH
PRAYER FOR THE APPOINTMENT
OF SPECIAL ADMINISTRATOR,
MANUEL MIGUEL PALAGANAS and
BENJAMIN GREGORIO PALAGANAS,
Petitioners,
- versus ABAD,
MENDOZA, and
SERENO,* JJ.
ERNESTO PALAGANAS,
Respondent.
G.R. No. 169144
Present:
CARPIO, J., Chairperson,
NACHURA,
Promulgated:
January 26, 2011

x --------------------------------------------------------------------------------------- x
DECISION
ABAD, J.:
This case is about the probate before Philippine court of a will executed
abroad by a foreigner although it has not been probated in its place of
execution.
On July 29, 2005 the CA rendered a decision,[4] affirming the assailed

order of the RTC,[5] holding that the RTC properly allowed the probate of the
will, subject to respondent Ernestos submission of the authenticated copies of
the documents specified in the order and his posting of required bond. The CA
pointed out that Section 2, Rule 76 of the Rules of Court does not require prior
probate and allowance of the will in the country of its execution, before it can
be probated in the Philippines. The present case, said the CA, is different from
reprobate, which refers to a will already probated and allowed abroad.
Reprobate is governed by different rules or procedures. Unsatisfied with the
decision, Manuel and Benjamin came to this Court.
The Facts and the Case
The Issue Presented
On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who

became a naturalized United States (U.S.) citizen, died single and childless. In
the last will and testament she executed in California, she designated her
brother, Sergio C. Palaganas (Sergio), as the executor of her will for she had left
properties in the Philippines and in the U.S.
The key issue presented in this case is whether or not a will executed by
a foreigner abroad may be probated in the Philippines although it has not been
previously probated and allowed in the country where it was executed.
On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another

brother of Ruperta, filed with the Regional Trial Court (RTC) of Malolos, Bulacan,
a petition for the probate of Rupertas will and for his appointment as special
administrator of her estate.[1] On October 15, 2003, however, petitioners
Manuel Miguel Palaganas (Manuel) and Benjamin Gregorio Palaganas
(Benjamin), nephews of Ruperta, opposed the petition on the ground that
Rupertas will should not be probated in the Philippines but in the U.S. where
she executed it. Manuel and Benjamin added that, assuming Rupertas will
could be probated in the Philippines, it is invalid nonetheless for having been
executed under duress and without the testators full understanding of the
consequences of such act. Ernesto, they claimed, is also not qualified to act as
administrator of the estate.
Petitioners Manuel and Benjamin maintain that wills executed by

foreigners abroad must first be probated and allowed in the country of its
execution before it can be probated here. This, they claim, ensures prior
compliance with the legal formalities of the country of its execution. They
insist that local courts can only allow probate of such wills if the proponent
proves that: (a) the testator has been admitted for probate in such foreign
country, (b) the will has been admitted to probate there under its laws, (c) the
probate court has jurisdiction over the proceedings, (d) the law on probate
procedure in that foreign country and proof of compliance with the same, and
(e) the legal requirements for the valid execution of a will.
Meantime, since Rupertas foreign-based siblings, Gloria Villaluz and

Sergio, were on separate occasions in the Philippines for a short visit,
respondent Ernesto filed a motion with the RTC for leave to take their
deposition, which it granted. On April, 13, 2004 the RTC directed the parties to
submit their memorandum on the issue of whether or not Rupertas U.S. will
may be probated in and allowed by a court in the Philippines.
On June 17, 2004 the RTC issued an order:[2] (a) admitting to probate
Rupertas last will; (b) appointing respondent Ernesto as special administrator
at the request of Sergio, the U.S.-based executor designated in the will; and (c)
issuing the Letters of Special Administration to Ernesto.
Aggrieved by the RTCs order, petitioner nephews Manuel and Benjamin
appealed to the Court of Appeals (CA),[3] arguing that an unprobated will
executed by an American citizen in the U.S. cannot be probated for the first
time in the Philippines.
The Courts Ruling
But our laws do not prohibit the probate of wills executed by foreigners
abroad although the same have not as yet been probated and allowed in the
countries of their execution. A foreign will can be given legal effects in our
jurisdiction. Article 816 of the Civil Code states that the will of an alien who is
abroad produces effect in the Philippines if made in accordance with the
formalities prescribed by the law of the place where he resides, or according to
the formalities observed in his country.[6]
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure
provides that if the decedent is an inhabitant of a foreign country, the RTC of
the province where he has an estate may take cognizance of the settlement of
such estate. Sections 1 and 2 of Rule 76 further state that the executor,
devisee, or legatee named in the 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, whether the same be in his
possession or not, or is lost or destroyed.
Our rules require merely that the petition for the allowance of a will must
show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the
names, ages, and residences of the heirs, legatees, and devisees of the
testator or decedent; (c) the probable value and character of the property of
the estate; (d) the name of the person for whom letters are prayed; and (e) if
the will has not been delivered to the court, the name of the person having
custody of it. Jurisdictional facts refer to the fact of death of the decedent, his
residence at the time of his death in the province where the probate court is
sitting, or if he is an inhabitant of a foreign country, the estate he left in such
province.[7] The rules do not require proof that the foreign will has already
been allowed and probated in the country of its execution.
In the matter of the estate of EMIL H. JOHNSON. EBBA INGEBORG JOHNSON,

applicant-appellant,
In insisting that Rupertas will should have been first probated and
allowed by the court of California, petitioners Manuel and Benjamin obviously
have in mind the procedure for the reprobate of will before admitting it here.
But, reprobate or re-authentication of a will already probated and allowed in a
foreign country is different from that probate where the will is presented for the
first time before a competent court. Reprobate is specifically governed by Rule
77 of the Rules of Court. Contrary to petitioners stance, since this latter rule
applies only to reprobate of a will, it cannot be made to apply to the present
case. In reprobate, the local court acknowledges as binding the findings of the
foreign probate court provided its jurisdiction over the matter can be
established.
On February 4, 1916, Emil H. Johnson, a native of Sweden and a naturalized

citizen of the United States, died in the city of Manila, leaving a will, dated
September 9, 1915, by which he disposed of an estate, the value of which, as
estimated by him, was P231,800. This document is an holographic instrument,
being written in the testator's own handwriting, and is signed by himself and
two witnesses only, instead of three witnesses required by section 618 of the
Code of Civil Procedure. This will, therefore, was not executed in conformity
with the provisions of law generally applicable to wills executed by inhabitants
of these Islands, and hence could not have been proved under section 618.
Besides, petitioners stand is fraught with impractically. If the instituted

heirs do not have the means to go abroad for the probate of the will, it is as
good as depriving them outright of their inheritance, since our law requires
that no will shall pass either real or personal property unless the will has been
proved and allowed by the proper court.[8]
Notably, the assailed RTC order of June 17, 2004 is nothing more than an
initial ruling that the court can take cognizance of the petition for probate of
Rupertas will and that, in the meantime, it was designating Ernesto as special
administrator of the estate. The parties have yet to present evidence of the
due execution of the will, i.e. the testators state of mind at the time of the
execution and compliance with the formalities required of wills by the laws of
California. This explains the trial courts directive for Ernesto to submit the
duly authenticated copy of Rupertas will and the certified copies of the Laws of
Succession and Probate of Will of California.
WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of
Appeals decision in CA-G.R. CV 83564 dated July 29, 2005.
SO ORDERED.
Hartigan & Welch for applicant and appellant.

Hartford Beaumont for Victor Johnson and others as appellees.
Chas. E. Tenney for Alejandra Ibaez de Johnson, personally and as guardian,
and for Simeona Ibaez, appellees.
STREET, J.:
On February 9, 1916, however, a petition was presented in the Court of First

Instance of the city of Manila for the probate of this will, on the ground that
Johnson was at the time of his death a citizen of the State of Illinois, United
States of America; that the will was duly executed in accordance with the laws
of that State; and hence could properly be probated here pursuant to section
636 of the Code of Civil Procedure. This section reads as follows:
Will made here by alien. A will made within the Philippine Islands by a citizen
or subject of another state or country, which is executed in accordance with
the law of the state or country of which he is a citizen or subject, and which
might be proved and allowed by the law of his own state or country, may be
proved, allowed, and recorded in the Philippine Islands, and shall have the
same effect as if executed according to the laws of these Islands.
The hearing on said application was set for March 6, 1916, and three weeks
publication of notice was ordered in the "Manila Daily Bulletin." Due publication
was made pursuant to this order of the court. On March 6, 1916, witnesses
were examined relative to the execution of the will; and upon March 16th
thereafter the document was declared to be legal and was admitted to probate.
At the same time an order was made nominating Victor Johnson and John T.
Pickett as administrators of the estate, with the sill annexed. Shortly thereafter
Pickett signified his desire not to serve, and Victor Johnson was appointed sole
administrator.
EN BANC
G.R. No. L-12767
November 16, 1918
By the will in question the testator gives to his brother Victor one hundred
shares of the corporate stock in the Johnson-Pickett Rope Company; to his
father and mother in Sweden, the sum of P20,000; to his daughter Ebba
Ingeborg, the sum of P5,000; to his wife, Alejandra Ibaez, the sum of P75 per
month, if she remains single; to Simeona Ibaez, spinster, P65 per month, if
she remains single. The rest of the property is left to the testator's five children
Mercedes, Encarnacion, Victor, Eleonor and Alberto.
The biographical facts relative to the deceased necessary to an understanding
of the case are these: Emil H. Johnson was born in Sweden, May 25, 1877, from
which country he emigrated to the United States and lived in Chicago, Illinois,
from 1893 to 1898. On May 9, 1898, at Chicago, he was married to Rosalie
Ackeson, and immediately thereafter embarked for the Philippine Islands as a
soldier in the Army of the United States. As a result of relations between
Johnson and Rosalie Ackeson a daughter, named Ebba Ingeborg, was born a
few months after their marriage. This child was christened in Chicago by a
pastor of the Swedish Lutheran Church upon October 16, 1898.
After Johnson was discharged as a soldier from the service of the United States
he continued to live in the Philippine Islands, and on November 20, 1902, the
wife, Rosalie Johnson, was granted a decree of divorce from him in the Circuit
Court of Cook County, Illinois, on the ground of desertion. A little later Johnson
appeared in the United States on a visit and on January 10, 1903, procured a
certificate of naturalization at Chicago. From Chicago he appears to have gone
to Sweden, where a photograph, exhibited in evidence in this case, was taken
in which he appeared in a group with his father, mother, and the little
daughter, Ebba Ingeborg, who was then living with her grandparents in
Sweden. When this visit was concluded, the deceased returned to Manila,
where he prospered in business and continued to live until his death.
In this city he appears to have entered into marital relations with Alejandra
Ibaez, by whom he had three children, to wit, Mercedes, baptized May 31,
1903; Encarnacion, baptized April 29, 1906; and Victor, baptized December 9,
1907. The other two children mentioned in the will were borne to the deceased
by Simeona Ibaez.
On June 12, 1916, or about three months after the will had been probated, the
attorneys for Ebba Ingeborg Johnson entered an appearance in her behalf and
noted an exception to the other admitting the will to probate. On October 31,
1916, the same attorneys moved the court to vacate the order of March 16 and
also various other orders in the case. On February 20, 1917, this motion was
denied, and from this action of the trial court the present appeal has been
perfected.
As will be discerned, the purpose of the proceeding on behalf of the petitioner
is to annul the decree of probate and put the estate into intestate
administration, thus preparing the way for the establishment of the claim of
the petitioner as the sole legitimate heir of her father.
The grounds upon which the petitioner seeks to avoid the probate are four in
number and may be stated, in the same sequence in which they are set forth
in the petition, as follows:
(1)
Emil H. Johnson was a resident of the city of Manila and not a resident
of the State of Illinois at the time the will in question was executed;
(2)
The will is invalid and inadequate to pass real and personal property in
the State of Illinois;
(3)
The order admitting the will to probate was made without notice to
the petitioner; and
(4)
The order in question was beyond the jurisdiction of the court.
It cannot of course be maintained that a court of first instance lacks essential

jurisdiction over the probate of wills. The fourth proposition above stated must,
accordingly, be interpreted in relation with the third and must be considered as
a corollary deduced from the latter. Moreover, both the third and fourth
grounds stated take precedence, by reason of their more fundamental
implications, over the first two; and a logical exposition of the contentions of
the petitioner is expressed in the two following propositions:
(I)
The order admitting the will to probate was beyond the jurisdiction of
the court and void because made without notice to the petitioner;
(II)
The judgment from which the petitioner seeks relief should be set
aside because the testator was not a resident of the State of Illinois and the will
was not in conformity with the laws of that State.
In the discussion which is to follow we shall consider the problems arising in
this cae in the order last above indicated. Upon the question, then, of the
jurisdiction of the court, it is apparent from an inspection of the record of the
proceedings in the court below that all the steps prescribed by law as
prerequisites to the probate of a will were complied with in every respect and
that the probate was effected in external conformity with all legal
requirements. This much is unquestioned. It is, however, pointed out in the
argument submitted in behalf of the petitioner, that, at the time the court
made the order of publication, it was apprised of the fact that the petitioner
lived in the United States and that as daughter and heir she was necessarily
interested in the probate of the will. It is, therefore, insisted that the court
should have appointed a date for the probate of the will sufficiently far in the
future to permit the petitioner to be present either in person or by
representation; and it is said that the failure of the court thus to postpone the
probate of the will constitutes an infringement of that provision of the
Philippine Bill which declared that property shall not be taken without due
process of law.
On this point we are of the opinion that the proceedings for the probate of the
will were regular and that the publication was sufficient to give the court
jurisdiction to entertain the proceeding and to allow the will to be probated.
As was said in the case of In re Davis (136 Cal., 590, 596), "the proceeding as
to the probate of a will is essentially one in rem, and in the very nature of
things the state is allowed a wide latitude in determining the character of the
constructive notice to be given to the world in a proceeding where it has
absolute possession of the res. It would be an exceptional case where a court
would declare a statute void, as depriving a party of his property without due
process of law, the proceeding being strictly in rem, and the res within the
state, upon the ground that the constructive notice prescribed by the statute
was unreasonably short."
In that case the petitioner had been domiciled in the Hawaiian Islands at the
time of the testator's death; and it was impossible, in view of the distance and
means of communication then existing, for the petitioner to appear and oppose
the probate on the day set for the hearing in California. It was nevertheless
held that publication in the manner prescribed by statute constituted due
process of law. (See Estate of Davis, 151 Cal., 318; Tracy vs. Muir, 151 Cal.,
363.)
In the Davis case (136 Cal., 590) the court commented upon the fact that,
under the laws of California, the petitioner had a full year within which she
might have instituted a proceeding to contest the will; and this was stated as
one of the reasons for holding that publication in the manner provided by
statute was sufficient. The same circumstance was commented upon in
O'Callaghan vs. O'Brien (199 U. S., 89), decided in the Supreme Court of the
United States. This case arose under the laws of the State of Washington, and
it was alleged that a will had been there probated without the notice of
application for probate having been given as required by law. It was insisted
that this was an infringement of the Fourteenth Amendment of the Constitution
of the United States. This contention was, however, rejected and it was held
that the statutory right to contest the will within a year was a complete
refutation of the argument founded on the idea of a violation of the due
process provision.
The laws of these Islands, in contrast with the laws in force in perhaps all of the
States of the American Union, contain no special provision, other than that
allowing an appeal in the probate proceedings, under which relief of any sort
can be obtained from an order of a court of first instance improperly allowing
or disallowing a will. We do, however, have a provision of a general nature
authorizing a court under certain circumstances to set aside any judgment,
order, or other proceeding whatever. This provision is found in section 113 of
the Code of Civil Procedure, which reads as follows:
Upon such terms as may be just the court may relieve a party or his legal
representative from a judgment, order or other proceeding taken against him
through his mistake, inadvertence, surprise or excusable neglect; Provided,
That application therefor be made within a reasonable time, but in no case
exceeding six months after such judgment, order, or proceeding was taken.
The use of the word "judgment, order or other proceeding" in this section
indicates an intention on the part of the Legislature to give a wide latitude to
the remedy here provided, and in our opinion its operation is not to be
restricted to judgments or orders entered in ordinary contentious litigation
where a plaintiff impleads a defendant and brings him into court by personal
service of process. In other words the utility of the provision is not limited to
actions proper but extends to all sorts of judicial proceedings.
In the second section of the Code of Civil Procedure it is declared that the
provisions of this Code shall be liberally construed to promote its object and to
assist the parties in obtaining speedy justice. We think that the intention thus
exhibited should be applied in the interpretation of section 113; and we hold
that the word "party," used in this section, means any person having an
interest in the subject matter of the proceeding who is in a position to be
concluded by the judgment, order, to other proceeding taken.
The petitioner, therefore, in this case could have applied, under the section
cited, at any time within six months for March 16, 1916, and upon showing that
she had been precluded from appearing in the probate proceedings by
conditions over which she had no control and that the order admitting the will
to probate had been erroneously entered upon insufficient proof or upon a
supposed state of facts contrary to the truth, the court would have been
authorized to set the probate aside and grant a rehearing. It is no doubt true
that six months was, under the circumstances, a very short period of time
within which to expect the petitioner to appear and be prepared to contest the
probate with the proof which she might have desired to collect from remote
countries. Nevertheless, although the time allowed for the making of such
application was inconveniently short, the remedy existed; and the possibility of
its use is proved in this case by the circumstance that on June 12, 1916, she in
fact here appeared in court by her attorneys and excepted to the order
admitting the will to probate.
It results that, in conformity with the doctrine announced in the Davis case,
above cited, the proceedings in the court below were conducted in such
manner as to constitute due process of law. The law supplied a remedy by
which the petitioner might have gotten a hearing and have obtained relief from
the order by which she is supposed to have been injured; and though the
period within which the application should have been made was short, the
remedy was both possible and practicable.
From what has been said it follows that the order of March 16, 1916, admitting
the will of Emil H. Johnson to probate cannot be declared null and void merely
because the petitioner was unavoidably prevented from appearing at the
original hearing upon the matter of the probate of the will in question. Whether
the result would have been the same if our system of procedure had contained
no such provision as that expressed in section 113 is a matter which we need
not here consider.
Intimately connected with the question of the jurisdiction of the court, is

another matter which may be properly discussed at this juncture. This relates
to the interpretation to be placed upon section 636 of the Code of Civil
Procedure. The position is taken by the appellant that this section is applicable
only to wills of liens; and in this connection attention is directed to the fact that
the epigraph of this section speaks only of the will made here by an alien and
to the further fact that the word "state" in the body of the section is not
capitalized. From this it is argued that section 636 is not applicable to the will
of a citizen of the United States residing in these Islands.lawphil.net
We consider these suggestions of little weight and are of the opinion that, by
the most reasonable interpretation of the language used in the statute, the
words "another state or country" include the United States and the States of
the American Union, and that the operation of the statute is not limited to wills
of aliens. It is a rule of hermeneutics that punctuation and capitalization are
aids of low degree in interpreting the language of a statute and can never
control against the intelligible meaning of the written words. Furthermore, the
epigraph, or heading,, of a section, being nothing more than a convenient
index to the contents of the provision, cannot have the effect of limiting the
operative words contained in the body of the text. It results that if Emil H.
Johnson was at the time of his death a citizen of the United States and of the
State of Illinois, his will was provable under this section in the courts of the
Philippine Islands, provided the instrument was so executed as to be
admissible to probate under the laws of the State of Illinois.
We are thus brought to consider the second principal proposition stated at the
outset of this discussion, which raises the question whether the order f probate
can be set aside in this proceeding on the other ground stated in the petition,
namely, that the testator was not a resident of the State of Illinois and that the
will was not made in conformity with the laws of that State.
The order of the Court of First Instance admitting the will to probate recites,
among other things:
That upon the date when the will in question was executed Emil H. Johnson was
a citizen of the United States, naturalized in the State of Illinois, County of
Cook, and that the will in question was executed in conformity with the
dispositions of the law f the State of Illinois.
We consider this equivalent to a finding that upon the date of the execution of
the will the testator was a citizen of the State of Illinois and that the will was
executed in conformity with the laws of that State. Upon the last point the
finding is express; and in our opinion the statement that the testator was a
citizen of the United States, naturalized in the State of Illinois, should be taken
to imply that he was a citizen of the State of Illinois, as well as of the United
States.
The naturalization laws of the United States require, as a condition precedent
to the granting of the certificate of naturalization, that the applicant should
have resided at least five years in the United States and for one year within the
State or territory where the court granting the naturalization papers is held;
and in the absence of clear proof to the contrary it should be presumed that a
person naturalized in a court of a certain State thereby becomes a citizen of
that State as well as of the United States.
In this connection it should be remembered that the Fourteenth Amendment to
the Constitution of the United States declares, in its opening words, that all
persons naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside.
It is noteworthy that the petition by which it is sought to annul the probate of
this will does not assert that the testator was not a citizen of Illinois at the date
when the will was executed. The most that is said on this point is he was
"never a resident of the State of Illinois after the year 1898, but became and
was a resident of the city of Manila," etc. But residence in the Philippine Islands
is compatible with citizenship in Illinois; and it must be considered that the
allegations of the petition on this point are, considered in their bearing as an
attempt to refute citizenship in Illinois, wholly insufficient.
As the Court of First Instance found that the testator was a citizen of the State
of Illinois and that the will was executed in conformity with the laws of that
State, the will was necessarily and properly admitted to probate. And how is it
possible to evade the effect of these findings?
In Section 625 of the Code of Civil Procedure it is declared that "the allowance
by the court of a will of real or personal property shall be conclusive as to its
due execution."
The due execution of a will involves conditions relating to a number of matters,
such as the age and mental capacity of the testator, the signing of the
document by the testator, or by someone in his behalf, and the
acknowledgment of the instrument by him in the presence of the required
number of witnesses who affix their signatures to the will to attest the act. The
proof of all these requisites is involved in the probate; and as to each and all of
them the probate is conclusive. (Castaeda vs. Alemany, 3 Phil. Rep., 426;
Pimentel vs. Palanca, 5 Phil. Rep., 436; Chiong Joc-Soy vs. Vao, 8 Phil. Rep.,
119; Sanchez vs. Pascual, 11 Phil. Rep., 395; Montaano vs. Suesa, 14 Phil.
Rep., 676.)
Our reported cases do not contain the slightest intimation that a will which has
been probated according to law, and without fraud, can be annulled, in any
other proceeding whatever, on account of any supposed irregularity or defect
in the execution of the will or on account of any error in the action of the court
upon the proof adduced before it. This court has never been called upon to
decide whether, in case the probate of a will should be procured by fraud, relief
could be granted in some other proceeding; and no such question is now
presented. But it is readily seen that if fraud were alleged, this would introduce
an entirely different factor in the cae. In Austrua vs. Ventenilla (21 Phil. Rep.,
180, 184), it was suggested but not decided that relief might be granted in
case the probate of a will were procured by fraud.
The circumstance that the judgment of the trial court recites that the will was
executed in conformity with the law of Illinois and also, in effect, that the
testator was a citizen of that State places the judgment upon an unassailable
basis so far as any supposed error apparent upon the fact of the judgment is
concerned. It is, however, probable that even if the judgment had not
contained these recitals, there would have been a presumption from the
admission of the will to probate as the will of a citizen of Illinois that the facts
were as recited in the order of probate.
As was said by this court in the case of Banco Espaol-Filipino vs. Palanca (37
Phil. Rep., 921), "There is no principle of law better settled than that after
jurisdiction has once been acquired, every act of a court of general jurisdiction
shall be presumed to have been rightly done. This rule is applied to every
judgment or decree rendered in the various stages of the proceedings from
their initiation to their completion (Voorhees vs. United States Bank, 10 Pet.,
314; 35 U. S., 449); and if the record is silent with respect to any fact which
must have established before the court could have rightly acted, it will be
presumed that such fact was properly brought to its knowledge."
The Court of First Instance is a court of original and general jurisdiction; and
there is no difference in its faculties in this respect whether exercised in
matters of probate or exerted in ordinary contentious litigation. The trial court
therefore necessarily had the power to determine the facts upon which the
propriety of admitting the will to probate depended; and the recital of those
facts in the judgment was probably not essential to its validity. No express
ruling is, however, necessary on this point.
What has been said effectually disposes of the petition considered in its aspect
as an attack upon the order of probate for error apparent on the face of the
record. But the petitioner seeks to have the judgment reviewed, it being
asserted that the findings of the trial court especially on the question of the
citizenship of the testator are not supported by the evidence. It needs but a
moment's reflection, however, to show that in such a proceeding as this it is
not possible to reverse the original order on the ground that the findings of the
trial court are unsupported by the proof adduced before that court. The only
proceeding in which a review of the evidence can be secured is by appeal, and
the case is not before us upon appeal from the original order admitting the will
to probate. The present proceedings by petition to set aside the order of
probate, and the appeal herein is from the order denying this relief. It is
obvious that on appeal from an order refusing to vacate a judgment it is not
possible to review the evidence upon which the original judgment was based.
To permit this would operate unduly to protract the right of appeal.
However, for the purpose of arriving at a just conception of the case from the
point of view of the petitioner, we propose to examine the evidence submitted
upon the original hearing, in connection with the allegations of the petition, in
order to see, first, whether the evidence submitted to the trial court was
sufficient to justify its findings, and, secondly, whether the petition contains
any matter which would justify the court in setting the judgment, aside. In this
connection we shall for a moment ignore the circumstance that the petition
was filed after the expiration of the six months allowed by section 113 of the
Code of Civil Procedure.
The principal controversy is over the citizenship of the testator. The evidence
adduced upon this point in the trial court consists of the certificate of
naturalization granted upon January 10, 1903, in the Circuit Court of Cook
County, Illinois, in connection with certain biographical facts contained in the
oral evidence. The certificate of naturalization supplies incontrovertible proof
that upon the date stated the testator became a citizen of the United States,
and inferentially also a citizen of said State. In the testimony submitted to the
trial court it appears that, when Johnson first came to the United States as a
boy, he took up his abode in the State of Illinois and there remained until he
came as a soldier in the United States Army to the Philippine Islands. Although
he remained in these Islands for sometime after receiving his discharge, no
evidence was adduced showing that at the time he returned to the United
States, in the autumn of 1902, he had then abandoned Illinois as the State of
his permanent domicile, and on the contrary the certificate of naturalization
itself recites that at that time he claimed to be a resident of Illinois.
Now, if upon January 10, 1903, the testator became a citizen of the United
States and of the State of Illinois, how has he lost the character of citizen with
respect to either of these jurisdictions? There is no law in force by virtue of
which any person of foreign nativity can become a naturalized citizen of the
Philippine Islands; and it was, therefore, impossible for the testator, even if he
had so desired, to expatriate himself from the United States and change his
political status from a citizen of the United States to a citizen of these Islands.
This being true, it is to be presumed that he retained his citizenship in the
State of Illinois along with his status as a citizen of the United States. It would
be novel doctrine to Americans living in the Philippine Islands to be told that by
living here they lose their citizenship in the State of their naturalization or
nativity.
We are not unmindful of the fact that when a citizen of one State leaves it and
takes up his abode in another State with no intention of returning, he
immediately acquires citizenship in the State of his new domicile. This is in
accordance with that provision of the Fourteenth Amendment to the
Constitution of the United States which says that every citizen of the United
States is a citizen of the State where in he resides. The effect of this provision
necessarily is that a person transferring his domicile from one State to another
loses his citizenship in the State of his original above upon acquiring citizenship
in the State of his new abode. The acquisition of the new State citizenship
extinguishes the old. That situation, in our opinion, has no analogy to that
which arises when a citizen of an American State comes to reside in the
Philippine Islands. Here he cannot acquire a new citizenship; nor by the mere
change of domicile does he lose that which he brought with him.
The proof adduced before the trial court must therefore be taken as showing
that, at the time the will was executed, the testator was, as stated in the order
of probate, a citizen of the State of Illinois. This, in connection with the
circumstance that the petition does not even so much as deny such citizenship
but only asserts that the testator was a resident of the Philippine Islands,
demonstrates the impossibility of setting the probate aside for lack of the
necessary citizenship on the part of the testator. As already observed, the
allegation of the petition on this point is wholly insufficient to justify any relief
whatever.
Upon the other point as to whether the will was executed in conformity with
the statutes of the State of Illinois we note that it does not affirmatively
appear from the transaction of the testimony adduced in the trial court that
any witness was examined with reference to the law of Illinois on the subject of
the execution of will. The trial judge no doubt was satisfied that the will was
properly executed by examining section 1874 of the Revised Statutes of Illinois,
as exhibited in volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed.,
p. 426; and he may have assumed that he could take judicial notice of the laws
of Illinois under section 275 of the Code of Civil Procedure. If so, he was in our
opinion mistaken. that section authorizes the courts here to take judicial notice,
among other things, of the acts of the legislative department of the United
States. These words clearly have reference to Acts of the Congress of the
United States; and we would hesitate to hold that our courts can, under this
provision, take judicial notice of the multifarious laws of the various American
States. Nor do we think that any such authority can be derived from the
broader language, used in the same action, where it is said that our courts may
take judicial notice of matters of public knowledge "similar" to those therein
enumerated. The proper rule we think is to require proof of the statutes of the
States of the American Union whenever their provisions are determinative of
the issues in any action litigated in the Philippine courts.
Nevertheless, even supposing that the trial court may have erred in taking
judicial notice of the law of Illinois on the point in question, such error is not
now available to the petitioner, first, because the petition does not state any
fact from which it would appear that the law of Illinois is different from what
the court found, and, secondly, because the assignment of error and argument
for the appellant in this court raises no question based on such supposed error.
Though the trial court may have acted upon pure conjecture as to the law
prevailing in the State of Illinois, its judgment could not be set aside, even
upon application made within six months under section 113 of the Code of Civil
procedure, unless it should be made to appear affirmatively that the conjecture
was wrong. The petitioner, it is true, states in general terms that the will in
question is invalid and inadequate to pass real and personal property in the
State of Illinois, but this is merely a conclusion of law. The affidavits by which
the petition is accompanied contain no reference to the subject, and we are
cited to no authority in the appellant's brief which might tent to raise a doubt
as to the correctness of the conclusion of the trial court. It is very clear,
therefore, that this point cannot be urged as of serious moment.
But it is insisted in the brief for the appellant that the will in question was not
properly admissible to probate because it contains provisions which cannot be
given effect consistently with the laws of the Philippine Islands; and it is
suggested that as the petitioner is a legitimate heir of the testator she cannot
be deprived of the legitime to which she is entitled under the law governing
testamentary successions in these Islands. Upon this point it is sufficient to say
that the probate of the will does not affect the intrinsic validity of its provisions,
the decree of probate being conclusive only as regards the due execution of
the will. (Code of Civil Procedure, secs. 625, 614; Sahagun vs. De Gorostiza, 7
Phil. Rep., 347, 349; Chiong Joc-Soy vs. Vao, 8 Phil. Rep., 119, 121; Limjuco vs.
Ganara, 11 Phil. Rep., 393, 395.)
If, therefore, upon the distribution of this estate, it should appear that any
legacy given by the will or other disposition made therein is contrary to the law
applicable in such case, the will must necessarily yield upon that point and the
law must prevail. Nevertheless, it should not be forgotten that the intrinsic
validity of the provisions of this will must be determined by the law of Illinois
and not, as the appellant apparently assumes, by the general provisions here
applicable in such matters; for in the second paragraph of article 10 of the Civil
Code it is declared that "legal and testamentary successions, with regard to the
order of succession, as well as to the amount of the successional rights and to
the intrinsic validity of their provisions, shall be regulated by the laws of the
nation of the person whose succession is in question, whatever may be the
nature of the property and the country where it may be situate."
From what has been said, it is, we think, manifest that the petition submitted to
the court below on October 31, 1916, was entirely insufficient to warrant the
setting aside of the other probating the will in question, whether said petition
be considered as an attack on the validity of the decree for error apparent, or
whether it be considered as an application for a rehearing based upon the new
evidence submitted in the affidavits which accompany the petition. And in this
latter aspect the petition is subject to the further fatal defect that it was not
presented within the time allowed by law.
It follows that the trial court committed no error in denying the relief sought.
The order appealed from is accordingly affirmed with costs. So ordered.
EN BANC
G.R. No. L-2200
August 2, 1950
In re Will of Victor Bilbao. RAMON N. BILBAO, petitioner-appellant,

vs.
DALMACIO BILBAO, CLEOFAS BILBAO, EUSEBIA BILBAO, CATALINA BILBAO,
FILEMON ABRINGE and FRANCISCO ACADEMIA, oppositors-appellee.
Pedro Basa, Lamberto Macias and Francisco R. Capistrano for appellant.
Perpetuo A. Sandiong and Quinciano Vailoces for appellees.
MONTEMAYOR, J.:
This is an appeal from a decision of the Court of First Instance of Negros
Oriental denying the petition for admission to probate of the last will and
testament of Victor S. Bilbao who died on July 13, 1943, which petition was
filed by his widow and cotestator Ramona M. Navarro.
The will in question was executed on October 6, 1931, on a single page or
sheet by the deceased Victor Bilbao jointly with his wife Ramona M. Navarro.
The two testators in their testament directed that "all of our respective private
properties both real and personal, and all of our conjugal properties, and any
other property belonging to either or both of us, be given and transmitted to
anyone or either of us, who may survive the other, or who may remain the
surviving spouse of the other."
The petition for probate was opposed by one Filemon Abringe, a near relative
of the deceased, among other grounds, that the alleged will was executed by
the husband and wife for their reciprocal benefit and therefore not valid, and
that it was not executed and attested to as required by law. After hearing, the
trial court found the will to have been executed conjointly by the deceased
husband and wife for their reciprocal benefit, and that a will of that kind is
neither contemplated by Act No. 190, known as the Code of Civil Procedure nor
permitted by article 669 of the Civil Code which provides:
Two or more persons cannot make a will conjointly or in the same instrument,
either for their reciprocal benefit or for the benefit of a third person.
The only assignment of error made in the appeal is that "the lower court erred
in not finding that a joint and reciprocal will particularly between husband and
wife is valid under the present law." The thesis of the appellant is, that
"Chapter XXXI, particularly sections 614, 618, Act 190, appears to be a
complete enactment on the subject of execution of wills and may thus be
regarded as the expression of the whole law thereon, and that it must be
deemed to have impliedly repealed the provision of the Civil Code (Title III,
Chapter I) on the matter ;" that inasmuch as the present law on wills as
embodied in the Code of Civil Procedure has been taken from American law, it
should be interpreted in accordance with the said law, and because joint and
reciprocal wills are neither regarded as invalid nor on the contrary they are
allowed, then article 669 of the Civil Code prohibiting the execution of joint
wills whether reciprocal or for the benefit of a third party should be considered
as having been repealed and superseded by the new law.
We have made a rather extensive study of the cases decided by our Supreme
Court covering the field of wills, with particular attention to any reference to or
ruling on article 669 of the Civil Code but we have failed to find any case
wherein that particular codal provision has been discussed or applied,
declaring it either repealed or still in force. The sole question and issue
squarely raised in this appeal is, therefore one of first impression and naturally
we are constrained to act and to proceed with care and caution, realizing the
importance and far-reaching effects of any doctrine to be laid down by us in
the present case.
We cannot agree to the contention of the appellant that the provisions of the
Code of Civil Procedure on wills have completely superseded Chapter I, Title III
of the Civil Code on the same subject matter, resulting in the complete repeal
of said Civil Code provisions. In the study we have made of this subject, we
have found a number of cases decided by this court wherein several articles of
the Civil Code regarding wills have not only been referred to but have also
been applied side by side with the provisions of the Code of Civil Procedure.
In the case of in the matter of the will Kabigting (14 Phil., 463), where the will
was executed in the year 1908, articles 662 and 663 of the Civil Code
regarding capacity and incapacity of persons to dispose by will, have been
cited and applied together with section 618 of the Code of Civil Procedure
regarding requisites of wills.
In the case of Torres and Lopez De Bueno vs. Lopez (48 Phil., 772), article 666
of the Civil Code regarding mental capacity of the testator has been cited and
applied together with section 614 and 634 of the Code of Civil Procedure
regarding a will executed in 1924.
In the case of Marin vs. Nacianceno (19 Phil., 238), article 667 of the Civil Code
was cited in the dissenting opinion of Mr. Justice Torres.
In the cases of Postigo vs. Borjal (13 Phil., 240); In re Estate of Calderon (26
Phil., 333); Natividad vs. Gabino (36 Phil., 663) wherein the wills involved had
been executed after the enactment of the Code of Civil Procedure, particularly
the sections regarding wills, article 675 of the Civil Code regarding
interpretation of wills was cited and applied.
In the case of Samson vs. Naval (41 Phil., 838), article 739 of the Civil Code
regarding revocation of wills has been applied in harmony with section 623 of
the Code of Civil Procedure. The will involved was executed in 1915 when the
Code of Civil Procedure was already in force.
The above-cited authorities all go to show that it is not exactly correct to say
that the provisions of the Code of Civil Procedure regarding wills completely
cover the subject matter and therefore have superseded the provisions of the
Civil Code on the point.
It is also contended that in the case of Macrohon Ong Ham vs. Saavedra (51
Phil., 267) a will executed in the year 1923, which was made jointly by husband
and wife in the same instrument, was admitted to probate by the Court of First
Instance of Zamboanga and the decision was affirmed by this court, thereby
proving that this tribunal has disregarded the prohibition regarding the
execution of wills conjointly under article 669 of the Civil Code, meaning that
said article has already been repealed. After examining said case we find the
contention untenable. It is true that the will already described was allowed
probate by the trial court, but there was no appeal from the order approving
the will on the ground of its validity, but only on the manner the properties
involved were to be distributed or otherwise disposed of. The Supreme Court
never touched this point of invalidity nor the applicability of article 669 of the
Civil Code, but merely ruled that a testator may die both testate and intestate,
depending upon the properties sought to be disposed of by him and those to
be inherited by his heirs on intestate succession when not covered by the will.
As a rule this Tribunal does not pass upon the legality, enforceability, or
applicability of a law unless that the point is raised and put in issue, and it is
necessary to rule upon it in order to determine the case.
The provision of article 669 of the Civil Code prohibiting the execution of a will
by two or more persons conjointly or in the same instrument either for their
reciprocal benefit or for the benefit of a third person, is not unwise and is not
against public policy. The reason for this provision, especially as regards
husbands and wife is that when a will is made jointly or in the same
instrument, the spouse who is more aggressive, stronger in will or character
and dominant is liable to dictate the terms of the will for his or her own benefit
or for that of third persons whom he or she desires to favor. And, where the will
is not only joint but reciprocal, either one of the spouses who may happen to
be unscrupulous, wicked, faithless, or desperate, knowing as he or she does
the terms of the will whereby the whole property of the spouses both conjugal
and paraphernal goes to the survivor, may be tempted to kill or dispose of the
other.
Considering the wisdom of the provisions of this article 669 and the fact that it
has not been repealed, at least not expressly, as well as the consideration that
its provisions are not incompatible with those of the Code of Civil Procedure on
the subject of wills, we believe and rule that said article 669 of the Civil Code is
still in force. And we are not alone in this opinion. Mr. Justice Willard as shown
by his notes on the Civil Code, on page 18 believes that this article 669 is still
in force. Sinco and Capistrano in their work on the Civil Code, Vol. II, page 33,
favorably cite Justice Willard's opinion that this article is still in force. Judge
Camus in his book on the Civil Code does not include this article among those
he considers repealed. Lastly, we find that this article 669 has been reproduced
word for word in article 818 of the New Civil Code (Republic Act No. 386). The
implication is that the Philippine Legislature that passed this Act and approved
the New Civil Code, including the members of the Code Commission who
prepared it, are of the opinion that the provisions of article 669 of the old Civil
Code are not incompatible with those of the Code of Civil Procedure.
In the case of Testate estate of the late Bernabe Rodriguez (CA-G.R. No. 1627
-R, July 1, 1948; 46 Off. Gaz., reference to this article 669 of the Civil Code,
though indirectly. In the will involved therein, the testator Rodriguez instituted
his wife his universal heir and the latter in her separate will equally instituted
her husband Rodriguez as her universal heir; in other words they were
reciprocal beneficiaries in their respective separate wills. Opposition to the
probate of the will of Rodriguez was base on the prohibition contained in article
669 of the Civil Code. The Court of Appeals said that what the law prohibits
under said article is two or more persons making a will conjointly or in the
same instrument and not reciprocity in separate wills.
In conclusion, we believe and hold that the provision of the Code of Civil
procedure regarding wills have not repealed all the articles of the old Civil Code
on the same subject matter, and that article 669 of the Civil Code is not
incompatible or inconsistent with said provision of the Article 669 of the Civil
Code is still in force.
In view of the foregoing, the decision appealed form, is hereby affirmed, with
costs.
EN BANC
G.R. No. L-2071
September 19, 1950
Testate estate of Isabel V. Florendo, deceased. TIRSO DACANAY, petitionerappellant,

vs.
PEDRO V. FLORENDO, ET AL., oppositor-appellees.
Sotto and Sotto for appellant.
Alafriz and Alafriz for appellees.
OZAETA, J.:
This is a special proceeding commenced in the Court of First Instance of La
Union to probate a joint and reciprocal will executed by the spouses Isabel V.
Florendo and Tirso Dacanay on October 20, 1940. Isabel V. Florendo having
died, her surviving spouse Tirso Dacanay is seeking to probate said joint and
reciprocal will, which provides in substance that whoever of the spouses, joint
testators, shall survive the other, shall inherit all the properties of the latter,
with an agreement as to how the surviving spouse shall dispose of the
properties in case of his or her demise.
The relatives of the deceased Isabel V. Florendo opposed the probate of said
will on various statutory grounds.
Before hearing the evidence the trial court, after requiring and receiving from
counsel for both parties written arguments on the question of whether or not
the said joint and reciprocal will may be probated in view of article 669 of the
Civil Code, issued an order dismissing the petition for probate on the ground
that said will is null and void ab initio as having been executed in violation of
article 669 of the Civil Code. From that order the proponent of the will has
appealed.
Article 669 of the Civil Code reads as follows:

ART. 669. Two or more persons cannot make a will conjointly or in the same
instrument, either for their reciprocal benefit or for the benefit of a third
person.
We agree with appellant's view, supported by eminent commentators, that the
prohibition of article 669 of the Civil Code is directed against the execution of a
joint will, or the expression by two or more testators of their wills in a single
document and by one act, rather than against mutual or reciprocal wills, which
may be separately executed. Upon this premise, however, appellant argues
that article 669 of the Civil Code has been repealed by Act. No. 190, which he
claims provides for and regulates the extrinsic formalities of wills, contending
that whether two wills should be executed conjointly or separately is but a
matter of extrinsic formality.
The question now raised by appellant has recently been decided by this court
adversely to him in In re Will of Victor Bilbao, supra, p. 144. It appears in that
case that on October 6, 1931, the spouses Victor Bilbao and Ramona M.
Navarro executed a will conjointly, whereby they directed that "all of our
respective private properties both real and personal, and all of our conjugal
properties, and any other property belonging to either or both of us, be given
and transmitted to anyone or either of us, who may survive the other, or who
may remain the surviving spouse of the other." That will was denied probate by
the Court of First Instance of Negros Oriental on the ground that it was
prohibited by article 669 of the Civil Code. The surviving spouse as proponent
of the joint will also contended that said article of the Civil Code has been
repealed by sections 614 and 618 of the Code of Civil Procedure, Act No. 190.
In deciding that question this court, speaking through Mr. Justice Montemayor,
said:
We cannot agree to the contention of the appellant that the provisions of the
Code of Civil Procedure on wills have completely superseded Chapter I, Title III
of the Civil Code on the same subject matter, resulting in the complete repeal
of said Civil Code provisions. In the study we have made of this subject, we
have found a number of cases decided by this court wherein several articles of
the Civil Code regarding wills have not only been referred to but have also
been applied side by side with the provisions of the Code of Civil Procedure.
xxx
xxx
xxx
The provision of article 669 of the Civil Code prohibiting the execution of a will
by two or more persons conjointly or in the same instrument either for their
reciprocal benefit or for the benefit of a third person, is not unwise and is not
against public policy. The reason for this provision, especially as regards
husband and wife, is that when a will is made jointly or in the same instrument,
the spouse who is more aggressive, stronger in will or character and dominant
is liable to dictate the terms of the will for his or her own benefit or for that of
third persons whom he or she desires to favor. And, where the will is not only
joint but reciprocal, either one of the spouses who may happen to be
unscrupulous, wicked, faithless or desperate, knowing as he or she does the
terms of the will whereby the whole property of the spouses both conjugal and
paraphernal goes to the survivor, may be tempted to kill or dispose of the
other.
Considering the wisdom of the provisions of this article 669 and the fact that it
has not been repealed, at least not expressly, as well as the consideration that
its provisions are not incompatible with those of the Code of Civil Procedure on
the subject of wills, we believe and rule that said article 669 of the Civil Code is
still in force. And we are not alone in this opinion. Mr. Justice Willard as shown
by his Notes on the Civil Code, on page 48 believes that this article 669 is still
in force. Sinco and Capistrano in their work on the Civil Code, Vol. II, page 33,
favorably cite Justice Willard's opinion that this article is still in force. Judge
Camus in his book on the Civil Code does not include this article among those
he considers repealed. Lastly, we find that this article 669 has been reproduced
word for word in article 818 of the New Civil Code (Republic Act No. 386). The
implication is that the Philippine Legislature that passed this Act and approved
the New Civil Code, including the members of the Code Commission who
prepared it, are of the opinion that the provisions of article 669 of the old Civil
Code are not incompatible with those of the Code of Civil Procedure.
In view of the foregoing, the order appealed from is affirmed, with costs against
the appellant.
GONZALES vs CA
G.R. No. , 90 SCRA 183
Republic of the Philippines
SUPREME COURT
Manila
EN BANC DECISION April 30, 1979
This is a petition for review of the decision of the Court of Appeals, First
Division, 1 promulgated on May 4, 1973 in CA G.R. No. 36523-R which reversed
the decision of the Court of First Instance of Rizal dated December 15, 1964
and allowed the probate of the last will and testament of the deceased Isabel
Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago
filed a petition with the Court of First Instance of Rizal docketed as Special
Proceedings No. 3617, for the probate of a will alleged to have been executed
by the deceased Isabel Gabriel and designating therein petitioner as the
principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a
widow and without issue in the municipality of Navotas, province of Rizal her
place of residence, on June 7, 1961 at the age of eighty-five (85), having been
born in 1876. It is likewise not controverted that herein private respondent
Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the
deceased, and that private respondent, with her husband and children, lived
with the deceased at the latters residence prior an- d up to the time of her
death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog,
appears to have been executed in Manila on the 15th day of April, 1961, or
barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5)
pages, including the pages whereon the attestation clause and the
acknowledgment of the notary public were written. The signatures of the
deceased Isabel Gabriel appear at the end of the will on page four and at the
left margin of all the pages. The attestation clause, which is found on page
four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito,
ay pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel
Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na
ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika
15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang
nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon
(page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat
at bawat dahon (and on the left hand margin of each and every page), sa
harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa
harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa
ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon
ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the
signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and
opposite the same, under the heading "Tirahan", are their respective places of
residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St.,
Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left
margin of all the other pages. The WW is paged by typewritten words as
follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" and
underneath "(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic
Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic
Church, all expenses to be paid from her estate; that all her obligations, if any,
be paid; that legacies in specified amounts be given to her sister, Praxides
Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and
nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all
surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia,

Verena an surnamed Santiago. To herein private respondent Lutgarda Santiago,
who was described in the will by the testatrix as "aking mahal na pamangkin
na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak"
and named as universal heir and executor, were bequeathed all properties and
estate, real or personal already acquired, or to be acquired, in her testatrix
name, after satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner,
assailing the document purporting to be the will of the deceased on the
following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported wilt the decedent
lacked testamentary capacity due to old age and sickness; and in the second
alternative
4. That the purported WW was procured through undue and improper pressure
and influence on the part of the principal beneficiary, and/or of some other
person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962.
After trial, the court a quo rendered judgment, the summary and dispositive
portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court
finds:
1. That there is no iota of evidence to support the contentio that the purported
will of the deceased was procured through undue and improper pressure and
influence on the part of the petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the contention that at the time
of the alleged execution of the purported will, the deceased lacked
testamentary capacity due to old age and sickness;
3. That sufficient and abundant evidence warrants conclusively the fact that
the purported will of the deceased was not executed and attested as required
by law;
4. That the evidence is likewise conclusive that the document presented for
probate, Exhibit 'F' is not the purported win allegedly dictated by the deceased,
executed and signed by her, and attested by her three attesting witnesses on
April 15, 1961.
WHEREFORE, Exhibit "F", the document presented for probate as the last wig
and testament of the deceased Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent
Court, hence, the only issue decided on appeal was whether or not the will in
question was executed and attested as required by law. The Court of Appeals,
upon consideration of the evidence adduced by both parties, rendered the
decision now under review, holding that the will in question was signed and
executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of
the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the presence of the
deceased and of each other as required by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the
aforesaid decision and such motion was opposed 4 by petitioner-appellant
Lutgarda Santiago. Thereafter. parties submitted their respective Memoranda,
5 and on August 28, 1973, respondent Court, Former Special First Division, by
Resolution 6 denied the motion for reconsideration stating that:
The oppositor-appellee contends that the preponderance of evidence shows
that the supposed last wig and testament of Isabel Gabriel was not executed in
accordance with law because the same was signed on several occasions, that
the testatrix did not sign the will in the presence of all the instrumental
witnesses did not sign the will in the presence of each other.
The resolution of the factual issue raised in the motion for reconsideration
hinges on the appreciation of the evidence. We have carefully re-examined the
oral and documentary evidence of record, There is no reason to alter the
findings of fact in the decision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends
that respondent Court abused its discretion and/or acted without or in excess
of its jurisdiction in reverssing the findings of fact and conclusions of the trial
court. The Court, after deliberating on the petition but without giving due
course resolved, in the Resolution dated Oct. 11, 1973 to require the
respondents to comment thereon, which comment was filed on Nov. 14, 1973.
Upon consideration of the allegations, the issues raised and the arguments
adduced in the petition, as well as the Comment 8 of private respondent
thereon, We denied the petition by Resolution on November 26, 1973, 9 the
question raised being factual and for insufficient showing that the findings of
fact by respondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a
Motion for Reconsideration 10 which private respondent answered by way of
her Comment or Opposition 11 filed on January 15, 1974. A Reply and
Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to give
due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit
"F" was executed and attested as required by law when there was absolutely
no proof that the three instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that
the preparation and execution of the win Exhibit "F", was unexpected and
coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously
furnished with the names and residence certificates of the witnesses as to
enable him to type such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three
typewritten lines under the typewritten words "Pangalan" and "Tinitirahan"
were left blank shows beyond cavil that the three attesting witnesses were all
present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was
incredible that Isabel Gabriel could have dictated the wilt Exhibit "F , without
any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that
Matilde Orobia was not physically present when the Will Exhibit "F" was
allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the
other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue
importance to the picture takings as proof that the win was improperly
executed.
VIII. The Court of Appeals erred in holding that the grave contradictions,
evasions, and misrepresentations of witnesses (subscribing and notary)
presented by the petitioner had been explained away, and that the trial court
erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so
far departed from the accepted and usual course of judicial proceedings, as to
call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and
admitting to probate Exhibit "F", the alleged last will and testament of the
deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are
substantially factual in character and content. Hence, at the very outset, We
must again state the oft-repeated and well-established rule that in this
jurisdiction, the factual findings of the Court of Appeals are not reviewable, the
same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30,
1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69
SCRA 393), 13 and in the more recent cases of Baptisia vs. Carillo and CA
(L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of
Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of
Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the
then Justice Recto, it has been well-settled that the jurisdiction of tills Court in
cases brought to us from the Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings of fact being conclusive.
More specifically, in a decision exactly a month later, this Court, speaking
through the then Justice Laurel, it was held that the same principle is
applicable, even if the Court of Appeals was in disagreement with the lower
court as to the weight of the evidence with a consequent reversal of its
findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by
substantive evidence are not reviewable on appeal by certiorari. Said findings
of the appellate court are final and cannot be disturbed by Us particularly
because its premises are borne out by the record or based upon substantial
evidence and what is more, when such findings are correct. Assignments of
errors involving factual issues cannot be ventilated in a review of the decision
of the Court of Appeals because only legal questions may be raised. The
Supreme Court is not at liberty to alter or modify the facts as set forth in the
decision of the Court of Appeals sought to be reversed. Where the findings of
the Court of Appeals are contrary to those of the trial court, a minute scrutiny
by the Supreme Court is in order, and resort to duly-proven evidence becomes
necessary. The general rule We have thus stated above is not without some
recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed
to consider petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of
Appeals erred in holding that the document, Exhibit "F", was executed and
attested as required by law when there was absolutely no proof that the three
instrumental witnesses were credible witnesses. She argues that the require.
ment in Article 806, Civil Code, that the witnesses must be credible is an
absolute requirement which must be complied with before an alleged last will
and testament may be admitted to probate and that to be a credible witness,
there must be evidence on record that the witness has a good standing in his
community, or that he is honest and upright, or reputed to be trustworthy and
reliable. According to petitioner, unless the qualifications of the witness are
first established, his testimony may not be favorably considered. Petitioner
contends that the term "credible" is not synonymous with "competent" for a
witness may be competent under Article 820 and 821 of the Civil Code and still
not be credible as required by Article 805 of the same Code. It is further urged
that the term "credible" as used in the Civil Code should receive the same
settled and well- known meaning it has under the Naturalization Law, the latter
being a kindred legislation with the Civil Code provisions on wigs with respect
to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil
Code provides the qualifications of a witness to the execution of wills while
Article 821 sets forth the disqualification from being a witness to a win. These
Articles state:
Art. 820. Any person of sound mind and of the age of eighteen years or more,
and not blind, deaf or dumb, and able to read and write, may be a witness to
the execution of a will mentioned in article 806 of this Code. "Art. 821. The
following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or
false testimony.
Under the law, there is no mandatory requirement that the witness testify
initially or at any time during the trial as to his good standing in the
community, his reputation for trustworthythiness and reliableness, his honesty
and uprightness in order that his testimony may be believed and accepted by
the trial court. It is enough that the qualifications enumerated in Article 820 of
the Civil Code are complied with, such that the soundness of his mind can be
shown by or deduced from his answers to the questions propounded to him,
that his age (18 years or more) is shown from his appearance, testimony , or
competently proved otherwise, as well as the fact that he is not blind, deaf or
dumb and that he is able to read and write to the satisfaction of the Court, and
that he has none of the disqualifications under Article 821 of the Civil Code. We
reject petitioner's contention that it must first be established in the record the
good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because such
attributes are presumed of the witness unless the contrary is proved otherwise
by the opposing party.
We also reject as without merit petitioner's contention that the term "credible"
as used in the Civil Code should be given the same meaning it has under the
Naturalization Law where the law is mandatory that the petition for
naturalization must be supported by two character witnesses who must prove
their good standing in the community, reputation for trustworthiness and
reliableness, their honesty and uprightness. The two witnesses in a petition for
naturalization are character witnesses in that being citizens of the Philippines,
they personally know the petitioner to be a resident of the Philippines for the
period of time required by the Act and a person of good repute and morally
irreproachable and that said petitioner has in their opinion all the qualifications
necessary to become a citizen of the Philippines and is not in any way
disqualified under the provisions of the Naturalization Law (Section 7,
Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses

for they merely attest the execution of a will or testament and affirm the
formalities attendant to said execution. And We agree with the respondent that
the rulings laid down in the cases cited by petitioner concerning character
witnesses in naturalization proceedings are not applicable to instrumental
witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental
witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are
competent and credible is satisfactorily supported by the evidence as found by
the respondent Court of Appeals, which findings of fact this Tribunal is bound to
accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that
anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or
cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a
holographic will, must be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another, While the
petitioner submits that Article 820 and 821 of the New Civil Code speak of the
competency of a witness due to his qualifications under the first Article and
none of the disqualifications under the second Article, whereas Article 805
requires the attestation of three or more credible witnesses, petitioner
concludes that the term credible requires something more than just being
competent and, therefore, a witness in addition to being competent under
Articles 820 and 821 must also be a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a
witness are not synonymous terms and one may be a competent witness and
yet not a credible one. She exacerbates that there is no evidence on record to
show that the instrumental witnesses are credible in themselves, that is, that
they are of good standing in the community since one was a family driver by
profession and the second the wife of the driver, a housekeeper. It is true that
Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya,
merely a housekeeper, and that Matilde Orobia was a piano teacher to a
grandchild of the testatrix But the relation of employer and employee much
less the humble or financial position of a person do not disqualify him to be a
competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco,
et al., 100 Phil. 344; Testate Estate of Raymundo, O.G. March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more
credible witnesses mentioned in Article 805 of the Civil Code are those
mentioned in Article 820 of the same Code, this being obvious from that
portion of Article 820 which says "may be Q witness to the execution of a will
mentioned in Article 805 of this Code," and cites authorities that the word
"credible" insofar as witnesses to a will are concerned simply means "
competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme
Court held that "Granting that a will was duly executed and that it was in
existence at the time of, and not revoked before, the death of the testator, still
the provisions of the lost wig must be clearly and distinctly proved by at least
two credible witnesses. 'Credible witnesses' mean competent witnesses and
not those who testify to facts from or upon hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the
Supreme Court held that "Section 620 of the same Code of Civil Procedure
provides that any person of sound mind, and of the age of eighteen years or
more, and not blind, deaf, or dumb and able to read and write, may be a
witness to the execution of a will. This same provision is reproduced in our New
Civil Code of 1950, under Art. 820. The relation of employer and employee, or
being a relative to the beneficiary in a win, does not disqualify one to be a
witness to a will. The main qualification of a witness in the attestation of wills,
if other qualifications as to age, mental capacity and literacy are present, is
that said witness must be credible, that is to say, his testimony may be entitled
to credence. There is a long line of authorities on this point, a few of which we
may cite:
A 'credible witness is one who is not is not to testify by mental incapacity,
crime, or other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619,
226 Pix 16, 134 Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will means a
'competent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A,
837. (lbid, p. 341).
Expression 'credible witness' in relation to attestation of wins means
'competent witness that is, one competent under the law to testify to fact of
execution of will. Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of
Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills requiring that a will shall be
attested by two credible witnesses means competent; witnesses who, at the
time of attesting the will, are legally competent to testify, in a court of justice,
to the facts attested by subscribing the will, the competency being determined
as of the date of the execution of the will and not of the timr it is offered for
probate, Smith vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills, means competent
witnesses ? that is, such persons as are not legally disqualified from testifying
in courts of justice, by reason of mental incapacity, interest, or the commission
of crimes, or other cause excluding them from testifying generally, or rendering
them incompetent in respect of the particular subject matter or in the
particular suit. Hill vs. Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42.
(Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental witness

to a will is determined by the statute, that is Art. 820 and 821, Civil Code,
whereas his credibility depends On the appreciation of his testimony and arises
from the belief and conclusion of the Court that said witness is telling the truth.
Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de
Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that:
"Competency as a witness is one thing, and it is another to be a credible
witness, so credible that the Court must accept what he says. Trial courts may
allow a person to testify as a witness upon a given matter because he is
competent, but may thereafter decide whether to believe or not to believe his
testimony." In fine, We state the rule that the instrumental witnesses in Order
to be competent must be shown to have the qualifications under Article 820 of
the Civil Code and none of the disqualifications under Article 821 and for their
testimony to be credible, that is worthy of belief and entitled to credence, it is
not mandatory that evidence be first established on record that the witnesses
have a good standing in the community or that they are honest and upright or
reputed to be trustworthy and reliable, for a person is presumed to be such
unless the contrary is established otherwise. In other words, the instrumental
witnesses must be competent and their testimonies must be credible before
the court allows the probate of the will they have attested. We, therefore,
reject petitioner's position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the witnesses were
"credible witnesses that is, that they have a good standing in the community
and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of
errors, petitioner disputes the findings of fact of the respondent court in finding
that the preparation and execution of the will was expected and not
coincidental, in finding that Atty. Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type
such data into the document Exhibit "F", in holding that the fact that the three
typewritten lines under the typewritten words "pangalan" and "tinitirahan"
were left blank shows beyond cavil that the three attesting witnesses were all
present in the same occasion, in holding credible that Isabel Gabriel could have
dictated the will without note or document to Atty. Paraiso, in holding that
Matilde Orobia was physically present when the will was signed on April 15,
1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya
and Maria Gimpaya, in holding that the trial court gave undue importance to
the picture takings as proof that the will was improperly executed, and in
holding that the grave contradictions, evasions and misrepresentations of the
witnesses (subscribing and notary) presented by the petitioner had been
explained away.
Since the above errors are factual We must repeat what We have previously
laid down that the findings of fact of the appellate court are binding and
controlling which We cannot review, subject to certain exceptions which We win
consider and discuss hereinafter. We are convinced that the appellate court's
findings are sufficiently justified and supported by the evidence on record.
Thus, the alleged unnaturalness characterizing the trip of the testatrix to the
office of Atty. Paraiso and bringing all the witnesses without previous
appointment for the preparation and execution of the win and that it was
coincidental that Atty. Paraiso was available at the moment impugns the
finding of the Court of Appeals that although Atty. Paraiso admitted the visit of
Isabel Gabriel and of her companions to his office on April 15, 1961 was
unexpected as there was no prior appointment with him, but he explained that
he was available for any business transaction on that day and that Isabel
Gabriel had earlier requested him to help her prepare her will. The finding of
the appellate court is amply based on the testimony of Celso Gimpaya that he
was not only informed on the morning of the day that he witnessed the will but
that it was the third time when Isabel Gabriel told him that he was going to
witness the making of her will, as well as the testimony of Maria Gimpaya that
she was called by her husband Celso Gimpaya to proceed to Isabel Gabriel's
house which was nearby and from said house, they left in a car to the lawyer's
office, which testimonies are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya
and his wife Maria Gimpaya obtained residence certificates a few days before
Exhibit "F" was executed. Celso Gimpaya's residence certificate No. A-5114942
was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence
certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961.
The respondent Court correctly observed that there was nothing surprising in
these facts and that the securing of these residence certificates two days and
one day, respectively, before the execution of the will on April 15, 1961, far
from showing an amazing coincidence, reveals that the spouses were earlier
notified that they would be witnesses to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the
office of Atty. Paraiso was planned by the deceased, which conclusion was
correctly drawn from the testimony of the Gimpaya spouses that they started
from the Navotas residence of the deceased with a photographer and Isabel
Gabriel herself, then they proceeded by car to Matilde Orobia's house in
Philamlife, Quezon City to fetch her and from there, all the three witnesses (the
Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for about
ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to
Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous
to the day that. the will was executed on April 15, 1961, Isabel Gabriel had
requested him to help her in the execution of her will and that he told her that
if she really wanted to execute her will, she should bring with her at least the
Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty.
Paraiso) wanted a medical certificate from a physician notwithstanding the fact
that he believed her to be of sound and disposition mind. From this evidence,
the appellate court rightly concluded, thus: "It is, therefore, clear that the
presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya
and Maria Gimpaya including the photographer in the law office of Atty. Paraiso
was not coincidental as their gathering was pre-arranged by Isabel Gabriel
herself."
As to the appellate court's finding that Atty. Paraiso was not previously
furnished with the names and residence certificates of the witnesses as to
enable him to type such data into the document Exhibit ' L which the petitioner
assails as contradictory and irreconcilable with the statement of the Court that
Atty. Paraiso was handed a list (containing the names of the witnesses and
their respective residence certificates) immediately upon their arrival in the law
office by Isabel Gabriel and this was corroborated by Atty. Paraiso himself who
testified that it was only on said occasion that he received such list from Isabel
Gabriel, We cannot agree with petitioner's contention. We find no contradiction
for the, respondent Court held that on the occasion of the will making on April
15, 1961, the list was given immediately to Atty. Paraiso and that no such list
was given the lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and
residence certificates of the witnesses on a prior occasion or on the very
occasion and date in April 15, 1961 when the will was executed, is of no
moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961
following the attestation clause duly executed and signed on the same
occasion, April 15, 1961. And since Exhibit "F" is a notarial will duly
acknowledged by the testatrix and the witnesses before a notary public, the
same is a public document executed and attested through the intervention of
the notary public and as such public document is evidence of the facts in clear,
unequivocal manner therein expressed. It has in its favor the presumption of
regularity. To contradict all these, there must be evidence that is clear,
convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA
407). We find no such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that
the three typewritten lines under the typewritten words "pangalan ' and
"tinitirahan" were left blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion merits Our approval because
tills conclusion is supported and borne out by the evidence found by the
appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words
"names", "Res. Tax Cert. date issued" and place issued the only name of Isabel
Gabriel with Residence Tax certificate No. A-5113274 issued on February 24,
1961 at Navotas Rizal appears to be in typewritten form while the names,
residence tax certificate numbers, dates and places of issuance of said
certificates pertaining to the three (3) witnesses were personally handwritten
by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be
made to close relatives; and the seventh was the appointment of the appellant
Santiago as executrix of the will without bond. The technical description of the
properties in paragraph 5 of Exhibit F was not given and the numbers of the
certificates of title were only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the
properties disposed and the docket number of a special proceeding are
indicated which Atty. Paraiso candidly admitted were supplied by him,
whereupon petitioner contends that it was incredible that Isabel Gabriel could
have dictated the will Exhibit "F" without any note or document to Atty. Paraiso,
considering that Isabel Gabriel was an old and sickly woman more than eightyone years old and had been suffering from a brain injury caused by two severe
blows at her head and died of terminal cancer a few weeks after the execution
of Exhibit "F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamentary
capacity of the testatrix and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion reached by the Court of
Appeals that the testatrix dictated her will without any note or memorandum
appears to be fully supported by the following facts or evidence appearing on
record. Thus, Isabel Gabriel, despite her age, was particularly active in her
business affairs as she actively managed the affairs of the movie business
ISABELITA Theater, paying the aparatistas herself until June 4, 1961, 3 days
before her death. She was the widow of the late Eligio Naval, former Governor
of Rizal Province and acted as coadministratrix in the Intestate Estate of her
deceased husband Eligio Naval. The text of the win was in Tagalog, a dialect
known and understood by her and in the light of all the circumstances, We
agree with the respondent Court that the testatrix dictated her will without any
note or memorandum, a fact unanimously testified to by the three attesting
witnesses and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both
testimonial and documentary is, according to the respondent court,
overwhelming that Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the testatrix and the other two witnesses, Celso
Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very
clear, thus: "On the contrary, the record is replete with proof that Matilde
Orobia was physically present when the will was signed by Isabel Gabriel on
April '15, 1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya.
The trial court's conclusion that Orobia's admission that she gave piano lessons
to the child of the appellant on Wednesdays and Saturdays and that April 15,
1961 happened to be a Saturday for which reason Orobia could not have been
present to witness the will on that ? day is purely conjectural. Witness Orobia
did not admit having given piano lessons to the appellant's child every
Wednesday and Saturday without fail. It is highly probable that even if April 15,
1961 were a Saturday, she gave no piano lessons on that day for which reason
she could have witnessed the execution of the will. Orobia spoke of occasions
when she missed giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso was in the morning of
April 15, 1961 and there was nothing to preclude her from giving piano lessons
on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya that Matilde was present on April 15, 1961 and that she signed the
attestation clause to the will and on the left-hand margin of each of the pages
of the will, the documentary evidence which is the will itself, the attestation
clause and the notarial acknowledgment overwhelmingly and convincingly
prove such fact that Matilde Orobia was present on that day of April 15, 1961
and that she witnessed the will by signing her name thereon and
acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The
attestation clause which Matilde Orobia signed is the best evidence as to the
date of signing because it preserves in permanent form a recital of all the
material facts attending the execution of the will. This is the very purpose of
the attestation clause which is made for the purpose of preserving in
permanent form a record of the facts attending the execution of the will, so
that in case of failure in the memory of the subscribing witnesses, or other
casualty they may still be proved. (Thompson on Wills, 2nd ed., Sec. 132;
Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in
holding that the trial court gave undue importance to the picture-takings as
proof that the win was improperly executed, We agree with the reasoning of
the respondent court that: "Matilde Orobia's Identification of the photographer
as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr.,
is at worst a minor mistake attributable to lapse of time. The law does not
require a photographer for the execution and attestation of the will. The fact
that Miss Orobia mistakenly Identified the photographer as Cesar Mendoza
scarcely detracts from her testimony that she was present when the will was
signed because what matters here is not the photographer but the photograph
taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso
Gimpaya. " Further, the respondent Court correctly held: "The trial court gave
undue importance to the picture takings, jumping therefrom to the conclusion
that the will was improperly executed. The evidence however, heavily points to
only one occasion of the execution of the will on April 15, 1961 which was
witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These
witnesses were quite emphatic and positive when they spoke of this occasion.
Hence, their Identification of some photographs wherein they all appeared
along with Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picturetaking was disclosed at the cross examination of Celso Gimpaya. But this was
explained by Atty. Paraiso as a reenactment of the first incident upon the
insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was
admittedly no longer present was wholly unnecessary if not pointless. What
was important was that the will was duly executed and witnessed on the first
occasion on April 15, 1961 , " and We agree with the Court's rationalization in
conformity with logic, law and jurisprudence which do not require picturetaking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and
misrepresentations of witnesses in their respective testimonies before the trial
court. On the other hand, the respondent Court of Appeals held that said
contradictions, evasions and misrepresentations had been explained away.
Such discrepancies as in the description of the typewriter used by Atty. Paraiso
which he described as "elite" which to him meant big letters which are of the
type in which the will was typewritten but which was Identified by witness Jolly
Bugarin of the N.B.I. as pica the mistake in mentioning the name of the
photographer by Matilde Orobia to be Cesar Mendoza when actually it was
Benjamin Cifra, Jr.? these are indeed unimportant details which could have
been affected by the lapse of time and the treachery of human memory such
that by themselves would not alter the probative value of their testimonies on
the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every person win be Identical and
coinciding with each other with regard to details of an incident and that
witnesses are not expected to remember all details. Human experience teach
us "that contradictions of witnesses generally occur in the details of certain
incidents, after a long series of questionings, and far from being an evidence of
falsehood constitute a demonstration of good faith. In as much as not all those
who witness an incident are impressed in like manner, it is but natural that in
relating their impressions, they should not agree in the minor details; hence
the contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not
have been disturbed by the respondent appellate court because the trial court
was in a better position to weigh and evaluate the evidence presented in the
course of the trial. As a general rule, petitioner is correct but it is subject to
well-established exceptions. The right of the Court of Appeals to review, alter
and reverse the findings of the trial court where the appellate court, in
reviewing the evidence has found that facts and circumstances of weight and
influence have been ignored and overlooked and the significance of which have
been misinterpreted by the trial court, cannot be disputed. Findings of facts
made by trial courts particularly when they are based on conflicting evidence
whose evaluation hinges on questions of credibility of contending witnesses
hes peculiarly within the province of trial courts and generally, the appellate
court should not interfere with the same. In the instant case, however, the
Court of Appeals found that the trial court had overlooked and misinterpreted
the facts and circumstances established in the record. Whereas the appellate
court said that "Nothing in the record supports the trial court's unbelief that
Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;"
that the trial court's conclusion that Matilde Orobia could not have witnessed
anybody signing the alleged will or that she could not have witnessed Celso
Gimpaya and Maria Gimpaya sign the same or that she witnessed only the
deceased signing it, is a conclusion based not on facts but on inferences; that
the trial court gave undue importance to the picture-takings, jumping
therefrom to the conclusion that the will was improperly executed and that
there is nothing in the entire record to support the conclusion of the court a
quo that the will signing occasion was a mere coincidence and that Isabel
Gabriel made an appointment only with Matilde Orobia to witness the signing
of her will, then it becomes the duty of the appellate court to reverse findings
of fact of the trial court in the exercise of its appellate jurisdiction over the
lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that
the judgment of the Court of Appeals is conclusive as to the facts and cannot
be reviewed by the Supreme Court. Again We agree with the petitioner that
among the exceptions are: (1) when the conclusion is a finding grounded
entirely on speculations, surmises or conjectures; (2) when the inference is
manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of
discretion; (4) when the presence of each other as required by law. "
Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel,
together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and
a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the
Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel
Gabriel obtained a medical certificate from one Dr. Chikiamko which she gave
to Atty. Paraiso upon arriving at the latter's office and told the lawyer that she
wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate
what she wanted to be written in the will and the attorney wrote down the
dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her;
that Atty. Paraiso read back to her what he wrote as dictated and she affirmed
their correctness; the lawyer then typed the will and after finishing the
document, he read it to her and she told him that it was alright; that thereafter,
Isabel Gabriel signed her name at the end of the will in the presence of the
three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at
the left-hand margin of each and every page of the document in the presence
also of the said three witnesses; that thereafter Matilde Orobia attested the will
by signing her name at the end of the attestation clause and at the left-hand
margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel
and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso
Gimpaya signed also the will at the bottom of the attestation clause and at the
left-hand margin of the other pages of the document in the presence of Isabel
Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit,
signing her name at the foot of the attestation clause and at the left-hand
margin of every page in the presence of Isabel Gabriel, Matilde Orobia and
Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94,
Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the
execution and attestation of the will, a photographer took pictures, one Exhibit
"G", depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya,
Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the
will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he
had earlier advised Isabel Gabriel to bring with her at least the Mayor and a
Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand
the Identities of the three attesting witnesses until the latter showed up at his
law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which was
not controverted that he wrote down in his own hand the date appearing on
page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and
ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible
that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or
document to Atty. Paraiso as against the contention of petitioner that it was
incredible. This ruling of the respondent court is fully supported by the
evidence on record as stated in the decision under review, thus: "Nothing in
the record supports the trial court's unbelief that Isabel Gabriel dictated her
will without any note or document to Atty. Paraiso. On the contrary, all the
three attesting witnesses uniformly testified that Isabel Gabriel dictated her will
to Atty. Paraiso and that other than the piece of paper that she handed to said
lawyer she had no note or document. This fact jibes with the evidence ? which
the trial court itself believed was unshaken ? that Isabel Gabriel was of sound
disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but
quite simple. The first was Isabel Gabriel's wish to be interred according to
Catholic rites the second was a general directive to pay her debts if any; the
third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago
and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her
13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the
amount for each legatee the fifth was the institution of the petitioner-appellant,
Lutgarda Santiago as the principal heir mentioning in general terms seven (7)
types of properties; the sixth disposed of the remainder of her estate which she
willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such
properties to anyone except in extreme situations in which judgment is based
on a misapprehension of facts; (5) when the findings of fact are conflicting, (6)
when the Court of Appeals, in making its findings, went beyond the issues of
the case and the same is contrary to the admissions of both appellant and
appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs.
Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of
Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not
fall within any of the exceptions enumerated above. We likewise hold that the
findings of fact of the respondent appellate court are fully supported by the
evidence on record. The conclusions are fully sustained by substantial
evidence. We find no abuse of discretion and We discern no misapprehension
of facts. The respondent Court's findings of fact are not conflicting. Hence, the
well-established rule that the decision of the Court of Appeals and its findings
of fact are binding and conclusive and should not be disturbed by this Tribunal
and it must be applied in the case at bar in its full force and effect, without
qualification or reservation. The above holding simply synthesize the
resolutions we have heretofore made in respect ' to petitioner's previous
assignments of error and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us
as We find the respondent Court acted properly and correctly and has not
departed from the accepted and usual course of judicial proceedings as to call
for the exercise of the power of supervision by the Supreme Court, and as We
find that the Court of Appeals did not err in reversing the decision of the trial
court and admitting to probate Exhibit "F", the last will and testament of the
deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and
evaluation of the evidence on record is unassailable that: "From the welter of
evidence presented, we are convinced that the will in question was executed
on April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya signing and witnessing the same in the the will on a table with Isabel
Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty.
Paraiso, after finishing the notarial act, then delivered the original to Isabel
Gabriel and retained the other copies for his file and notarial register. A few
days following the signing of the will, Isabel Gabriel, Celso Gimpaya and
another photographer arrived at the office of Atty. Paraiso and told the lawyer
that she wanted another picture taken because the first picture did not turn out
good. The lawyer told her that this cannot be done because the will was
already signed but Isabel Gabriel insisted that a picture be taken, so a
simulated signing was performed during which incident Matilde Orobia was not
present.
Petitioner's exacerbation centers on the supposed incredibility of the
testimonies of the witnesses for the proponent of the will, their alleged
evasions, inconsistencies and contradictions. But in the case at bar, the three
instrumental witnesses who constitute the best evidence of the will making
have testified in favor of the probate of the will. So has the lawyer who
prepared it, one learned in the law and long in the practice thereof, who
thereafter notarized it. All of them are disinterested witnesses who stand to
receive no benefit from the testament. The signatures of the witnesses and the
testatrix have been identified on the will and there is no claim whatsoever and
by anyone, much less the petitioner, that they were not genuine. In the last
and final analysis, the herein conflict is factual and we go back to the rule that
the Supreme Court cannot review and revise the findings of facts of the
respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is
hereby AFFIRMED, with costs against the petitioner. SO ORDERED.
SECOND DIVISION
G.R. No. 76464
First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the
disputed will, which was opposed by the private respondents presently, Panfilo
and Felino both surnamed Maloto. The trial court dismissed the petition on April
30, 1970. Complaining against the dismissal, again, the petitioners came to
this Court on a petition for review by certiorari. 2 Acting on the said petition,
we set aside the trial court's order and directed it to proceed to hear the case
on the merits. The trial court, after hearing, found the will to have already been
revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The
petitioners appealed the trial court's decision to the Intermediate Appellate
Court which, on June 7, 1985, affirmed the order. The petitioners' motion for
reconsideration of the adverse decision proved to be of no avail, hence, this
petition.
For a better understanding of the controversy, a factual account would be a
great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and
nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and
the private respondents Panfilo Maloto and Felino Maloto. Believing that the
deceased did not leave behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate proceeding for the settlement
of their aunt's estate. The case was instituted in the then Court of First Instance
of Iloilo and was docketed as Special Proceeding No. 1736. However, while the
case was still in progress, or to be exact on February 1, 1964, the parties
Aldina, Constancio, Panfilo, and Felino executed an agreement of
extrajudicial settlement of Adriana's estate. The agreement provided for the
division of the estate into four equal parts among the parties. The Malotos then
presented the extrajudicial settlement agreement to the trial court for approval
which the court did on March 21, 1964. That should have signalled the end of
the controversy, but, unfortunately, it had not.
February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,

CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH
OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two
other cases directly related to the present one and involving the same parties
had already been decided by us in the past. In G.R. No. L-30479, 1 which was a
petition for certiorari and mandamus instituted by the petitioners herein, we
dismissed the petition ruling that the more appropriate remedy of the
petitioners is a separate proceeding for the probate of the will in question.
Pursuant to the said ruling, the petitioners commenced in the then Court of
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former
associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a
document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated
January 3,1940, and purporting to be the last will and testament of Adriana.
Atty. Palma claimed to have found the testament, the original copy, while he
was going through some materials inside the cabinet drawer formerly used by
Atty. Hervas. The document was submitted to the office of the clerk of the
Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and
Felino are still named as heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable shares in the estate of Adriana
than what they received by virtue of the agreement of extrajudicial settlement
they had earlier signed. The will likewise gives devises and legacies to other
parties, among them being the petitioners Asilo de Molo, the Roman Catholic
Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees
and legatees named in the will, filed in Special Proceeding No. 1736 a motion
for reconsideration and annulment of the proceedings therein and for the
allowance of the will When the trial court denied their motion, the petitioner
came to us by way of a petition for certiorari and mandamus assailing the
orders of the trial court . 3 As we stated earlier, we dismissed that petition and
advised that a separate proceeding for the probate of the alleged will would be
the appropriate vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on
whether or not the document or papers allegedly burned by the househelp of
Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix,
was indeed the will, contradicted itself and found that the will had been
revoked. The respondent court stated that the presence of animus revocandi in
the destruction of the will had, nevertheless, been sufficiently proven. The
appellate court based its finding on the facts that the document was not in the
two safes in Adriana's residence, by the testatrix going to the residence of Atty.
Hervas to retrieve a copy of the will left in the latter's possession, and, her
seeking the services of Atty. Palma in order to have a new will drawn up. For
reasons shortly to be explained, we do not view such facts, even considered
collectively, as sufficient bases for the conclusion that Adriana Maloto's will had
been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due
execution of the will. The heart of the case lies on the issue as to whether or
not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in
Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1)
By implication of law; or
(2)
By some will, codicil, or other writing executed as provided in case of
wills: or
(3)
By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other person in his
presence, and by his express direction. If burned, torn cancelled, or obliterated
by some other person, without the express direction of the testator, the will
may still be established, and the estate distributed in accordance therewith, if
its contents, and due execution, and the fact of its unauthorized destruction,
cancellation, or obliteration are established according to the Rules of Court.
(Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case,
does not per se constitute an effective revocation, unless the destruction is
coupled with animus revocandi on the part of the testator. It is not imperative
that the physical destruction be done by the testator himself. It may be
performed by another person but under the express direction and in the
presence of the testator. Of course, it goes without saying that the document
destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would not suffice.
"Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his
presence and under his express direction. There is paucity of evidence to show
compliance with these requirements. For one, the document or papers burned
by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at
all, much less the will of Adriana Maloto. For another, the burning was not
proven to have been done under the express direction of Adriana. And then,
the burning was not in her presence. Both witnesses, Guadalupe and Eladio,
were one in stating that they were the only ones present at the place where
the stove (presumably in the kitchen) was located in which the papers
proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the
private respondents as oppositors in the trial court, concluded that the
testimony of the two witnesses who testified in favor of the will's revocation
appear "inconclusive." We share the same view. Nowhere in the records before
us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio
Itchon, both illiterates, were unequivocably positive that the document burned
was indeed Adriana's will. Guadalupe, we think, believed that the papers she
destroyed was the will only because, according to her, Adriana told her so.
Eladio, on the other hand, obtained his information that the burned document
was the will because Guadalupe told him so, thus, his testimony on this point is
double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest
that a purported win is not denied legalization on dubious grounds. Otherwise,
the very institution of testamentary succession will be shaken to its very
foundations ...." 4
The private respondents in their bid for the dismissal of the present action for
probate instituted by the petitioners argue that the same is already barred by
res adjudicata. They claim that this bar was brought about by the petitioners'
failure to appeal timely from the order dated November 16, 1968 of the trial
court in the intestate proceeding (Special Proceeding No. 1736) denying their
(petitioners') motion to reopen the case, and their prayer to annul the previous
proceedings therein and to allow the last will and testament of the late Adriana
Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy.
For a judgment to be a bar to a subsequent case, the following requisites must
concur: (1) the presence of a final former judgment; (2) the former judgment
was rendered by a court having jurisdiction over the subject matter and the
parties; (3) the former judgment is a judgment on the merits; and (4) there is,
between the first and the second action, Identity of parties, of subject matter,
and of cause of action. 5 We do not find here the presence of all the
enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as
the probate of Adriana Maloto's will is concerned. The decision of the trial court
in Special Proceeding No. 1736, although final, involved only the intestate
settlement of the estate of Adriana. As such, that judgment could not in any
manner be construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a judgment on the
merits of the action for probate. This is understandably so because the trial
court, in the intestate proceeding, was without jurisdiction to rule on the
probate of the contested will . 6 After all, an action for probate, as it implies, is
founded on the presence of a will and with the objective of proving its due
execution and validity, something which can not be properly done in an
intestate settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is likewise no Identity
between the cause of action in intestate proceeding and that in an action for
probate. Be that as it may, it would be remembered that it was precisely
because of our ruling in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana Maloto's will. Hence, on
these grounds alone, the position of the private respondents on this score can
not be sustained.
One last note. The private respondents point out that revocation could be
inferred from the fact that "(a) major and substantial bulk of the properties
mentioned in the will had been disposed of: while an insignificant portion of the
properties remained at the time of death (of the testatrix); and, furthermore,
more valuable properties have been acquired after the execution of the will on
January 3,1940." 7 Suffice it to state here that as these additional matters
raised by the private respondents are extraneous to this special proceeding,
they could only be appropriately taken up after the will has been duly probated
and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the
Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the
respondent Court of Appeals, and a new one ENTERED for the allowance of
Adriana Maloto's last will and testament. Costs against the private
respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
EN BANC
G.R. No. L-26317
January 29, 1927
Estate of Miguel Mamuyac, deceased.

FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will and
testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in the
municipality of Agoo of the Province of La Union. It appears from the record
that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed
a last will and testament (Exhibit A). In the month of January, 1922, the said
Francisco Gago presented a petition in the Court of First Instance of the
Province of La Union for the probation of that will. The probation of the same
was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and
Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing all
of the parties the petition for the probation of said will was denied by the
Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground
that the deceased had on the 16th day of April, 1919, executed a new will and
testament.
On the 21st day of February, 1925, the present action was commenced. Its
purpose was to secure the probation of the said will of the 16th day of April,
1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging
(a) that the said will is a copy of the second will and testament executed by the
said Miguel Mamuyac; (b) that the same had been cancelled and revoked
during the lifetime of Miguel Mamuyac and (c) that the said will was not the
last will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge,
after hearing the respective parties, denied the probation of said will of April
16, 1919, upon the ground that the same had been cancelled and revoked in
the year 1920. Judge Teodoro, after examining the evidence adduced, found
that the following facts had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the possession
of the deceased testator Miguel Mamuyac, who revoked it before his death as
per testimony of witness Jose Fenoy, who typed the will of the testator on April
16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original
Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac, who
assured Carlos Bejar that inasmuch as he had sold him a house and the land
where the house was built, he had to cancel it (the will of 1919), executing
thereby a new testament. Narcisa Gago in a way corroborates the testimony of
Jose Fenoy, admitting that the will executed by the deceased (Miguel
Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The
opponents have successfully established the fact that father Miguel Mamuyac
had executed in 1920 another will. The same Narcisa Gago, the sister of the
deceased, who was living in the house with him, when cross-examined by
attorney for the opponents, testified that the original Exhibit A could not be
found. For the foregoing consideration and for the reason that the original of
Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the
court disallows the probate of Exhibit A for the applicant." From that order the
petitioner appealed.
the original has been lost and was not cancelled or destroyed by the testator.
(Borromeo vs. Casquijo, G.R. No. L-26063.)1
The appellant contends that the lower court committed an error in not finding
from the evidence that the will in question had been executed with all the
formalities required by the law; that the same had been revoked and cancelled
in 1920 before his death; that the said will was a mere carbon copy and that
the oppositors were not estopped from alleging that fact.
DECISION
With reference to the said cancellation, it may be stated that there is positive
proof, not denied, which was accepted by the lower court, that will in question
had been cancelled in 1920. The law does not require any evidence of the
revocation or cancellation of a will to be preserved. It therefore becomes
difficult at times to prove the revocation or cancellation of wills. The fact that
such cancellation or revocation has taken place must either remain unproved
of be inferred from evidence showing that after due search the original will
cannot be found. Where a will which cannot be found is shown to have been in
the possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator
had ready access to the will and it cannot be found after his death. It will not
be presumed that such will has been destroyed by any other person without
the knowledge or authority of the testator. The force of the presumption of
cancellation or revocation by the testator, while varying greatly, being weak or
strong according to the circumstances, is never conclusive, but may be
overcome by proof that the will was not destroyed by the testator with intent to
revoke it.
In view of the fat that the original will of 1919 could not be found after the
death of the testator Miguel Mamuyac and in view of the positive proof that the
same had been cancelled, we are forced to the conclusion that the conclusions
of the lower court are in accordance with the weight of the evidence. In a
proceeding to probate a will the burden of proofs is upon the proponent clearly
to establish not only its execution but its existence. Having proved its
execution by the proponents, the burden is on the contestant to show that it
has been revoked. In a great majority of instances in which wills are destroyed
for the purpose of revoking them there is no witness to the act of cancellation
or destruction and all evidence of its cancellation perishes with the testator.
Copies of wills should be admitted by the courts with great caution. When it is
proven, however, by proper testimony that a will was executed in duplicate and
each copy was executed with all the formalities and requirements of the law,
then the duplicate may be admitted in evidence when it is made to appear that
After a careful examination of the entire record, we are fully persuaded that the
will presented for probate had been cancelled by the testator in 1920.
Therefore the judgment appealed from is hereby affirmed. And without any
finding as to costs, it is so ordered.
EN BANC
February 11, 1918

G.R. No. L-11823
CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO,
petitioners-appellants,
vs.
MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-appellants.
Guillermo Lualhati for appellants. Perfecto Gabriel for appellees.
Araullo, J.:
On September 20, 1915, attorney Perfecto Gabriel presented in the Court of
First Instance of the city of Manila for allowance as the will of Simeona F. Naval,
who died in said city two days previously, a document executed by her of
February 13, 1915, and in which he was appointed executor. The case was
recorded as No. 13386 and, after hearing the petition for allowance filed by
said executor, it was denied on the ground that said document was not duly
executed by the deceased as her last will and testament, inasmuch as she did
not sign it in the presence of three witness and the two witnesses did not sign
it in the presence of each other. Thereafter the nieces and legatees of the
same deceased filed in the same court for allowance as her will, another
document executed by her on October 31, 1914, and, consequently, the case
was registered under another number, which was No. 13579. The petition for
allowance was opposed by Monica Naval, Rosa Naval, and Cristina Naval on the
ground that the will, the allowance of which is asked, could not be allowed,
because of the existence of another will of subsequent date, executed during
her lifetime by the same Simeona F. Naval, and because said will has been
revoked by another executed subsequently by her during her lifetime, and
further, because sail will has not been executed with the formalities required
by existing laws. Trial having taken place, at which evidence was adduced, the
court on February 8, 1916, issued an order, admitting said second document
and ordering its allowance as the last will and testament o said deceased. From
said order the opponents appealed to this court and transmitted to us the
corresponding declarations. Tow of the opponents, that is, Rosa and Cristina
Naval, assigned, as errors committed by the court, the following:
1.
The finding of the court that the will of October 31, 1914, has not
been revoked by that of February 13, 1915;
2.
The act of the court in permitting the petitioner to institute and
proceed with the proceedings relative to the last case for the allowance of the
will, No. 13579, notwithstanding that proceedings had already been had in the
other case No. 13386 and final judgment rendered therein; and
3.
The act of the court in denying the motion for continuance of the trial
on the allowance of the will of October 31, 1914, which motion was presented
for the sole purpose of introducing evidence to show the falsity of the signature
appearing in said will and submitting said signature to the Bureau of Science
for analysis.
The other opponent, Monica Naval, assigned, besides the first two errors
already mentioned, the finding of the court that the disallowance of the will of
said deceased, dated February 13, 1915, on the ground that is was not
executed in such form that it could transmit real and personal property,
according to section 618 of the Code of Civil Procedure, also had the effect of
annulling the revocatory clause in said will.
From the evidence it appears, as we have already stated, that the trial court
declared that the first document presented by the executor of the deceased,
Simeona F. Naval, as a will executed by her on February 13, 1915, and which
was the subject-matter of case No. 13386 of said court, could not be allowed,
on the ground that it was not executed with the requisites and formalities
prescribed by law. Article 739 of the Civil Code provides that a former will is by
operation of law revoked by another valid subsequent will, if the testator does
not state in the later will his desire that the former should subsist wholly or
partly. In harmony with this provision of substantive law, we find section 623 of
the Code of Civil Procedure, which provides that no will shall be revoked,
except by implication of law, otherwise than by some will, codicil, or other
writing executed as provided in case of wills.
Therefore, according to the legal provisions, in order that the will of February
13, 1915, that is, the first document presented as the will of the deceased
Simeona F. Naval, could have the effect of revoking that which was presented
afterwards by the petitioners as executed by the same deceased on October
31, 1914, that is, on a date previous to the execution of the first, it was
necessary and indispensable that the later will, that is, that first presented for
allowance, should be perfect or valid, that it, executed as provided by lay in
case of wills.
It also appears from the record that the opponents themselves maintained that
said later will, that is, that of February 13, 1915, was not perfect, or executed
as provided by law in case of wills, and the Court of First Instance of Manila has
so held in disallowing said documents as the will of the deceased. So that it
very evident that the second will presented, that is, that of October 31, 1914,
was not and could not have been revoked by the first, and the court was not in
error in so holding in the order appealed from. We deem it unnecessary to add

a single word mere or cite well-known doctrines and opinions of jurists in
support of what has already been stated.
As to the second error assigned by the opponents, we believe it sufficient to
refer to what the court below stated in the judgment appealed from. It is as
follows:
The court finds no incongruency in the presentation of a prior will when
another will of subsequent date has been disallowed. Disregarding the fact that
the petitioners in this case were not those who presented the will in No. 13386,
in which the petition was presented by the same D. Perfecto Gabriel as
executor, it is proper to take into account that the object of a petition for
allowance is to ask for an order declaring that a will has been executed in
accordance with the requisites and formalities required by law. This is a
question for the court to decide and is out of the control of the party who
presents the will. The allowance or disallowance of a will by a competent court
depends upon whether the evidence adduced at the trial shows or does not
show that the formalities required by law have been complied with, and this
cannot be determined in advance, as a general rule, by the person who
presents the testament. for he has not always concurred in or seen the
execution of the will.
If, therefore, the personal who presents a will and asks that if be allowed does
not secure its allowance, and he has in his possession another will, or has
information that another exists, he does not contradict himself by asking for
the allowance of the will of earlier date merely because the later will was
declared invalid by the proper court. If in this case there is any who adopts a
contradictory position, it is the respondent himself, inasmuch as in case No.
13386 he alleged, as a ground for the disallowance of the will then presented,
that it was not executed in accordance with the law, and now he maintains the
contrary, for he claims that said will revoked that which is now presented.
With respect to the third error, it is beyond doubt that the court did not commit
it, for it appears that when the examination of the witness, Cristina Samson,
was finished and the court told Attorney Lualhati, counsel for the respondents,
to continue adducing his evidence, he said he had no more proof, although he
added that he would ask the court to grant him permission to send the will of
1914 to the Bureau of Science, which petition was objected to by the attorney
for the proponents and denied by the court. Immediately thereafter the
attorney for the opponents asked for the continuance of the trial, which was
also denied by the court, after objection was made by the proponents. The
attorney for the opponents excepted to said ruling.
Therefore, the petition of said attorney for the remission of said will to the
Bureau of Science, in the terms in which it was made to the court, after ha had
stated that he had no more evidence to present, signified that he left it to the
discretion of the court to grant it or not. Furthermore, no exception was taken
to the order to the order denying this motion, and although the attorney for the
opponents excepted to the order denying the motion for continuance of the
trial, such exception was completely useless and ineffective for the purpose of
alleging before this court that the trial court erred in that respect, for said
resolution, being one of those left to the discretion of the court in the exercise
of it functions, according to section 141 of the Code of Civil Procedure, it could
not be the subject of an exception, unless the court, in denying said motion,
abused its discretional power and thereby prejudiced the essential rights of the
respondents, which is not the case here.
The error which, in addition to the first two already mentioned, has been
assigned by the opponent and appellant, Monica Naval, and refers, according
to her, to the court's action in declaring that the disallowance of the will of the
deceased Simeona F. Naval, dated February 13, 1915, for the reason that it was
not executed in such manner and from that it could transmit real and personal
property, according to the provisions of section 618 of the Code of Civil
Procedure, also had the effect of annulling the revocatory clause of said will.
First of all, it is not true that the court made such statement in the terms given
in said assignment of error, that is, it is not true that the court declared that,
because said will was not executed in the form required by law in order that it
may transmit real and personal property, according to the provisions of section
618, the disallowance of said will also had the effect of annulling the
revocatory clause therein contained. In the order appealed from there is no
declaration or conclusion made in these terms. The court did not say that the
annulment of the revocatory clause in said will was the effect or consequence
of the fact that it was not allowed on the ground that it was not executed in the
form required by law in order that it may transmit real and personal property.
Referring to the construction, given by the respondent to sections 618 and 623
of the Code of Civil Procedure, to the effect that a subsequent will may revoke
a previous will, although the later will has not been allowed by the competent
court, it being sufficient that the intention of the testator to revoke the
previous will should be clearly expressed, and that, while the requisite of
allowance is necessary in order that it may transmit property from one person
to another, it is not necessary in order that it might procedure other effects, for
example, the effect of a revocatory clause, or a clause of aknowledgment of a
child, - what the court declared, we repeat, was that although the revocation of
a will should have been effected, not by means of another will or codicil, but by
mans of a document, as authorized by said section 623, which document
should have the requisites and conditions fixed in section 618, the presentation
of the document to the court was necessary in order that the latter might allow
it, by declaring that it was executed with the formalities required by law for the
execution of a will, and finally concluding that, just as to, is to be proved that
the requisites of section 618 have been complied with in order that a will may
be of value through its allowance, so without such allowance the revocatory
clause like the other provisions of the will, has no value or effect except to
show extraneous matters, as, for example, the acknowledgment of natural
children, of some debt or obligation. In such case, the document could produce
effect, but not as will, but simply as a written admission made by the person
executing it. And It is beyond doubt that the revocatory clause contained in a
document, like the present, which contains provisions proper of a will, as those
relating to legacies and distribution of the properties of the testator after his
death as well as the appointment of executors, is not matter extraneous to the
will, but merely a part thereof, intimately connected with it as well as with the
will or wills, the revocation of which is declared in said clause; in short, the
desire of the testator declared in the revocatory clause is related to the desire
of the same testator expressed in the provisions of the testament in which said
clause is found and to that which he might have expressed in the testaments
which he may have previously executed. There is such relation between the
revocatory clause and the will which contains it, that if the will does not
produce legal effects, because it has not been executed in accordance with the
provisions of the law, neither would the revocatory clause therein produce legal
effects. And if, in the present case, the so-called will of the deceased, Simeona
F. Naval, dated February 13, 1915, was not duly executed by her as her last will
and testament, ad declared by the court in its decision of November 19, 1915,
in case No. 13386, for which reason its allowance was denied, neither may it be
maintained that the revocatory clause contained in said will is the expression
of the last will of said deceased. The disallowance of the ill, therefore, produced
the effect of annulling the revocatory clause, not exactly because said will was
not executed in such from that it could transmit real and personal property, as
inaccurately alleged by the appellant, Monica Naval, to be the court's finding,
upon which said assignment of error is based, but because it was proved that
said will was not executed or signed with the formalities and requisites required
by section 618 of the Code of Civil Procedure, a cause which also produces the
nullity of the same will, according to section 634 of said law; and of course
what is invalid in law can produce no effect whatever.
If the instrument propounded as a revocation be in form a will, it must be
perfect as such, and be subscribed and attested as is required by the statute.
An instrument intended to be a will, but filing of its effect as such on account of
some imperfection in its structure or for want of due execution, cannot be set
up for the purpose of revoking a former will. (40 Cyc., p. 1177, and cases cited
therein.)
A subsequent will containing a clause revoking an earlier will must, as a
general rule, be admitted to probate before the clause of revocation can have
any effect, and the same kind, quality, and method of proof is required for the
establishment of the subsequent will as was required for the establishment of
the former will. (40 Cyc., p. 1178, and cases cited therein.)
But admitting that the will said to have been executed by the deceased
Simeona F. Naval on February 13, 1915, notwithstanding its inefficacy to
transmit property for the reason that it has not been executed, according to
the provisions of said section 618 of the Code of Civil Procedure, should be
considered as executed by her in order to express her desire, appearing in one
of its clauses, to revoke and annul any previous will of hers, as stated in clause
13, this being the argument adduced by the appellant, Monica naval, in
support of said assignment of error - neither could it be maintained that, the
allowance of said will having been denied by the court on November 11, 1915,
said revocatory clause subsists and the intention expressed by the testratrix
therein is valid and legally effective, for the simple reason that, in order that a
will may be revoked by a document, it is necessary, according to the
conclusive provisions of section 623 of said procedural law, that such
documents be executed according to the provisions relating to will in section
618, and the will in question, or, according to the respondent, the so-called
document, was not executed according to the provisions of said section,
according to the express finding of the trial court in its order of November 11,
1915, acquiesced in by the opponent herself, and which is now final and
executory. Therefore, the disallowance of said will and the declaration that it
was not executed according to the provisions of law as to wills, produced the
effect of annulling said revocatory clause.
In support of the argument advanced in her brief said appellant, Monica Naval,
cites the declaration made by the Supreme Court of Massachusetts in Wallis vs.
Wallis (114 Mass., 510, 512)m which, according to the appellant herself, was in
the following terms:
If it be shown that a later will was duly executed and attested, containing a
clause expressly revoking former will nothing else appearing as to its contents,
it is nevertheless good as a revocation, but it can only be made available by
setting it up in opposition to the probate of the earlier will.
In the decision of said case the finding referred to be by the appellant appears
not to have been made by the Supreme Court of Massachusetts.
The syllabus of said decision says:
When a will revoking a former will is in existence, it must be established in the
Probate Court; but when it has been lost or destroyed, and its contents cannot
be sufficiently proved to admit it to probate, it may nevertheless be availed of
as a revocation in opposition to the probate of the will revoked by it.:
And in the body of the decision there is a declaration, to which the appellant
must have desired to refer in her brief, which declaration says:
If it can be proved that a later will was duly executed, attested and subscribed,
and that it contained a clause expressly revoking all former wills, but evidence
of the rest of its contents cannot be obtained, it is nevertheless a good
revocation; and it can be made available only by allowing it to be set up in
opposition to the probate of the earlier will,. . .
The facts of the case in which this decision was rendered are different from the
facts of the case at bar. That was a case concerning a will filed by one of the
children of the testatrix, Mary Wallis, as her last will, to the allowance of which
another son objected, alleging that said will had been revoked by another
executed by the same deceased subsequent to the will that was filed, and that
it had been fraudulently destroyed or taken by his brother, the proponent and
his wife, or by one of them, in order to deprive him of the rights conferred upon
him by said will. Therefore, the will said to have been subsequently executed
by the testatrix and in which, according to the oppositor, the clause revocatory
of the former will appeared, was not presented by said oppositor, while the
previous will was, in the contrary, filed for allowance by the son of the
testratrix, who appeared to be favored therein, said oppositor having alleged
that the subsequent will, that is, that containing the revocatory clause, had
been drawn, subscribed and executed in accordance with the provisions of the
law, a fact which he was ready to prove just as he was ready to prove that it
had been destroyed or suppressed by the proponent, his brother and his wife,
or one of them. In the case at bar, the subsequent will containing the
revocatory clause of the previous will executed by the deceased Simeona F.
Naval was presented to the court for allowance and it was disallowed - a fact
which gave opportunity to the legatees of said deceased to present a previous
will executed by her on October 31, 1914, and said two wills having been
successively presented, evidence as to them was also successively adduced for
their allowance by the court.
Therefore, the declaration made by the Supreme Court of Massachusetts in
Wallis vs. Wallis (supra), to the effect that a subsequent will containing a
revocatory clause of previous wills, constitutes a valid revocation and may be
used in objecting to the allowance of the previous will, even when it is not
possible to obtain proof of the remainder of the contents of said subsequent
will, refers to the case in which the latter had been taken away, destroyed or
suppressed, and it was impossible to present it for allowance, but requires for
that purpose that it be proved that said subsequent will has been executed,
attested, and subscribed in due form and that it contained, furthermore, that
revocatory clause. This is what said declaration and, in relation thereto, also
what the syllabus of the decision thereof clearly says. The court, through Chief
Justice Gray, in giving its opinion, thus began by saying:
By our law, no will can be revoked by any subsequent instrument, other than a
"will, codicil or writing, signed, attested and subscribed in the manner provided
for making a will." And when an instrument of revocation is in existence and
capable of being propounded for probate, its validity should be tried by a direct
proceeding instituted for the purpose in the Probate Court. (Loughton vs.
Atkins, 1 Pick., 535.)
It results, therefore, that while perfect parity does not exist between the case
decided by the Supreme Court of Massachusetts, to which the appellant Monica
Naval refers, and that which is not before us, it is wholly unquestionable that,
whether the case deals with a subsequent will revocatory of a previous will,
which may possibly be presented to a probate court for allowance, or of a
subsequent will, also revocatory of a previous will, which could not be
presented for allowance, because it has been taken or hidding, or mislaid - in
order that such will may constitute a valid revocation and be utilized in the
second case, although the remaining provisions may not be proven, in
opposition to the allowance of the previous will, it is necessary to prove that it
was executed, attested, and subscribed in due form, and, of course, also that it
contained a clause expressly revoking the previous will, or, what is the same
thing, that said subsequent will has been executed according to the provisions
relating to wills, as expressed in section 623 of the procedural law in force.
There can be no doubt whatever that this applies when the revocation had
been made to appear in a writing or document susceptible of presentation for
allowance, like the so-called will of the deceased Simeona F. Naval, dated
February 13, 1915, and considered by said respondent and appellant as a mere
document of revocation, for, as already seen in said decision invoked by her,
the requisite as to signing, attesting, and subscribing in the form, required by
law for the execution of wills in order that it may revoke a previous will, is also
required in a will as well as in a codicil, or in a writing, and in referring to a
document of revocation, it is also expressed that its validity should be proved
in a direct proceeding, instituted for the purpose in a probate court. In the case
at bar, the document, executed by the deceased, Simeona F. Naval, as her last
will and testament, dated February 13, 1915, has been presented for
allowance; it validity has been proved by means of said procedure in the Court
of Probate of Manila, and that court denied its allowance, on the ground that
the document in question had not been duly executed by the deceased, as her
last will and testament, because she did not sign in the presence of three
witnesses, and two of these witnesses did not sign in the presence of each
other, or what is the same thing, that said document has not be attested and
subscribed in the manner established by law for the execution of will, or, in
other words, as provided by law in case of wills, as stated by section 623 of
said procedural law, and this resolution was acquiesced in, as already stated,
by the respondents in this case, and is, therefore, final and executory.
In conclusions, the doctrine laid down in the decision of the Supreme Court of
Massachusetts, invoked by the appellant, Monica Naval, is in conformity with
the provision of said section 623 of our procedural law and article 739 of the
Civil Code, and the will executed by the deceased Simeona F. Naval on October
31, 1914, not having been revoked, according to these provisions, by the will
presented and alleged as executed by the same deceased subsequently on
February 13, 1915, the allowance of which was denied by the Court of First
Instance of Manila, the court below was not in error in ordering the allowance
of said will, that is, of that of October 31, 1914, as the last will and testament
of said deceased.
Wherefore, the order appealed from is affirmed, with the costs of this instance
against the appellants. So ordered.
EN BANC
G.R. No. L-2538
September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA.
DE MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting
to probate the last will and testament of the deceased Mariano Molo y Legaspi
executed on August 17, 1918. The oppositors-appellants brought the case on
appeal to this Court for the reason that the value of the properties involved
exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay,
province of Rizal, without leaving any forced heir either in the descending or
ascending line. He was survived, however, by his wife, the herein petitioner
Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositorsappellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the
legitimate children of Candido Molo y Legaspi, deceased brother of the testator.
Mariano Molo y Legaspi left two wills, one executed on August 17, 1918,
(Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will
executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First
Instance of Rizal a petition, which was docketed as special proceeding No.
8022 seeking the probate of the will executed by the deceased on June 20,
1939. There being no opposition, the will was probated. However, upon petition
filed by the herein oppositors, the order of the court admitting the will to
probate was set aside and the case was reopened. After hearing, at which both
parties presented their evidence, the court rendered decision denying the
probate of said will on the ground that the petitioner failed to prove that the
same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on
February 24, 1944, filed another petition for the probate of the will executed by
the deceased on August 17, 1918, which was docketed as special proceeding
No. 56, in the same court. Again, the same oppositors filed an opposition to the
petition based on three grounds: (1) that petitioner is now estopped from
seeking the probate of the will of 1918; (2) that said will has not been executed
in the manner required by law and (3) that the will has been subsequently
revoked. But before the second petition could be heard, the battle for liberation
came and the records of the case were destroyed. Consequently, a petition for
reconstitution was filed, but the same was found to be impossible because
neither petitioner nor oppositors could produce the copies required for its
reconstitution. As a result, petitioner filed a new petition on September 14,
1946, similar to the one destroyed, to which the oppositors filed an opposition
based on the same grounds as those contained in their former opposition.
Then, the case was set for trial, and on May 28, 1948, the court issued an order
admitting the will to probate already stated in the early part of this decision.
From this order the oppositors appealed assigning six errors, to wit.
Claro M. Recto and Serafin C. Dizon for appellants.

I.
The probate court erred in not holding that the present petitioner
voluntarily and deliberately frustrated the probate of the will dated June 20,
1939, in special proceeding No. 8022, in order to enable her to obtain the
probate of another alleged will of Molo dated 191.
II.
The court a quo erred in not holding that the petitioner is now
estopped from seeking the probate of Molo's alleged will of 1918.
III.
The lower court erred in not holding that petitioner herein has come to
court with "unclean hands" and as such is not entitled to relief.
IV.
The probate court erred in not holding that Molo's alleged will of
August 17, 1918 was not executed in the manner required by law.
V.
The probate court erred in not holding that the alleged will of 1918
was deliberately revoked by Molo himself.
VI.
The lower court erred in not holding that Molo's will of 1918 was
subsequently revoked by the decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the
probate court erred in not holding that the petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in order to
enable her to obtain the probate of the will executed by the deceased on
August 17, 1918, pointing out certain facts and circumstances with their
opinion indicate that petitioner connived with the witness Canuto Perez in an
effort to defeat and frustrate the probate of the 1939 will because of her
knowledge that said will intrinsically defective in that "the one and only
testamentory disposition thereof was a "disposicion captatoria". These
circumstances, counsel for the appellants contend, constitute a series of steps
deliberately taken by petitioner with a view to insuring the realization of her
plan of securing the probate of the 1918 will which she believed would better
safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection
with special proceedings No. 8022, now closed and terminated, are vigorously
met by counsel for petitioner who contends that to raise them in these
proceedings which are entirely new and distinct and completely independent
from the other is improper and unfair as they find no support whatsoever in
any evidence submitted by the parties in this case. They are merely based on
the presumptions and conjectures not supported by any proof. For this reason,
counsel, contends, the lower court was justified in disregarding them and in
passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify
this contention. There is indeed no evidence which may justify the insinuation
that petitioner had deliberately intended to frustrate the probate of the 1939
will of the deceased to enable her to seek the probate of another will other
than a mere conjecture drawn from the apparently unexpected testimony of
Canuto Perez that he went out of the room to answer an urgent call of nature
when Artemio Reyes was signing the will and the failure of petitioner later to
impeach the character of said witness in spite of the opportunity given her by
the court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she informed
the court that she was unable to impeach the character of her witness Canuto
Perez because of her inability to find witnesses who may impeach him, and this
explanation stands uncontradicted. Whether this explanation is satisfactory or
not, it is not now, for us to determine. It is an incident that comes within the
province of the former case. The failure of petitioner to present the testimony
of Artemio Reyes at the hearing has also been explained, and it appears that
petitioner has filed because his whereabouts could not be found. Whether this
is true or not is also for this Court to determine. It is likewise within the
province and function of the court in the former case. And the unfairness of this
imputation becomes more glaring when we stock of the developments that had
taken place in these proceedings which show in bold relief the true nature of
the conduct, behavior and character of the petitioner so bitterly assailed and
held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed
on June 20, 1939, was filed on February 7, 1941, by the petitioner. There being
no opposition, the will was probated. Subsequently, however, upon petition of
the herein oppositors, the order of the court admitting said will to probate was
set aside, over the vigorous opposition of the herein petitioner, and the case
was reopened. The reopening was ordered because of the strong opposition of
the oppositors who contended that he will had not been executed as required
by law. After the evidence of both parties had been presented, the oppositors
filed an extensive memorandum wherein they reiterated their view that the will
should be denied probate. And on the strenght of this opposition, the court
disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would
make the testamentary disposition in her favor invalid and ineffective, because
it is a "disposicion captatoria", which knowledge she may easily acquire
through consultation with a lawyer, there was no need her to go through the
order of filing the petition for the probate of the will. She could accomplish her
desire by merely suppressing the will or tearing or destroying it, and then take
steps leading to the probate of the will executed in 1918. But for her
conscience was clear and bade her to take the only proper step possible under
the circumstances, which is to institute the necessary proceedings for the
probate of the 1939 will. This she did and the will was admitted to probate. But
then the unexpected happened. Over her vigorous opposition, the herein
appellants filed a petition for reopening, and over her vigorous objection, the
same was granted and the case was reopened. Her motion for reconsideration
was denied. Is it her fault that the case was reopened? Is it her fault that the
order admitting the will to probate was set aside? That was a contingency
which petitioner never expected. Had appellants not filed their opposition to
the probate of the will and had they limited their objection to the intrinsic
validity of said will, their plan to defeat the will and secure the intestacy of the
deceased would have perhaps been accomplished. But they failed in their
strategy. If said will was denied probate it is due to their own effort. It is now
unfair to impute bad faith petitioner simply because she exerted every effort to
protect her own interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not
commit the second and third errors imputed to it by the counsel for appellants.
Indeed, petitioner cannot be considered guilty or estoppel which would prevent
her from seeking the probate of the 1918 will simply because of her effort to
obtain the allowance of the 1939 will has failed considering that in both the
1918 and 1939 wills she was in by her husband as his universal heir. Nor can
she be charged with bad faith far having done so because of her desire to
prevent the intestacy of her husband. She cannot be blamed being zealous in
protecting her interest.
The next contention of appellants refers to the revocatory clause contained in
1939 will of the deceased which was denied probate. They contend that,
notwithstanding the disallowance of said will, the revocatory clause is valid and
still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down
in the case of Samson vs. Naval, (41 Phil., 838). He contends that the facts
involved in that case are on all fours with the facts of this case. Hence, the
doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in
the Samson case we are indeed impressed by their striking similarity with the
facts of this case. We do not need to recite here what those facts are; it is
enough to point out that they contain many points and circumstances in
common. No reason, therefore, is seen by the doctrine laid down in that case
(which we quote hereunder) should not apply and control the present case.
A subsequent will, containing a clause revoking a previous will, having been
disallowed, for the reason that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure as to the making of
wills, cannot produce the effect of annulling the previous will, inasmuch as said
revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while
they do not disagree with the soundness of the ruling laid down in the Samson
case, there is reason to abandon said ruling because it is archaic or antiquated
and runs counter to the modern trend prevailing in American jurisprudence.
They maintain that said ruling is no longer controlling but merely represents
the point of view of the minority and should, therefore, be abandoned, more so
if we consider the fact that section 623 of our Code of Civil Procedure, which
governs the revocation of wills, is of American origin and as such should follow
the prevailing trend of the majority view in the United States. A long line of
authorities is cited in support of this contention. And these authorities hold the
view, that "an express revocation is immediately effective upon the execution
of the subsequent will, and does not require that it first undergo the formality
of a probate proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for
oppositors, and that view appears to be in controlling the states where the
decisions had been promulgated, however, we are reluctant to fall in line with
the assertion that is now the prevailing view in the United States. In the search
we have made of American authorities on the subject, we found ourselves in a
pool of conflicting opinions perhaps because of the peculiar provisions
contained in the statutes adopted by each State in the subject of revocation of
wills. But the impression we gathered from a review and the study of the
pertinent authorities is that the doctrine laid down in the Samson case is still a
good law. On page 328 of the American Jurisprudence Vol. 57, which is a
revision Published in 1948, we found the following passages which in our
opinion truly reflect the present trend of American jurisprudence on this matter
affecting the revocation of wills:
SEC. 471.
Observance of Formalities in Execution of Instrument.
Ordinarily, statutes which permit the revocation of a will by another writing
provide that to be effective as a revocation, the writing must be executed with
the same formalities which are required to be observed in the execution of a
will. Accordingly, where, under the statutes, attestation is necessary to the
making of a valid will, an unattested non testamentary writing is not effective
to revoke a prior will. It has been held that a writing fails as a revoking
instrument where it is not executed with the formalities requisite for the
execution of a will, even though it is inscribed on the will itself, although it may
effect a revocation by cancellation or obliteration of the words of the will. A
testator cannot reserve to himself the power to modify a will by a written
instrument subsequently prepared but not executed in the manner required for
a will.
SEC, 472.
Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil.
A will which is invalid because of the incapacity of the testator, or of undue
influence can have no effect whatever as a revoking will. Moreover, a will is not
revoked by the unexecuted draft of a later one. Nor is a will revoked by a
defectively executed will or codicil, even though the latter contains a clause
expressly revoking the former will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a testamentary instrument is
sufficient to revoke a will, for the simple reason that there is no revoking will.
Similarly where the statute provides that a will may be revoked by a
subsequent will or other writing executed with the same formalities as are
required in the execution of wills, a defectively executed will does not revoke a
prior will, since it cannot be said that there is a writing which complies with the
statute. Moreover, a will or codicil which, on account of the manner in which it
is executed, is sufficient to pass only personally does not affect dispositions of
real estate made by a former will, even though it may expressly purport to do
so. The intent of the testator to revoke is immaterial, if he has not complied
with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in
1939. On page 1400, Volume 123, there appear many authorities on the
"application of rules where second will is invalid", among which a typical one is
the following:
It is universally agreed that where the second will is invalid on account of not
being executed in accordance with the provisions of the statute, or where the
testator who has not sufficient mental capacity to make a will or the will is
procured through undue influence, or the such, in other words, where the
second will is really no will, it does not revoke the first will or affect it in any
manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d),
498.
These treaties cannot be mistaken. They uphold the view on which the ruling in
the Samson case is predicated. They reflect the opinion that this ruling is sound
and good and for this reason, we see no justification for abondoning it as now
suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides
that a will may be some will, codicil, or other writing executed as proved in
case of wills" but it cannot be said that the 1939 will should be regarded, not
as a will within the meaning of said word, but as "other writing executed as
provided in the case of wills", simply because it was denied probate. And even
if it be regarded as any other writing within the meaning of said clause, there is
authority for holding that unless said writing is admitted to probate, it cannot
have the effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory
clause, said will of 1918 cannot still be given effect because of the presumption
that it was deliberately revoked by the testator himself. The oppositors contend
that the testator, after executing the 1939 will, and with full knowledge of the
recovatory clause contained said will, himself deliberately destroyed the
original of the 1918 will, and for that reason the will submitted by petitioner for
probate in these proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately
destroyed the original of the 1918 will because of his knowledge of the
revocatory clause contained in the will he executed in 1939. The only evidence
we have is that when the first will was executed in 1918, Juan Salcedo, who
prepared it, gave the original and copies to the testator himself and apparently
they remained in his possession until he executed his second will in 1939. And
when the 1939 will was denied probate on November 29, 1943, and petitioner
was asked by her attorney to look for another will, she found the duplicate
copy (Exhibit A) among the papers or files of the testator. She did not find the
original.
If it can be inferred that the testator deliberately destroyed the 1918 will
because of his knowledge of the revocatory clause of the 1939 will, and it is
true that he gave a duplicate copy thereof to his wife, the herein petitioner, the
most logical step for the testator to take is to recall said duplicate copy in order
that it may likewise be destroyed. But this was not done as shown by the fact
that said duplicate copy remained in the possession of petitioner. It is possible
that because of the long lapse of twenty-one (21) years since the first will was
executed, the original of the will had been misplaced or lost, and forgetting
that there was a copy, the testator deemed it wise to execute another will
containing exactly the same testamentary dispositions. Whatever may be the
conclusion we may draw from this chain of circumstances, the stubborn fact is
that there is no direct evidence of voluntary or deliberate destruction of the
first will by the testator. This matter cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily
destroyed by the testator after the execution of the second will, which revoked
the first, could there be any doubt, under this theory, that said earlier will was
destroyed by the testator in the honest belief that it was no longer necessary
because he had expressly revoked it in his will of 1939? In other words, can we
not say that the destruction of the earlier will was but the necessary
consequence of the testator's belief that the revocatory clause contained in the
subsequent will was valid and the latter would be given effect? If such is the
case, then it is our opinion that the earlier will can still be admitted to probate
under the principle of "dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and is usually
applied where the testator cancels or destroys a will or executes an instrument
intended to revoke a will with a present intention to make a new testamentary
disposition as a substitute for the old, and the new disposition is not made or, if
made, fails of effect for same reason. The doctrine is n limited to the existence
of some other document, however, and has been applied where a will was
destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the
making of another will so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the efficacy of a new
disposition intended to be substituted, the revocation will be conditional and
dependent upon the efficacy of the new disposition; and if, for any reason, the
new will intended to be made as a substitute is inoperative, the revocation fails
and the original will remains in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a new
testamentary disposition upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive conditions, and hence
prevents the revocation of the original will. But a mere intent to make at some
time a will in the place of that destroyed will not render the destruction
conditional. It must appear that the revocation is dependent upon the valid
execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the
original will by the testator could be presumed from the failure of the petitioner
to produce it in court, such destruction cannot have the effect of defeating the
prior will of 1918 because of the fact that it is founded on the mistaken belief
that the will of 1939 has been validly executed and would be given due effect.
The theory on which this principle is predicated is that the testator did not
intend to die intestate. And this intention is clearly manifest when he executed
two wills on two different occasion and instituted his wife as his universal heir.
There can therefore be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the
evidence to prove the due execution of the will.
The will in question was attested, as required by law, by three witnesses,
Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses
died before the commencement of the present proceedings. So the only
instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will.
However, petitioner presented not only the testimony of Cuenca but placed on
the witness stand Juan Salcedo, the notary public who prepared and notarized
the will upon the express desire and instruction of the testator, The testimony
of these witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed by their
readiness and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the
appellants.
But according to the statute governing the subject in this jurisdiction, the
destruction of a will animo revocandi constitutes, in itself, a sufficient
revocation. (Sec. 623, Code of Civil Procedure.)
From the evidence submitted in this case, it appears that the testator, shortly
after the execution of the first will in question, asked that the same be returned
to him. The instrument was returned to the testator who ordered his servant to
tear the document. This was done in his presence and before a nurse who
testified to this effect. After some time, the testator, being asked by Dr.
Cornelio Mapa about the will, said that it had been destroyed.
The intention of revoking the will is manifest from the established fact that the
testator was anxious to withdraw or change the provisions he had made in his
first will. This fact is disclosed by the testator's own statements to the
witnesses Canto and the Mother Superior of the Hospital where he was
confined.
The original will herein presented for probate having been destroyed with
animo revocandi, cannot now be probated as the will and last testament of
Jesus de Leon.
Judgement is affirmed with costs against the petitioner. So ordered.
EN BANC
May 31, 1922
G.R. No. 17714
In the mater of the estate of Jesus de Leon.
IGNACIA DIAZ, petitioner-appellant,
vs.
ANA DE LEON, opponent-appellee.
Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Treas for appellee.
ROMUALDEZ, J.:
The only question raised in this case is whether or to the will executed by Jesus
de Leon, now, was revoked by him.
The petitioner denies such revocation, while the contestant affirms the same
by alleging that the testator revoked his will by destroying it, and by executing
another will expressly revoking the former.
We find that the second will Exhibit 1 executed by the deceased is not cloth
with all the necessary requisites to constitute a sufficient revocation.

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G.R. No.

SALUD TEODORO VDA. DE PEREZ, petitioner,

shall be presumed that he predeceased me, and my estate shall be

that nowhere in Section 2 of Rule 77 is there a mention of notice being given to

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inexpensive, just and speedy determination of the proceedings" (Records, pp.

IN RE: IN THE MATTER OF THE

G.R. No. 169144

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On February 4, 1916, Emil H. Johnson, a native of Sweden and a naturalized

Besides, petitioners stand is fraught with impractically. If the instituted

Hartigan & Welch for applicant and appellant.

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February 29, 1988

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Delgado & Flores for appellee.

Claro M. Recto and Serafin C. Dizon for appellants.

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