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G.R. No. 82027. March 29, 1990.

ROMARICO G. VITUG, petitioner, vs. THE HONORABLE COURT OF


APPEALS and ROWENA FAUSTINO-CORONA, respondents.

Civil Law; Contracts; Conveyance in question is not one of mortis causa which should be
embodied in a will; Definition of a Will.The conveyance in question is not, first of all, one
of mortis causa, which should be embodied in a will. A will has been defined as a personal,
solemn, revocable and free act by which a capacitated person disposes of his property and
rights and declares or complies with duties to take effect after his death. In other words,
the bequest or device must pertain to the testator. In this case, the monies subject of
savings account No. 35342-038 were in the nature of conjugal funds.
Same; Same; Same; Same; Survivorship agreements are permitted by the Civil Code.
The validity of the contract seems debatable by reason of its survivor-take-all feature, but
in reality, that contract imposed a mere obligation with a term, the term being death. Such
agreements are permitted by the Civil Code.
Same; Same; Same; Same; Same; Although the survivorship agreement is per se not
contrary to law its operation or effect may be violative of the Law.But although the
survivorship agreement is per se not contrary to law its operation or effect may be violative
of the law. For instance, if it be shown in a given case that such agreement is a mere cloak
to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the
legitime of a forced heir, it may be assailed and annulled upon such grounds. No such vice
has been imputed and established against the agreement involved in this case.
Same; Same; Same; Same; Same; Same; No demonstration here that survivorship
agreement had been executed for unlawful purposes or as held by the respondent court in
order to frustrate our laws on wills, donations and conjugal partnership.There is no
demonstration here that the survivorship agreement had been executed for such unlawful
purposes, or, as held by the respondent court, in order to frustrate our laws on wills,
donations, and conjugal partnership.

PETITION to review the decision and resolution of the Court of Appeals.


The facts are stated in the opinion of the Court.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court involving the probate
of the two wills of the late Dolores Luchangco Vitug, who died in New York, U.S.A.,
on November 10, 1980, naming private respondent Rowena Faustino-Corona
1

executrix. In our said decision, we upheld the appointment of Nenita Alonte as cospecial administrator of Mrs. Vitugs estate with her (Mrs. Vitugs) widower,
petitioner Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from
the probate court to sell certain shares of stock and real properties belonging to the
estate to cover allegedly his advances to the estate in the sum of P667,731.66, plus
interests, which he claimed were personal funds. As found by the Court of
Appeals, the alleged advances consisted of P58,147.40 spent for the payment of
estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as increment
thereto. According to Mr. Vitug, he withdrew the sums of P518,834.27 and
P90,749.99 from savings account No. 35342-038 of the Bank of America, Makati,
Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that
the same funds withdrawn from savings account No. 35342-038 were conjugal
partnership properties and part of the estate, and hence, there was allegedly no
ground for reimbursement. She also sought his ouster for failure to include the
sums in question for inventory and for concealment of funds belonging to the
estate.
Vitug insists that the said funds are his exclusive property having acquired the
same through a survivorship agreement executed with his late wife and the bank on
June 19, 1970. The agreement provides:
2

We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST
AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now
or hereafter deposited by us or any or either of us with the BANK in our joint savings
current account shall be the property of all or both of us and shall be payable to and
collectible or withdrawable by either or any of us during our lifetime, and after the death of
either or any of us shall belong to and be the sole property of the survivor or survivors, and
shall be payable to and collectible or withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the receipt or check of either, any
or all of us during our lifetime, or the receipt or check of the survivor or survivors, for any
payment or withdrawal made for our above-mentioned account shall be valid and sufficient
release and discharge of the BANK for such payment or withdrawal.
5

The trial court upheld the validity of this agreement and granted the motion to sell
some of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the
personal funds of Romarico Vitug in the total sum of P667,731.66 x x x.
On the other hand, the Court of Appeals, in the petition for certiorari filed by the
herein private respondent, held that the above-quoted survivorship agreement
6

constitutes a conveyance mortis causa which did not comply with the formalities of
a valid will as prescribed by Article 805 of the Civil Code, and secondly, assuming
that it is a mere donation inter vivos, it is a prohibited donation under the
provisions of Article 133 of the Civil Code.
The dispositive portion of the decision of the Court of Appeals states:
8

WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition)
is hereby set aside insofar as it granted private respondents motion to sell certain
properties of the estate of Dolores L. Vitug for reimbursement of his alleged advances to the
estate, but the same order is sustained in all other respects. In addition, respondent Judge
is directed to include provisionally the deposits in Savings Account No. 35342-038 with the
Bank of America, Makati, in the inventory of actual properties possessed by the spouses at
the time of the decedents death. With costs against private respondent.
10

In his petition, Vitug, the surviving spouse, assails the appellate courts ruling on
the strength of our decisions inRivera v. Peoples Bank and Trust Co. and Macam
v. Gatmaitan in which we sustained the validity of survivorship agreements and
considering them as aleatory contracts.
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis causa, which should
be embodied in a will. A will has been defined as a personal, solemn, revocable and
free act by which a capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his death. In other words, the
bequest or device must pertain to the testator. In this case, the monies subject of
savings account No. 35342-038 were in the nature of conjugal funds. In the case
relied on, Rivera v. Peoples Bank and Trust Co., we rejected claims that a
survivorship agreement purports to deliver one partys separate properties in favor
of the other, but simply, their joint holdings:
11

12

13

14

15

16

xxx
xxx
xxx
x x x Such conclusion is evidently predicated on the assumption that Stephenson was the
exclusive owner of the funds deposited in the bank, which assumption was in turn based on
the facts (1) that the account was originally opened in the name of Stephenson alone and (2)
that Ana Rivera served only as housemaid of the deceased. But it not infrequently
happens that a person deposits money in the bank in the name of another; and in the
instant case it also appears that Ana Rivera served her master for about nineteen years
without actually receiving her salary from him. The fact that subsequently Stephenson
transferred the account to the name of himself and/or Ana Rivera and executed with the
latter the survivorship agreement in question although there was no relation of kinship
between them but only that of master and servant, nullifies the assumption that

Stephenson was the exclusive owner of the bank account. In the absence, then, of clear proof
to the contrary, we must give full faith and credit to the certificate of deposit which recites
in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera; that they
were joint (and several) owners thereof; and that either of them could withdraw any part or
the whole of said account during the lifetime of both, and the balance, if any, upon the death
of either, belonged to the survivor.
xxx
xxx
xxx
17

In Macam v. Gatmaitan, it was held:


18

xxx
xxx
xxx
This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to
article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give
or do something as an equivalent for that which the other party is to give or do in case of
the occurrence of an event which is uncertain or will happen at an indeterminate time. As
already stated, Leonarda was the owner of the house and Juana of the Buick automobile
and most of the furniture. By virtue of Exhibit C, Juana would become the owner of the
house in case Leonarda died first, and Leonarda would become the owner of the automobile
and the furniture if Juana were to die first. In this manner Leonarda and Juana
reciprocally assigned their respective property to one another conditioned upon who might
die first, the time of death determining the event upon which the acquisition of such right
by the one or the other depended. This contract, as any other contract, is binding upon the
parties thereto. Inasmuch as Leonarda had died before Juana, the latter thereupon
acquired the ownership of the house, in the same manner as Leonarda would have acquired
the ownership of the automobile and of the furniture if Juana had died first.
xxx
xxx
xxx
19

There is no showing that the funds exclusively belonged to one party, and hence it
must be presumed to be conjugal, having been acquired during the existence of the
marital relations.
Neither is the survivorship agreement a donation inter vivos, for obvious reasons,
because it was to take effect after the death of one party. Secondly, it is not a
donation between the spouses because it involved no conveyance of a spouses own
properties to the other.
It is also our opinion that the agreement involves no modification of the conjugal
partnership, as held by the Court of Appeals, by mere stipulation, and that it is
no cloak to circumvent the law on conjugal property relations. Certainly, the
spouses are not prohibited by law to invest conjugal property, say, by way of a joint
and several bank account, more commonly denominated in banking parlance as an
and/or account. In the case at bar, when the spouses Vitug opened savings account
20

21

23

22

No. 35342-038, they merely put what rightfully belonged to them in a moneymaking venture. They did not dispose of it in favor of the other, which would have
arguably been sanctionable as a prohibited donation. And since the funds were
conjugal, it can not be said that one spouse could have pressured the other in
placing his or her deposits in the money pool.
The validity of the contract seems debatable by reason of its survivor-take-all
feature, but in reality, that contract imposed a mere obligation with a term, the
term being death. Such agreements are permitted by the Civil Code.
Under Article 2010 of the Code:
24

ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves
to give or to do something in consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to occur at an indeterminate time.

Under the aforequoted provision, the fulfillment of an aleatory contract depends on


either the happening of an event which is (1) uncertain, (2) which is to occur at an
indeterminate time. A survivorship agreement, the sale of a sweepstake ticket, a
transaction stipulating on the value of currency, and insurance have been held to
fall under the first category, while a contract for life annuity or pension under
Article 2021, et sequentia, has been categorized under the second. In either case,
the element of risk is present. In the case at bar, the risk was the death of one party
and survivorship of the other.
However, as we have warned:
25

xxx
xxx
xxx
But although the survivorship agreement is per se not contrary to law its operation or
effect may be violative of the law. For instance, if it be shown in a given case that such
agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of
creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon
such grounds. No such vice has been imputed and established against the agreement
involved in this case.
xxx
xxx
xxx
26

There is no demonstration here that the survivorship agreement had been executed
for such unlawful purposes, or, as held by the respondent court, in order to frustrate
our laws on wills, donations, and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased
her husband, the latter has acquired upon her death a vested right over the
amounts under savings account No. 35342-038 of the Bank of America. Insofar as
the respondent court ordered their inclusion in the inventory of assets left by Mrs.

Vitug, we hold that the court was in error. Being the separate property of petitioner,
it forms no more part of the estate of the deceased.
WHEREFORE, the decision of the respondent appellate court, dated June 29,
1987, and its resolution, dated February 9, 1988, are SET ASIDE.
No costs.
SO ORDERED.
Melencio-Herrera (Chairman), Paras, Padilla andRegalado JJ., concur.
Decision and resolution set aside.

G.R. No. 174489.April 11, 2012.*


ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L.
MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA,
JR., and RAFAEL TITCO, petitioners, vs. LORENZO LAXA, respondent.
Civil Law; Wills; Testamentary Succession; Due execution of the will or its extrinsic validity
pertains to whether the testator, being of sound mind, freely executed the will in accordance with the
formalities prescribed by law.Due execution of the will or its extrinsic validity pertains to whether the
testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by
law. These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit: Art. 805.
Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or
by the testators 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. The testator or the person requested by him to write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and
all the pages shall be numbered correlatively in letters placed on the upper part of each page. The
attestation shall state the number of pages used upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause
is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be

acknowledged before a notary public by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the Office of the Clerk of Court.
Same; Same; Same; The state of being forgetful does not necessarily make a person mentally
unsound so as to render him unfit to execute a Will.We agree with the position of the CA that the state
of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to
execute a Will. Forgetfulness is not equivalent to being of unsound mind. Besides, Article 799 of the New
Civil Code states: Art. 799. To be of sound mind, it is not necessary that the testator be in full possession
of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease,
injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know
the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.
Same; Same; Same; A purported will is not to be denied legalization on dubious grounds.
Otherwise, the very institution of testamentary succession will be shaken to its foundation, for even if a
will has been duly executed in fact, whether it will be probated would have to depend largely on the
attitude of those interested in the estate of the deceased.It is worth stressing that bare arguments, no
matter how forceful, if not based on concrete and substantial evidence cannot suffice to move the Court to
uphold said allegations. Furthermore, a purported will is not [to be] denied legalization on dubious
grounds. Otherwise, the very institution of testamentary succession will be shaken to its foundation, for
even if a will has been duly executed in fact, whether x x x it will be probated would have to depend
largely on the attitude of those interested in [the estate of the deceased].
Same; Same; Same; The very existence of the Will is in itself prima facie proof that the supposed
testatrix has willed that her estate be distributed in the manner therein provided, and it is incumbent upon
the state that, if legally tenable, such desire be given full effect independent of the attitude of the parties
affected thereby.It bears stressing that [i]rrespective x x x of the posture of any of the parties as
regards the authenticity and due execution of the will x x x in question, it is the mandate of the law that it
is the evidence before the court and/or [evidence that] ought to be before it that is controlling. The very
existence of [the Will] is in itselfprima facie proof that the supposed [testatrix] has willed that [her] estate
be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable,
such desire be given full effect independent of the attitude of the parties affected thereby. This, coupled
with Lorenzos established relationship with Paciencia, the evidence and the testimonies of disinterested
witnesses, as opposed to the total lack of evidence presented by petitioners apart from their self-serving
testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its allowance for
probate.

PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Filemon Al. Manlutac for petitioners.
Viray, Rongcal, Beltran, Yumul & Viray Law Officesfor respondent.
DEL CASTILLO,J.:
It is incumbent upon those who oppose the probate of a will to clearly establish that the
decedent was not of sound and disposing mind at the time of the execution of said will.
Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute his
estate in the manner provided in his will so long as it is legally tenable.1
Before us is a Petition for Review on Certiorari2 of the June 15, 2006 Decision3 of the Court
of Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision 4 of
the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G1186. The assailed CA Decision granted the petition for probate of the notarial will of Paciencia
Regala (Paciencia), to wit:

WHEREFORE, premises considered, finding the appeal to be impressed with merit, the decision in
SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and a new one entered
GRANTING the petition for the probate of the will of PACIENCIA REGALA.
SO ORDERED.
5

Also assailed herein is the August 31, 2006 CA Resolution 6 which denied the Motion for
Reconsideration thereto.
Petitioners call us to reverse the CAs assailed Decision and instead affirm the Decision of the
RTC which disallowed the notarial will of Paciencia.
Factual Antecedents
Paciencia was a 78 year old spinster when she made her last will and testament entitled Tauli
Nang Bilin o Testamento Miss Paciencia Regala7 (Will) in the Pampango dialect on September
13, 1981. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin),
was read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental
witnesses that the document is her last will and testament. She thereafter affixed her signature at
the end of the said document on page 38 and then on the left margin of pages 1, 2 and 4 thereof.9
The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia
(Francisco) and Faustino R. Mercado (Faustino). The three attested to the Wills due execution
by affixing their signatures below its attestation clause 10 and on the left margin of pages 1, 2 and
4 thereof,11 in the presence of Paciencia and of one another and of Judge Limpin who acted as
notary public.
Childless and without any brothers or sisters, Paciencia bequeathed all her properties to
respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna
Lorella Laxa and Katherine Ross Laxa, thus:
x x x x
FourthIn consideration of their valuable services to me since then up to the present by the spouses
LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all my
properties enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA and CORAZON F. LAXA
and their children, LUNA LORELLA LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa
and Corazon F. Laxa both of legal age, Filipinos, presently residing at Barrio Sta. Monica, [Sasmuan],
Pampanga and their children, LUNA LORELLA and KATHERINE ROSS LAXA, who are still not of
legal age and living with their parents who would decide to bequeath since they are the children of the
spouses;
xxxx
[Sixth]Should other properties of mine may be discovered aside from the properties mentioned in
this last will and testament, I am also bequeathing and giving the same to the spouses Lorenzo R. Laxa
and Corazon F. Laxa and their two children and I also command them to offer masses yearly for the
repose of my soul and that of D[]a Nicomeda Regala, Epifania Regala and their spouses and with respect
to the fishpond situated at San Antonio, I likewise command to fulfill the wishes of D[]a Nicomeda
Regala in accordance with her testament as stated in my testament. x x x
12

The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencias
nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated
Paciencia as his own mother.13 Paciencia lived with Lorenzos family in Sasmuan, Pampanga and
it was she who raised and cared for Lorenzo since his birth. Six days after the execution of the
Will or on September 19, 1981, Paciencia left for the United States of America (USA). There,
she resided with Lorenzo and his family until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.

More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a
petition14 with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the
issuance of Letters of Administration in his favor, docketed as Special Proceedings No. G-1186.
There being no opposition to the petition after its due publication, the RTC issued an Order on
June 13, 200015allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra.
Limpin testified that she was one of the instrumental witnesses in the execution of the last will
and testament of Paciencia on September 13, 1981. 16 The Will was executed in her fathers
(Judge Limpin) home office, in her presence and of two other witnesses, Francisco and
Faustino.17 Dra. Limpin positively identified the Will and her signatures on all its four
pages.18 She likewise positively identified the signature of her father appearing
thereon.19 Questioned by the prosecutor regarding Judge Limpins present mental fitness, Dra.
Limpin testified that her father had a stroke in 1991 and had to undergo brain surgery.20 The judge
can walk but can no longer talk and remember her name. Because of this, Dra. Limpin stated that
her father can no longer testify in court.21
The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an
opposition22 to Lorenzos petition. Antonio averred that the properties subject of Paciencias Will
belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had no
right to bequeath them to Lorenzo.23
Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M.
Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo
(Rosie) and Antonio L. Mangalindan filed a Supplemental Opposition 24 contending that
Paciencias Will was null and void because ownership of the properties had not been transferred
and/or titled to Paciencia before her death pursuant to Article 1049, paragraph 3 of the Civil
Code.25 Petitioners also opposed the issuance of Letters of Administration in Lorenzos favor
arguing that Lorenzo was disqualified to be appointed as such, he being a citizen and resident of
the USA.26 Petitioners prayed that Letters of Administration be instead issued in favor of
Antonio.27
Later still on September 26, 2000, petitioners filed an Amended Opposition 28 asking the RTC
to deny the probate of Paciencias Will on the following grounds: the Will was not executed and
attested to in accordance with the requirements of the law; that Paciencia was mentally incapable
to make a Will at the time of its execution; that she was forced to execute the Will under duress
or influence of fear or threats; that the execution of the Will had been procured by undue and
improper pressure and influence by Lorenzo or by some other persons for his benefit; that the
signature of Paciencia on the Will was forged; that assuming the signature to be genuine, it was
obtained through fraud or trickery; and, that Paciencia did not intend the document to be her
Will. Simultaneously, petitioners filed an Opposition and Recommendation 29reiterating their
opposition to the appointment of Lorenzo as administrator of the properties and requesting for
the appointment of Antonio in his stead.
On January 29, 2001, the RTC issued an Order 30denying the requests of both Lorenzo and
Antonio to be appointed administrator since the former is a citizen and resident of the USA while
the latters claim as a co-owner of the properties subject of the Will has not yet been established.
Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin
was recalled for cross-examination by the petitioners. She testified as to the age of her father at
the time the latter notarized the Will of Paciencia; the living arrangements of Paciencia at the
time of the execution of the Will; and the lack of photographs when the event took place.31

Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness stand.
Monico, son of Faustino, testified on his fathers condition. According to him his father can no
longer talk and express himself due to brain damage. A medical certificate was presented to the
court to support this allegation.32
For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980,
he lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia went
to the USA and lived with him and his family until her death in January 1996; the relationship
between him and Paciencia was like that of a mother and child since Paciencia took care of him
since birth and took him in as an adopted son; Paciencia was a spinster without children, and
without brothers and sisters; at the time of Paciencias death, she did not suffer from any mental
disorder and was of sound mind, was not blind, deaf or mute; the Will was in the custody of
Judge Limpin and was only given to him after Paciencias death through Faustino; and he was
already residing in the USA when the Will was executed. 33 Lorenzo positively identified the
signature of Paciencia in three different documents and in the Will itself and stated that he was
familiar with Paciencias signature because he accompanied her in her transactions. 34 Further,
Lorenzo belied and denied having used force, intimidation, violence, coercion or trickery upon
Paciencia to execute the Will as he was not in the Philippines when the same was executed. 35 On
cross-examination, Lorenzo clarified that Paciencia informed him about the Will shortly after her
arrival in the USA but that he saw a copy of the Will only after her death.36
As to Francisco, he could no longer be presented in court as he already died on May 21, 2000.
For petitioners, Rosie testified that her mother and Paciencia were first cousins. 37 She claimed
to have helped in the household chores in the house of Paciencia thereby allowing her to stay
therein from morning until evening and that during the period of her service in the said
household, Lorenzos wife and his children were staying in the same house. 38 She served in the
said household from 1980 until Paciencias departure for the USA on September 19, 1981. 39On
September 13, 1981, Rosie claimed that she saw Faustino bring something for Paciencia to
sign at the latters house.40 Rosie admitted, though, that she did not see what that something
was as same was placed inside an envelope.41 However, she remembered Paciencia instructing
Faustino to first look for money before she signs them. 42 A few days after or on September 16,
1981, Paciencia went to the house of Antonios mother and brought with her the said
envelope.43 Upon going home, however, the envelope was no longer with Paciencia.44Rosie
further testified that Paciencia was referred to as magulyan or forgetful because she would
sometimes leave her wallet in the kitchen then start looking for it moments later. 45 On cross
examination, it was established that Rosie was neither a doctor nor a psychiatrist, that her
conclusion that Paciencia was magulyan was based on her personal assessment,46 and that it
was Antonio who requested her to testify in court.47
In his direct examination, Antonio stated that Paciencia was his aunt. 48 He identified the Will
and testified that he had seen the said document before because Paciencia brought the same to his
mothers house and showed it to him along with another document on September 16,
1981.49Antonio alleged that when the documents were shown to him, the same were still
unsigned.50 According to him, Paciencia thought that the documents pertained to a lease of one of
her rice lands,51 and it was he who explained that the documents were actually a special power of
attorney to lease and sell her fishpond and other properties upon her departure for the USA, and a
Will which would transfer her properties to Lorenzo and his family upon her death. 52Upon
hearing this, Paciencia allegedly uttered the following words: Why will I never [return], why
will I sell all my properties? Who is Lorenzo? Is he the only [son] of God? I have other

relatives [who should] benefit from my properties. Why should I die already? 53 Thereafter,
Antonio advised Paciencia not to sign the documents if she does not want to, to which the latter
purportedly replied, I know nothing about those, throw them away or it is up to you. The more I
will not sign them.54 After which, Paciencia left the documents with Antonio. Antonio kept the
unsigned documents and eventually turned them over to Faustino on September 18, 1981.55
Ruling of the Regional Trial Court
On September 30, 2003, the RTC rendered its Decision56denying the petition thus:
WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows the
notarized will dated September 13, 1981 of Paciencia Regala.
SO ORDERED.
57

The trial court gave considerable weight to the testimony of Rosie and concluded that at the
time Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of
mind to have testamentary capacity.58
Ruling of the Court of Appeals
On appeal, the CA reversed the RTC Decision and granted the probate of the Will of
Paciencia. The appellate court did not agree with the RTCs conclusion that Paciencia was of
unsound mind when she executed the Will. It ratiocinated that the state of being magulyan
does not make a person mentally unsound so [as] to render [Paciencia] unfit for executing a
Will.59 Moreover, the oppositors in the probate proceedings were not able to overcome the
presumption that every person is of sound mind. Further, no concrete circumstances or events
were given to prove the allegation that Paciencia was tricked or forced into signing the Will.60
Petitioners moved for reconsideration61 but the motion was denied by the CA in its
Resolution62 dated August 31, 2006.
Hence, this petition.
Issues
Petitioners come before this Court by way of Petition for Review on Certiorari ascribing
upon the CA the following errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED THE
PROBATE OF PACIENCIAS WILL DESPITE RESPONDENTS UTTER FAILURE TO COMPLY
WITH SECTION 11, RULE 76 OF THE RULES OF COURT;
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING CONCLUSIONS NOT
IN ACCORDANCE WITH THE EVIDENCE ON RECORD;
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT PETITIONERS
FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND AT THE TIME THE WILL
WAS ALLEGEDLY EXECUTED
63

The pivotal issue is whether the authenticity and due execution of the notarial Will was
sufficiently established to warrant its allowance for probate.
Our Ruling
We deny the petition.

Faithful compliance with the formalities


laid down by law is apparent from the
face of the Will.
Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate
proceedings.64 This is expressly provided for in Rule 75, Section 1 of the Rules of Court, which
states:
Rule 75
Production of Will. Allowance of
Will Necessary.
Section1.Allowance necessary. Conclusive as to execution.No will shall pass either real or
personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such
allowance of the will shall be conclusive as to its due execution.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of
sound mind, freely executed the will in accordance with the formalities prescribed by
law.65 These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:
Art.805.Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testators 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.
The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all
the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806.Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another with the
Office of the Clerk of Court.

Here, a careful examination of the face of the Will shows faithful compliance with the
formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental
witnesses and the notary public, are all present and evident on the Will. Further, the attestation
clause explicitly states the critical requirement that the testatrix and her instrumental witnesses
signed the Will in the presence of one another and that the witnesses attested and subscribed to
the Will in the presence of the testator and of one another. In fact, even the petitioners acceded
that the signature of Paciencia in the Will may be authentic although they question her state of
mind when she signed the same as well as the voluntary nature of said act.
The burden to prove that Paciencia
was of unsound mind at the time of
the execution of the will lies on the
shoulders of the petitioners.
Petitioners, through their witness Rosie, claim that Paciencia was magulyan or forgetful so
much so that it effectively stripped her of testamentary capacity. They likewise claimed in their
Motion for Reconsideration66 filed with the CA that Paciencia was not only magulyan but was
actually suffering from paranoia.67
We are not convinced.

We agree with the position of the CA that the state of being forgetful does not necessarily
make a person mentally unsound so as to render him unfit to execute a Will.68 Forgetfulness is not
equivalent to being of unsound mind. Besides, Article 799 of the New Civil Code states:
Art.799.To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or
other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the
estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

In this case, apart from the testimony of Rosie pertaining to Paciencias forgetfulness, there is
no substantial evidence, medical or otherwise, that would show that Paciencia was of unsound
mind at the time of the execution of the Will. On the other hand, we find more worthy of
credence Dra. Limpins testimony as to the soundness of mind of Paciencia when the latter went
to Judge Limpins house and voluntarily executed the Will. The testimony of subscribing
witnesses to a Will concerning the testators mental condition is entitled to great weight where
they are truthful and intelligent.69More importantly, a testator is presumed to be of sound mind at
the time of the execution of the Will and the burden to prove otherwise lies on the oppositor.
Article 800 of the New Civil Code states:
Art.800.The law presumes that every person is of sound mind, in the absence of proof to the
contrary.
The burden of proof that the testator was not of sound mind at the time of making his dispositions is
on the person who opposes the probate of the will; but if the testator, one month, or less, before making
his will was publicly known to be insane, the person who maintains the validity of the will must prove
that the testator made it during a lucid interval.

Here, there was no showing that Paciencia was publicly known to be insane one month or less
before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of unsound
mind lies upon the shoulders of petitioners. However and as earlier mentioned, no substantial
evidence was presented by them to prove the same, thereby warranting the CAs finding that
petitioners failed to discharge such burden.
Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be
disposed of, the proper objects of her bounty and the character of the testamentary act. As aptly
pointed out by the CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she
executed. She specially requested that the customs of her faith be observed upon her death. She was well
aware of how she acquired the properties from her parents and the properties she is bequeathing to
LORENZO, to his wife CORAZON and to his two (2) children. A third child was born after the execution
of the will and was not included therein as devisee.
70

Bare allegations of duress or influence


of fear or threats, undue and improper
influence and pressure, fraud and trickery cannot be used as basis to
deny the probate of a will.
An essential element of the validity of the Will is the willingness of the testator or testatrix to
execute the document that will distribute his/her earthly possessions upon his/her death.
Petitioners claim that Paciencia was forced to execute the Will under duress or influence of fear
or threats; that the execution of the Will had been procured by undue and improper pressure and
influence by Lorenzo or by some other persons for his benefit; and that assuming Paciencias
signature to be genuine, it was obtained through fraud or trickery. These are grounded on the

alleged conversation between Paciencia and Antonio on September 16, 1981 wherein the former
purportedly repudiated the Will and left it unsigned.
We are not persuaded.
We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as her
own son and that love even extended to Lorenzos wife and children. This kind of relationship is
not unusual. It is in fact not unheard of in our culture for old maids or spinsters to care for and
raise their nephews and nieces and treat them as their own children. Such is a prevalent and
accepted cultural practice that has resulted in many family discords between those favored by the
testamentary disposition of a testator and those who stand to benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that Paciencias relationship with Lorenzo
and his family is different from her relationship with petitioners. The very fact that she cared for
and raised Lorenzo and lived with him both here and abroad, even if the latter was already
married and already has children, highlights the special bond between them. This unquestioned
relationship between Paciencia and the devisees tends to support the authenticity of the said
document as against petitioners allegations of duress, influence of fear or threats, undue and
improper influence, pressure, fraud, and trickery which, aside from being factual in nature, are
not supported by concrete, substantial and credible evidence on record. It is worth stressing that
bare arguments, no matter how forceful, if not based on concrete and substantial evidence cannot
suffice to move the Court to uphold said allegations. 71 Furthermore, a purported will is not [to
be] denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, for even if a will has been duly executed in fact,
whether x x x it will be probated would have to depend largely on the attitude of those interested
in [the estate of the deceased].72
Court should be convinced by the
evidence presented before it that the
Will was duly executed.
Petitioners dispute the authenticity of Paciencias Will on the ground that Section 11 of Rule
76 of the Rules of Court was not complied with. It provides:
RULE 76
Allowance or Disallowance of Will
Section11.Subscribing witnesses produced or accounted for where will contested.If the will is
contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code
of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the
death, absence, or insanity of any of them must be satisfactorily shown to the court . If all or some of such
witnesses are present in the Philippines but outside the province where the will has been filed, their
deposition must be taken. If any or all of them testify against the due execution of the will, or do not
remember having attested to it, or are otherwise of doubtful credibility, the will may nevertheless, be
allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented
that the will was executed and attested in the manner required by law.
If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know
the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of
the testator; in the absence of any competent witnesses, and if the court deem it necessary, expert
testimony may be resorted to. (Emphasis supplied.)

They insist that all subscribing witnesses and the notary public should have been presented in
court since all but one witness, Francisco, are still living.
We cannot agree with petitioners.

We note that the inability of Faustino and Judge Limpin to appear and testify before the court
was satisfactorily explained during the probate proceedings. As testified to by his son, Faustino
had a heart attack, was already bedridden and could no longer talk and express himself due to
brain damage. To prove this, said witness presented the corresponding medical certificate. For
her part, Dra. Limpin testified that her father, Judge Limpin, suffered a stroke in 1991 and had to
undergo brain surgery. At that time, Judge Limpin could no longer talk and could not even
remember his daughters name so that Dra. Limpin stated that given such condition, her father
could no longer testify. It is well to note that at that point, despite ample opportunity, petitioners
neither interposed any objections to the testimonies of said witnesses nor challenged the same on
cross examination. We thus hold that for all intents and purposes, Lorenzo was able to
satisfactorily account for the incapacity and failure of the said subscribing witness and of the
notary public to testify in court. Because of this the probate of Paciencias Will may be allowed
on the basis of Dra. Limpins testimony proving her sanity and the due execution of the Will, as
well as on the proof of her handwriting. It is an established rule that [a] testament may not be
disallowed just because the attesting witnesses declare against its due execution; neither does it
have to be necessarily allowed just because all the attesting witnesses declare in favor of its
legalization; what is decisive is that the court is convinced by evidence before it, not necessarily
from the attesting witnesses, although they must testify, that the will was or was not duly
executed in the manner required by law.73
Moreover, it bears stressing that [i]rrespective x x x of the posture of any of the parties as
regards the authenticity and due execution of the will x x x in question, it is the mandate of the
law that it is the evidence before the court and/or [evidence that] ought to be before it that is
controlling.74 The very existence of [the Will] is in itselfprima facie proof that the supposed
[testatrix] has willed that [her] estate be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be given full effect independent of
the attitude of the parties affected thereby. 75 This, coupled with Lorenzos established
relationship with Paciencia, the evidence and the testimonies of disinterested witnesses, as
opposed to the total lack of evidence presented by petitioners apart from their self-serving
testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its
allowance for probate.
WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the
Resolution dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are
AFFIRMED.
SO ORDERED.
Corona (C.J., Chairperson), Leonardo-De Castro, Bersamin and Villarama, Jr., JJ., concur.
Petition denied, judgment and resolution affirmed.

Adm. Matter No. 2026-CFI. December 19, 1981.

NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P.


HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

Judges; Testate Succession; Misconduct defined.Administrative action may be taken


against a judge of the court of first instance for serious misconduct or inefficiency (Sec. 67,
Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error of

judgment. For serious misconduct to exist, there must be reliable evidence showing that
the judicial acts complained of were corrupt or inspired by an intention to violate the law, or
were in persistent disregard of well-known legal rules(In re Impeachment of Horrilleno, 43
Phil. 212, 214215).
Same; Same; Inefficiency defined.Inefficiency implies negligence, incompetence,
ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in
the performance of his duties that diligence, prudence and circumspection which the law
requires in the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21,
1974, 55 SCRA 107, 119).
Same; Same; Inasmuch as the will written in English says that it was in a language
understood and known to the testatrix, but also states that it was translated into the
Filipino language, the probate judge should have readily perceived that the testatrix is
illiterate and the will is void.In the opening paragraph of the will, it was stated that
English was a language understood and known to the testatrix. But in its concluding
paragraph, it was stated that the will was read to the testatrix and translated into Filipino
language. (p. 16, Record of testate case). That could only mean that the will was written in
a language not known to the illiterate testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code that every will must be executed in a
language or dialect known to the testator. Thus, a will written in English, which was not
known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
Same; Same; Trial judge should have observed the hasty preparation of the will which
repeatedly referred to the testatrix as testator."The hasty preparation of the will is shown
in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is
repeatedly referred to as the testator instead of testatrix. Had respondent judge been
careful and observant, he could have noted not only the anomaly as to the language of the
will but also that there was something wrong in instituting the supposed granddaughter as
sole heiress and giving nothing at all to her supposed father who was still alive.
Same; Same; Judge should have noticed that the notary was not presented.
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent
judge could have noticed that the notary was not presented as a witness.
Same; Same; Probate judge should personally conduct hearing of will in spite of lack of
opposition. Judge fined the equivalent of 1, month s salary.In spite of the absence of an
opposition, respondent judge should have personally conducted the hearing on the probate
of the will so that he could have ascertained whether the will was validly executed. Under
the circumstances, we find his negligence and dereliction of duty to be inexcusable.

ADMINISTRATIVE MATTER in the Supreme Court.


The facts are stated in the opinion of the Court.

AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to
probate a will, which on its face is void because it is written in English, a language
not known to the illiterate testatrix, and which is probably aforged will because she
and the attesting witnesses did not appear before the notary as admitted by the
notary himself?
That question arises under the pleadings filed in the testate case and in the
certiorari case in the Court of Appeals which reveal the following tangled strands of
human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine
Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No.
7816). They were childless. They reared a boy named Agapito who used the surname
Suroza and who considered them as his parents as shown in his 1945 marriage
contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of
Testate Case showing that Agapito was 5 years old when Mauro married Marcelina
in 1923).
Mauro died in 1942. Marcelina, as a veterans widow, became a pensioner of the
Federal Government. That explains why on her death she had accumulated some
cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist
and went abroad. Agapito also became a soldier. He was disabled and his wife
Nenita was appointed as his guardian in 1953 when he was declared an
incompetent in Special Proceeding No. 1807 of the Court of First Instance of Rizal,
Pasig Branch I. (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz
wanted also to be his guardian in another proceeding. Arsenia tried to prove that
Nenita was living separately from Agapito and that she (Nenita) admitted to
Marcelina that she was unfaithful to Agapito (pp. 6163, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and
confirmed Nenitas appointment as guardian of Agapito (p. 16, Rollo of CA case).
Agapito has been staying in a veterans hospital in San Francisco or Palo Alto,
California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena
Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted to
Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later delivered
to Marcelina Salvador Suroza who brought her up as a supposed daughter of

Agapito and as her granddaughter (pp. 2326, Rollo of CA-G.R. No. SP-08654-R).
Marilyn used the surname Suroza. She stayed with Marcelina but was not legally
adopted by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas
Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas
Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she
was 73 years old. That will, which is in English, was thumbmarked by her. She was
illiterate.Her letters in English to the Veterans Administration were also
thumbmarked by her (pp. 3839, CA Rollo). In that will, Marcelina bequeathed all
her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City.
At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia,
Makati, Rizal. She owned a 150-square meter lot and house in that place. She
acquired the lot in 1966 (p. 134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina
(p. 97, CA Rollo) and the executrix in her will (the alternate executrix was Juanita
Macaraeg, mother of Oscar, Marilyns husband), filed with the Court of First
Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelinas alleged
will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of
court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the
stenographic notes taken at the hearing before the deputy clerk of court are not in
the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as
administratrix. On the following day, April 1, Judge Honrado issued two orders
directing the Merchants Banking Corporation and the Bank of Americato allow
Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the
passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11,
1975, instructing a deputy sheriff to eject the occupants of the testatrixs house,
among whom was Nenita V. Suroza, and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the
settlement of Marcelinas estate. She and the other occupants of the decedents
house filed on April 18 in the said proceeding a motion to set aside the order of April
11 ejecting them. They alleged that the decedents son Agapito was the sole heir of

the deceased, that he has a daughter named Lilia, that Nenita was Agapitos
guardian and that Marilyn was not Agapitos daughter nor the decedents
granddaughter (pp. 5268, Record of testate case). Later, they questioned the
probate courts jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other
than Marilyn, were claiming Marcelinas estate, he issued on April 23 an order
probating her supposed will wherein Marilyn was the instituted heiress (pp. 7477,
Record).
On April 24, Nenita filed in the testate case an omnibus petition to set aside
proceedings, admit opposition with counterpetition for administration and
preliminary injunction. Nenita in that motion reiterated her allegation that
Marilyn was a stranger to Marcelina, that the will was not duly executed and
attested, that it was procured by means of undue influence employed by Marina and
Marilyn and that the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of
the preterition of Agapito and that Marina was not qualified to act as executrix (pp.
8391, Record).
To that motion was attached an affidavit of Zenaida A. Peaojas, the housemaid
of Marcelina, who swore that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18)
and her omnibus motion to set aside the proceedings (filed on April 24), Nenita filed
the next day, April 25, an opposition to the probate of the will and a counter-petition
for letters of administration. In that opposition, Nenita assailed the due execution of
the will and stated the names and addresses of Marcelinas intestate heirs, her
nieces and nephews (pp. 113121, Record). Nenita was not aware of the decree of
probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio,
Marcelinas niece, who swore that Marcelina never executed a will (pp. 124125,
Record).
Marina in her answer to Nenitas motion to set aside the proceedings admitted
that Marilyn was not Marcelinas granddaughter but was the daughter of Agapito
and Arsenia de la Cruz and that Agapito was not Marcelinas son but merely
an anak-anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenitas counter-petition
for the issuance of letters of administration because of the nonappearance of her
counsel at the hearing. She moved for the reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all pending


incidents, Nenita V. Suroza reiterated her contention that the alleged will is void
because Marcelina did not appear before the notary and because it is written in
English which is not known to her (pp. 208209, Record).
Judge Honrado in his order of June 8, 1976 denied the various incidents
raised by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the will, Nenita
filed a case to annul the probate proceedings (p. 332, Record). That case, Civil
Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to
Judge Honrado. He dismissed it in his order of February 16, 1977 (pp. 398402,
Record).
Judge Honrado in his order dated December 22, 1977, after noting that the
executrix had delivered the estate to Marilyn, and that the estate tax had been paid,
closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in
this Court, Nenita charged Judge Honrado with having probated the fraudulent will
of Marcelina. The complainant reiterated her contention that the testatrix was
illiterate as shown by the fact that she affixed her thumbmark to the will and that
she did not know English, the language in which the will was written. (In the decree
of probate Judge Honrado did not make any finding that the will was written in a
language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the
testatrix had a son named Agapito (the testatrixs supposed sole compulsory and
legal heir), who was preterited in the will, did not take into account the
consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed
him that the testatrix did not know the executrix Marina Paje, that the beneficiarys
real name is Marilyn Sy and that she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina
and her cohorts to withdraw from various banks the deposits of Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving
her access to the record of the probate case by alleging that it was useless for Nenita
to oppose the probate since Judge Honrado would not change his decision. Nenita
also said that Evangeline insinuated that if she (Nenita) had ten thousand pesos,
the case might be decided in her favor. Evangeline allegedly advised Nenita to desist
from claiming the properties of the testatrix because she (Nenita) had no rights

thereto and, should she persist, she might lose her pension from the Federal
Government.
Judge Honrado in his brief comment did not deal specifically with the allegations
of the complaint. He merely pointed to the fact that Nenita did not appeal from the
decree of probate and that in a motion dated July 6, 1976 she asked for a thirtyday
period within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and
that the latter did not mention Evangeline in her letter dated September 11, 1978 to
President Marcos.
Evangeline branded as a lie Nenitas imputation that she (Evangeline) prevented
Nenita from having access to the record of the testamentary proceeding. Evangeline
was not the custodian of the record. Evangeline strongly, vehemently and flatly
denied Nenitas charge that she (Evangeline) said that the sum of ten thousand
pesos was needed in order that Nenita could get a favorable decision. Evangeline
also denied that she has any knowledge of Nenitas pension from the Federal
Government.
The 1978 complaint against Judge Honrado was brought to the attention of this
Court in the Court Administrators memorandum of September 25, 1980. The case
was referred to Justice Juan A. Sison of the Court of Appeals for investigation,
report and recommendation. He submitted a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge
Honrado a petition for certiorari and prohibition wherein she prayed that the will,
the decree of probate and all the proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized
the will. He swore that the testatrix and the three attesting witnesses did not appear
before him and that he notarized the will just to accommodate a brotherlawyer on
the condition that said lawyer would bring to the notary the testatrix and the
witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenitas remedy was an
appeal and her failure to do so did not entitle her to resort to the special civil action
of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to
dismiss the administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his
improper disposition of the testate case which might have resulted in a miscarriage

of justice because the decedents legal heirs and not the instituted heiress in the
void will should have inherited the decedents estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or
interlocutory order or rendering a manifestly unjust judgment or interlocutory order
by reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal
Code).
Administrative action may be taken against a judge of the court of first instance for
serious misconduct or inefficiency (Sec. 67, Judiciary Law). Misconduct implies
malice or a wrongful intent, not a mere error of judgment. For serious misconduct
to exist, there must be reliable evidence showing that the judicial acts complained of
were corrupt or inspired by an intention to violate the law, or were in persistent
disregard of well-known legal rules (In reImpeachment of Horrilleno, 43 Phil. 212,
214215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A
judge would be inexcusably negligent if he failed to observe in the performance of
his duties that diligence, prudence and circumspection which the law requires in the
rendition of any public service (In reClimaco, Adm. Case No. 134-J, Jan. 21,
1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was
written in English and was thumbmarked by an obviously illiterate testatrix, could
have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language
understood and known to the testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix and translated into Filipino
language. (p. 16, Record of testate case). That could only mean that the will was
written in a language not known to the illiterate testatrix and, therefore, it is void
because of the mandatory provision of article 804 of the Civil Code that every will
must be executed in a language or dialect known to the testator. Thus, a will written
in English, which was not known to the Igorot testator, is void and was disallowed
(Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the
testator instead of testatrix.
Had respondent judge been careful and observant, he could have noted not only
the anomaly as to the language of the will but also that there was something wrong

in instituting the supposed granddaughter as sole heiress and giving nothing at all
to her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court,
respondent judge could have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally
conducted the hearing on the probate of the will so that he could have ascertained
whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of duty to be
inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S.
Suroza, a fine equivalent to his salary for one month is imposed on respondent judge
(his compulsory retirement falls on December 25, 1981).
The case against respondent Yuipco has become moot and academic because she
is no longer employed in the judiciary. Since September 1, 1980 she has been
assistant city fiscal of Surigao City. She is beyond this Courts disciplinary
jurisdiction (Peralta vs. Firme, Adm. Matter No. 2044-CFI, November 21,1980,101
SCRA 225).
SO ORDERED.
Barredo (Chairman), De Castro, Ericta and Escolin, JJ., concur.
Concepcion, Jr., J., on leave.
Abad Santos, J., took no part.
Respondent fined equivalent to his salary for one (1) month.
o0o

[No. 42258. January 15, 1936]

In

re Will

of

the

deceased

Leoncia

Tolentino.

VICTORIO

PAYAD,

petitioner

and

appellant, vs. AQUILINA TOLENTINO, oppositor and appellant.


1. 1.WILLS; ATTESTATION CLAUSE; TESTATOR'S SIGNATURE.It was not necessary that the
attestation clause in question should state that the testatrix requested Attorney A to sign her name
inasmuch as the testatrix signed the will in question in accordance with law.
1. 2.ID. ; ID. ; TESTATOR'S MARK."A statute requiring a will to be 'signed' is satisfied if the signature
is made by the testator's mark." (Quoted by this court from 28 R. C. L., p. 117; De Gala vs. Gonzales
and Ona, 53 Phil., 104, 108.)

APPEAL from an order of the Court of First Instance of Manila. Rovira, J.


The facts are stated in the opinion of the court.
Vicente Foz, Marciano Almario and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
GODDARD, J.:
Both parties in this case appeal from an order of the trial court denying the probate of the alleged
will of Leoncia Tolentino, deceased. That court found that the will in question was executed by the
deceased on the date appearing thereon, September 1, 1933, one day before the death of the testatrix,
contrary to the contention of the oppositor that it was executed after her death. The court, however,
denied probate on the ground that the attestation clause was not in conformity with the
requirements of law in that it is not stated therein that the testatrix caused Attorney Almario to
write her name at her express direction.
The appeal of the oppositor-appellant is based upon the alleged failure of the trial court in not
finding that the will in question was executed after the death of Leoncia Tolentino, or that she was
mentally and physically incapable of executing said will one day before her death. After a careful
examination of the evidence on these points we find no reason for setting aside the conclusion of the
trial court as set forth above. The assignments of the oppositor-appellant are therefore overruled.
As to the contention of the petitioner-appellant, as stated above, the trial court denied probate of
the will on the sole ground that the attestation clause does not state that the testatrix requested
Attorney Almario to write her name. The last paragraph of the questioned will reads in part as
follows:

"En prueba de todo lo cual, firmo el presente testamento con mi marca digital, porque no puedo estampar mi
firma a causa de mi debilidad, rogando al abogado M. Almario que ponga mi nombre en el sitio donde he de
estampar mi marca digital * * *."

The evidence of record establishes the fact that Leoncia Tolentino, assisted by Attorney Almario,
placed her thumb mark on each and every page of the questioned will and that said attorney merely
wrote her name to indicate the place where she placed said thumb mark. In other words Attorney
Almario did not sign for the testatrix. She signed by placing her thumb mark on each and every page
thereof. "A statute requiring a will to be 'signed' is satisfied if the signature is made by the testator's
mark." (Quoted by this court from 28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104,
108.) It is clear, therefore, that it was not necessary that the attestation clause in question should
state that the testatrix requested Attorney Almario to sign her name inasmuch as the testarix signed
will in question in accordance with law.
The appealed order of the trial court is reversed and the questioned will of Leoncia Tolentino,
deceased, is hereby admitted to probate with the costs of .this appeal against the oppositor-appellant.
Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.
Order reversed; will admitted to probate.
______________
[No. L-4067. November 29, 1951]
In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs. JULJANA
LACUESTA, ET AL., respondents.
1. 1.WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OP TESTATOR'S NAMB AT LATTER'S
DIRECTION.When the testator expressly caused another to sign the former's name, this fact must be recited in
the attestation clause. Otherwise, the will is fatally defective.
1. 2.ID.; SIGNATURE OF TESTATOR; CROSS.Where the cross appearing on a will is not the usual signature of the
testator or even one of the ways by which he signed his name, that cross cannot be considered a valid signature.

PETITION for review by eertiorari of a decision of the Court of Appeals.


The facts are stated in the opinion of the Court.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C. J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January
3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:
"We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed by himself and
also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator,
and it bears the corresponding number in letter which compose of three pages and all of them were signed in the presence of
the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.
"In testimony, whereof, we sign this testament, this the third day of January, one thousand nine hundred forty three, (1943)
A.D.

(Sgd.) "NUMERIANO EVANGELISTA

(Sgd.) ROSENDO CORTES

(Sgd.) "BIBIANA ILLEGIBLE"

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed
bclow by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is alleged tc have written a
cross immediately after his name. The Court of Appeals, reversing the judgment of the Court of First Instance of
Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins
of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in
the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the
name of the testator by Atty. Javier at the former's request s'aid testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify
that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code
of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of
Appeals) argues, however, that there is no need for such recital because the cross written by the testator after
his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's
theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this
Court

in

the

cases

of De

Galavs. Gonzales

and

Ona, 53

Phil.,

104; Dolar vs. Diancin, 55

Phil.,

479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs.Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or
even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the
mere sign of a cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine whether there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter
in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo, andBautista Angelo, JJ., concur.
Judgment affirmed.
_______________

No. 6285. February 15, 1912.]


PEDRO BARUT, petitioner and appellant, vs. FAUSTINO CABACUNGAN ET AL.,
opponents and appellees.
WlLLS; SlGNING BY THIRD PERSON AT TESTATOR'S REQUEST.With respect to
the validity of a will, it is not important that the person who writes the name of the testator
should also sign his own; the important thing is that it should clearly appear that the name
of the testator was signed at his express direction, in the presence of three witnesses, and in
the presence of the testator and of each other.

APPEAL from a judgment of the Court of First Instance of Ilocos Sur. Chanco, J.
The facts are stated in the opinion of the court.
A. M. Jimenez, for appellant.
Ramon Querubin, for appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan vs. Pedro
Barut and another, No. 6284, just decided by this court, wherein there was an
application f or the probate of an alleged last will and testament of the same person
the probate of whose will is involved in this suit.
1

This appeal arises out of an application on the part of Pedro Barut to probate the
last will and testament of Maria Salomon, deceased. It is alleged in the petition for
probate that Maria Salomon died on the 7th day of November, 1908, in the pueblo of

Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, 1907.
Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged
to have been witnesses to the execution thereof. By the terms of said will Pedro
Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Its
translation into Spanish appears at page 11. After disposing of her property the
testatrix revoked all former wills by her made. She also stated in said will that
being unable to read or write, the same had been read to her by Ciriaco Concepcion
and Timotea Inoselda and that she had instructed Severo Agayan to sign her name
to it as testatrix.
The probate of the will was contested and opposed by a number of the relatives of
the deceased on various grounds, among them that a later will had been executed by
the deceased. The will referred to as being a later will is the one involved in case No.
6284 already referred to. Proceedings for the probate of this later will were pending
at the time. The evidence of the proponents and of the opponents was taken by the
court in both cases for the purpose of considering them together.
In the case before us the learned probate court found that the will was not
entitled to probate upon the sole ground that the handwriting of the person who it
is alleged signed the name of the testatrix to the will for and on her behalf looked
more like the handwriting of one of the other witnesses to the will than that of the
person whose handwriting it was alleged to be. We do not believe that the mere
dissimilarity in writing thus mentioned by the court is sufficient to overcome the
uncontradicted testimony of all the witnesses to the will that the .signature of the
testatrix was written by Severo Agayan at her request and in her presence and in
the presence of all of the witnesses to the will. It is immaterial who writes the name
of the testatrix provided it is written at her request and in her presence and in the
presence of all the witnesses to the execution of the will.
The court seems, by inference at least, to have had in mind that under the law
relating to the execution of a will it is necessary that the person who signs the name
of the testatrix must afterwards sign his own name; and that, in view of the fact
that, in the case at bar, the name signed below that of the testatrix as the person
who signed her name, being, from its appearance, not the same handwriting as that
constituting the name of the testatrix, the will is accordingly invalid, such fact

indicating that the person who signed the name of the testatrix failed to sign his
own. We do not believe that this contention can be sustained. Section 618 of the
Code of Civil Procedure reads as follows:
"No will, except as provided in the preceding section, shall be valid to pass any estate, real
or personal, nor charge or affect the same, unless it be in writing and signed by the testator,
or by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of each other. * * *"

This is the important part of the section under the terms of which the court holds
that the person who signs the name of the testator for him must also sign his own
name. The remainder of the section reads:
"The attestation shall state the fact that the testator signed the will, or caused it to be
signed by some other person, at his express direction, in the presence of three witnesses,
and that they attested and subscribed it in his presence and in the presence of each other.
But the absence of such form of attestation shall not render the will invalid if it is proven
that the will was in fact signed and attested as in this section provided."

From these provisions it is entirely clear that, with respect to the validity of the
will, it is unimportant whether the person who writes the name of the testatrix
signs his own or not. The important thing is that it clearly appears that the name of
the testatrix was signed at her express direction in the presence of three witnesses
and that they attested and subscribed it in her presence and in the presence of each
other. That is all the statute requires. It may be wise as a practical matter that the
one who signs the testator's name signs also his own; but that is not essential to
the validity of the will. Whether one person or another signed the name of the
testatrix in this case is absolutely unimportant so far as the validity of her will is
concerned. The plain wording of the statute shows that the requirement laid down
by the trial court, if it did lay it down, is absolutely unnecessary under the law; and
the reasons underlying the provisions of the statute relating to the execution of wills
do not in any sense require such a provision. From the standpoint of language it is
an impossibility to draw from the words of the law the inference that the person who
signs the name of the testator must sign his own name also. The law requires only
three witnesses to a will, not four.

Nor is such requirement f ound in any other branch of the law. The name of a
person who is unable to write may be signed by another by express direction to any
instrument known to the law. There is no necessity whatever, so far as the validity
of the instrument is concerned, for the person who writes the name of the principal
in the document to sign his own name also. As a matter of policy it may be wise that
he do so inasmuch as it would give such intimation as would enable a person
proving the document to demonstrate more readily the execution by the principal.
But as a matter of essential validity of the document, it is unnecessary. The main
thing to be established in the execution of the will is the signature of the testator. If
that signature is proved, whether it be written by himself or by another at his
request, it is none the less valid, and the fact of such signature can be proved as
perfectly and as completely when the person signing for the principal omits to sign
his own name as it can when he actually signs. To hold a will invalid for the lack of
the signature of the person signing- the name of the principal is, in the particular
case, a complete abrogation of the law of wills, as it rejects and destroys a will which
the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the
doctrine which we have herein laid down. They are Ex parte Santiago (4 Phil. Rep.,
692), Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs.Concepcion (5 Phil. Rep.,
551). Not one of these cases is in point.
The headnote in the case last above stated gives an indication of what all of the
cases are and the question involved in each one of them. It says:
"The testatrix was not able to sign her name to the will, and she requested another person
to sign it f or her. Instead of writing her name he wrote his own upon the will. Held, That
the will was not duly executed."

All of the above cases are precisely of this character. Every one of them was a case in
which the person who signed the will f or the testator wrote his own name to the
will instead of 'writing that of the testator, so that the testator's name nowhere
appeared attached to the will as the one who executed it. The case of Ex
parte Arcenas contains the following paragraph:
"Where a testator does not know how, or is unable for any reason, to sign the will himself, it
shall be signed in the following manner: 'John Doe, by the testator, Richard Roe;' or in this

form: 'By the testator. John Doe, Richard Roe.' All this must be written by the witness
signing at the request of the testator."

The only question for decision in that case, as we have before stated, was presented
by the fact that the person who was authorized to sign the name of the testator to
the will actually failed to sign such name but instead signedhis own thereto. The
decision in that case related only to that question.
Aside from the presentation of an alleged subsequent will the contestants in this
case have set f orth no reason whatever why the will involved in the present
litigation should not be probated. The due and legal execution of the will by the
testatrix is clearly established by the proofs in this case. Upon the facts, therefore,
the will must be probated. As to the defense of a subsequent will, that is resolved in
case No. 6284 of which we have already spoken. We there held that said later will
was not the will of the deceased.
The judgment of the probate court must be and is hereby reversed and that court
is directed to enter an order in the usual form probating the will involved in this
litigation and to proceed with such probate in accordance with law.
Arellano, C. J., Mapa and Carson, JJ., concur.
TORRES, J., concurring:
The undersigned agrees and admits that section 618 of the Code of Civil Procedure does
not expressly require that, when the testator or testatrix is unable or does not know how to
sign, the person who, in the presence and under the express direction of either of them,
writes in the name of the said testator or testatrix must also sign his own name thereto, it
being sufficient for the validity of the will that the said person so requested to sign for the
testator or testatrix write the name of either in his own handwriting.
Since this court began to decide cases with regard to the form, conditions and validity of
wills executed in accordance with the provisions of the Code of Civil Procedure, never has
the specific point just above mentioned been brought into question. Now for the first time it
is affirmed in the majority opinion, written by the learned and distinguished Hon. Justice
Moreland, that, not being required by the said code, the signature of the name of the person
who, at the request of the testator or testatrix, writes the name of either of the latter to the
will executed, is not necessary.

Various and considerable in number have been the decisions rendered by this court in
which, as will be seen further on, upon applying the said section 618 of the Code of Civil
Procedure and requiring its observance in cases where the testator or testatrix is unable or
does not know how to sign his or her name, expressly prescribe the practical method of
complying with the provisions of the law on the subject. Among these decisions several were
written by various justices of this court, some of whom are no longer on this bench, as they
have ceased to hold such position.
Paragraph 2 of the syllabus of case No. 2002, Ex parteDelfin Santiago, concerning the
probate of a will, reads as f ollows:
1

"Wills, authentication of.Where a will is not signed by a testator but by some other person in his
presence and by his direction, such other person should affix the name of the testator thereto, and it
is not sufficient that he sign his own name for and instead of the name of the testator."

Paragraph 1 of the syllabus of case No. 1708, Ex parteArcenas, in the matter of the probate
of a will, states:
1

1. "1.Wills, requisites of; Civil Code, article repealed.Article 695 of the Civil Code was
repealed by section 618 of the Code of Civil Procedure; consequently where a testator is
unable to sign his name, the person signing at his request must write at the bottom of the
will the full name of the testator in the latter's presence, and by his express direction, and
then sign his own name in full."

In the syllabus of decision No. 2586, Tomas Guison vs.Maria Concepcin, the following
statements appear:
2

"Wills; inability to sign; signature by another.The testatrix was not able to sign her name to the
will, and she requested another person to sign it for her. Held, That the will was not duly executed.
(Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Santiago, No. 2002, August
18, 1905.)"

The following syllabus precedes decision No. 3907:

"Execution of wills.Where it appears in a will that the testator has stated that by reason of his
inability to sign his name he requested one of the three witnesses present to do so, and that as a
matter of fact, the said witness wrote the name and surname of the testator who, stating that the
instrument executed by him contained his last will, put the sign of the cross between his said name
and surname, all of which details are set f orth in a note which the witnesses forthwith subscribed in
the presence of the testator and of each other, said will may be probated.

"When the essential requisites of section 618 of the Code of Civil Procedure for the execution and
validity of a will have been complied with, the f act that the witness who was requested to sign the
name of the testator, omitted to state the words 'by request of the testator,' when writing with his
own hand the name and surname of the said testator, and the fact that said witness subscribed his
name together with the other witnesses and not below the name of the testator, does not constitute a
defect nor invalidate the said will."

The following statement appears in the syllabus of case No. 4132, in the matter of the will
of Maria Siason:
1

"The recital of the name of the testator as written below the will at his request serves as a signature
by a third person."

Moreover, among the grounds given as a basis for this same decision, the following appears:
"In sustaining this form of signature, this court does not intend to qualify the decisions in Ex
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the
Arcenas case the court pointed out the correct formula for a signature which ought to be followed, but
did not mean to exclude any other form substantially equivalent."

In the syllabus of decision No. 4454, Ex parte Ondevilla et al., the following appears:
2

"The testatrix was unable to sign her will with her own hand and requested another person to sign
for her in her presence. This the latter did, first writing the name of the testatrix and signing his
own name below: Held, That the signature of the testatrix so affixed is sufficient and a will thus
executed is admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)"

The syllabus of decision No. 5149 sets forth that:


3

"The legality of a will is not affected by the insertion, supposed to have been made subsequently, of
another name before that of the testator when such name may be treated as nonexistent without
affecting its validity."

Among the conclusions contained in this last decision the following is found:
"Although the said words 'For Simplicia de los Santos' be considered as inserted subsequently, which
we neither affirm nor deny, because a specific determination either way is unnecessary, in our
opinion the signature for the testatrix placed outside of the body of the will contains the name of the
testatrix as if she signed the will, and also the signature of the witness who, at her request, wrote
the name of the testatrix and signed for her, affirming the truth of this fact, attested by the other
witnesses then present. And this fully complies with the provisions of section 618 of the Act."

It is true that in none of the decisions above quoted was the rule established that the person
who, at the request of the testator or testatrix, signed the latter's or the former's name and
surname to the will must affix his own signature; but it is no less true that, in prescribing
the method in which the provisions of the said section 618 were to be complied with, it was
stated that, in order that a will so executed might be admitted to probate, it was an
indispensable requisite that the person requested to sign in place of the testator or
testatrix, should write the latter's or the f ormer's name and surname at the f oot of the will
in the presence and under the direction of either, as the case might be, and should
afterwards sign the instrument with his own name and surname.
The statement that the person who writes the name and surname of the testator or
testatrix at the f oot of the will should likewise affix his own signature thereto, name and
surname, though it be considered to be neither a rule nor a requisite necessary to follow for
the admission of the will to probate, yet it is unquestionable that, in inserting this last
above-mentioned detail in the aforesaid decisions, it was deemed to be a complement and
integral part of the required conditions for the fulfillment of the provisions of the law.
It is indisputable that the latter does not require the said subscription and signature of the
person requested to affix to the will the name of the testator or testatrix who is not able to
sign; but by stating in the decisions hereinabove quoted that the name and surname of the
said person should be affixed by him, no act prohibited by law was recommended or
suggested, nor may such a detail be understood to be contrary or opposed to the plain
provisions thereof.
In the preceding decision itself, it is recognized to be convenient and even prudent to
require that the person requested to write the name of the testator or testatrix in the will
also sign the instrument with his own name and surname. This statement induces us to
believe that, in behalf of the inhabitants of this country and for the sake of an upright
administration of justice, it should be maintained that such a signature must appear in the
will, since no harm could accrue to anyone thereby and, on the contrary, it would serve as a
guarantee of the certainty of the act performed and also might eliminate some possible
cause of controversy between the interested parties.
The undersigned feels it his duty to admit that, though convinced of the complete repeal
of article 695 of the Civil Code and, while he concedes that, in the examination and
qualification of a will for the purpose of its probate, one has but to abide by the provisions of
the said section 618 of the Code of Civil Procedure, the sole law applicable in the matter,
yet, perhaps imbued with and strongly impelled by a traditional conception of the laws
which he has known since his youth, relative to the form of execution of testaments, he
believed it to be a very natural and common sense requisite that the signature, with his

own name and surname, of the person requested to write in the will the name and surname
of the testator or testatrix should form a part of the provisions of the aforementioned
section 618.
He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of
the person before referred toa requisite deemed to be convenient and prudent in the
majority opinionformed a part of the provisions of the law, since the latter contains
nothing that prohibits it. The aforementioned different decisions were drawn up in the form
in which they appear, and signed without dissent by all the justices of the court on various
dates, None of them hesitated to sign the decisions, notwithstanding that it was expressly
held therein that the person above mentioned should, besides writing in the will the name
and surname of the testator or testatrix, also sign the said instrument with his own name
and surname.
Without being understood to criticise the provision contained in the said section 618 of
the Code of Civil Procedure, it will not be superfluous to mention that the system adopted in
this section is the same as was in vogue under the f ormer laws that governed in these
Islands, with respect to witnesses who were not able or did not know how to sign their
testimony given in criminal or civil cases, in which event any person at all might write the
name and surname of the witness who was unable or did not know how to sign, at the foot
of his deposition, where a cross was then drawn, and, this done, it was considered that the
instrument had been signed by the witness, though it is true that all these formalities were
performed before the judge and the clerk or secretary of the court, which thereupon certified
that such procedure was had in accordance with the law.
The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure,
the person who writes the name and surname of the testator or testatrix does so by the
order and express direction of the one or of the other, and this f act must be recorded in the
will; but in the matter of the signature of a deposition, the witness, who could not or did not
know how to sign, did not need to designate anyone to write the deponent's name and
surname, and in practice the witness merely made a cross beside his name and surname,
written by whomever it be.
With regard to the execution of wills in accordance with the provisions of previous
statutes, among them those ofthe Civil Code, the person or witness requested by the
testator or testatrix who was not able or did not know how to sign, authenticated the will by
signing it with his own name and surname, preceded by the words "at the request .of the
testator or testatrix." Paragraph 2 of article 695 of the Civil Code contains the following
provisions bearing on the subject:

"Should the testator declare that he does not know how, or is not able to sign, one of the attesting
witnesses or another person shall do so for him at his request, the notary certifying thereto. This
shall also be done if any one of the witnesses can not sign."

So that, prior to the enforcement in this country in 1901 of the Code of Civil Procedure, the
procedure prescribed by the old laws with respect to the signing of a will by a testator or
testatrix who did not know how or who could not sign, consisted in that the person
appointed and requested by the testator or testatrix to sign in his or her stead, such fact
being recorded in the will, merely affixed at the bottom of the will and after the words "at
the request of the testator," his own name, surname and paraph.
It is not at all strange that the attorneys of this country, imbued with and inspired by
these legal provisions, which, it may be said, are traditional to them in the ideas they have
formed of the existing laws in the matter of procedure in compliance therewith as regards
the execution and signing of a will, should have believed that, after the name and surname
of the testator or testatrix had been written at the foot of the will, the person who signed
the instrument in the manner mentioned should likewise sign the same with his own name
and surname.
If in various decisions it has-been indicated that the person who, under the express
direction of the testator or testatrix, wrote the latter's or the former's name and surname,
should also sign the will with his own name and surname, and since this suggestion is not
opposed or contrary to the law, the undersigned is of opinion that it ought not to be modified
or amended, but that, on the contrary, it should be maintained as a requisite established by
the jurisprudence of this court, inasmuch as such a requisite is not contrary to law, to public
order, or to good custom, is in consonance with a tradition of this country, does not prejudice
the testator nor those interested in an inheritance, and, on the contrary, constitutes another
guarantee of the truth and authenticity of the letters with which the name and surname of
the testator or testatrix are written, in accordance with his or her desire as expressed in the
will.
Even though the requisites ref erred to were not recognized in jurisprudence and were
unsupported by any legal doctrine whatever, yet, since it is in harmony with the juridical
usages and customs observed in this country, it ought, in the humble opinion of the writer,
to be maintained for the benefit of the inhabitants of the Islands and f or the sake of a good
administration of justice, because it is not a question of a dangerous innovation or of one
prejudicial to the public good, but a matter of the observance of a convenient, if not a
necessary detail, introduced by the jurisprudence of the courts and which in the present
case has filled a vacancy left by the positive written law.

The foregoing considerations, which perhaps have not the support of better premises,
but, in the opinion of the undersigned, are conducive to the realization of the purposes of
justice, have impelled him to believe that the proposition should be enforced that the
witness requested or invited by the testator or testatrix to write his or her name to the will,
should also subscribe the instrument by signing thereto his own name and surname; and
therefore, with the proper finding in this sense, and a reversal of the judgment appealed
from, that the court below should be ordered to proceed with the probate of the will of the
decedent, Maria Salomon, in accordance with the law.
Judgment reversed and probate ordered.

No. L-18979. June 30, 1964.


IN THE MATTER OF THE TESTATE ESTATE OF THE LATE Jo SEFA
VILLACORTE. CELSO ICASIANO, petitioner-appellee, vs. NATIVIDAD ICASIANO
and ENRIQUE ICASIANO, oppositors-appellants.

Wills; Probate; Policy of Court against undue curtailment of testamentary privileges.


The precedents cited in the case at bar exemplify the Court's policy to require satisfaction of
the legal requirements in the probate of a will in order to guard against fraud and bad faith
but without undue or unnecessary curtailment of the testamentary privilege.
Same; Same; Handwriting expert must have sufficient standards of comparison to prove
forgery of testatrix's signature.The opinion of a handwriting expert trying to prove forgery
of the testatrix's signature fails to convince the court, not only because it is directly
contradicted by another expert but principally because of the paucity of the standards used
by him (only three other signatures), considering the advanced age of the testatrix, the
evident variability of her signatures, and the effect of writing fatigue.
Same; Same; Variance in ink color not reliable when writings affixed to different kinds
of paper.The slight variance in blueness of the ink in the admitted and questioned
signatures does not appear reliable, considering that the standard and challenged writings
were affixed to different kinds of paper.
Same; Same; Fraud or undue influence, diversity of apportionment and prohibition
against contest no evidence of.Neither diversity of apportionment nor prohibition against
contest is evidence of fraud or undue influence in the execution of a will.
Same; Same; Fraud and undue influence are repugnant allegations.Allegations of
fraud and undue influence are mutually repugnant and exclude each other; their joining as
grounds for opposing probate shows absence of definite evidence against the validity of the
will.
Same; Same; Inadvertent failure of an attesting witness to affix his signature to one
page of a will not fatal.The inadvertent failure of an attesting witness to affix his
signature to one page of a testament, due to the simultaneous lifting of two pages in the
course of signing, is not per se sufficient to justify denial of probate.
Same; Same; Signed carbon duplicate of will needs no publication.That the signed
carbon duplicate of a will was produced and admitted without a new publication does not
affect the jurisdiction of the probate court, already conferred by the original publication of
the petition for probate, where the amended petition did not substantially alter the first one
filed, but merely supplemented it by disclosing the existence of said duplicate.

APPEAL from an order of the Court of First Instance of Manila. Caizares, J.


The facts are stated in the opinion of the Court.

Jose W. Diokno for petitioner-appellee.


Rosendo J. Tansinsin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate
the document and its duplicate, marked as Exhibits "A" and "A-1", as the true last
will and testament of Josefa Villacorte, deceased, and appointing as executor Celso
Icasiano, the person ramed therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the
allowance and admission to probate of the original, Exhibit "A" as the alleged will of
Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as
executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused
notice thereof to be published for three (3) successive weeks, previous to the time
appointed, in the newspaper "Manila Chronicle", and also caused personal service of
copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her
opposition; and on November 10, 1958, she petitioned to have herself appointed as a
special administrator, to which proponent objected. Hence, on November 18, 1958,
the court issued an order appointing the Philippine Trust Company as special
administrator.
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the probate of the
alleged will
On March 19, 1959, the petitioner proponent commenced the introduction of his
evidence; but on June 1, 1959, he filed a motion for the admission of an amended
and supplemental petition, alleging that the decedent left a will executed in
duplicate with all the legal requirements, and that he was, on that dates submitting
the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May

26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique
Icasiano filed their joint opposition to the admission of the amended and
supplemental petition, but by order of July 20, 1959, the court admitted said
petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its duplicate to
probate, From this order, the oppositors appealed directly to this Court, the amount
involved being over P200,000.00, on the ground that the same is contrary to law and
the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte
died in the City of Manila on September 12, 1958; that on June 2, 1956, the late
Josefa Villacorte executed a last will and testament in duplicate at the house of her
daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before
and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr.
and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by
the testatrix and by the said three instrumental witnesses on the same date before
attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that
the will was actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and testament, together
with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano, and a little
girl. Of the said three instrumental witnesses to the execution of the decedent's last
will and testament, attorneys Torres and Natividad were in the Philippines at the
time of the hearing, and both testified as to the due execution and authenticity of
the said will So did the Notary Public before whom the will was acknowledged by
the testatrix and attesting witnesses, and also attorneys Fermin Samson, who
actually prepared the document. The latter also testified upon cross examination
that he prepared one original and two copies of Josefa Villacorte's last will and
testament at his house in Baliuag, Bulacan, but he brought only one original and
one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which. was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A" consists of
five pages, and while signed at the end and in every page, it does not contain the
signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3)
thereof; but the duplicate copy attached to the amended and supplemental petition

and marked as Exhibit' "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the
original of the will and its duplicate were subscribed at the end and on the lef t
margin of each and every page thereof by the testatrix herself and attested and
subscribed by the three mentioned witnesses in the testatrix's presence and in that
of one another as witnesses (except for the missing signature of attorney Natividad
011 page three (3) of the original); that pages of the original and duplicate of said
will were duly numbered; that the attestation clause thereof contains all the facts
required by law to be recited therein and is signed by the aforesaid attesting
witnesses; that the will is written in the language known to and spoken by the
testatrix; that the attestation clause is in a language also known to and spoken by
the witnesses; that the will was executed on one single occasion in duplicate copies;
and that both the original and the.duplicate copies were duly acknowledged before
Notary Public Jose Oyengco of Manila on the same dateJune 2, 1956.
Witness Natividad, who testified on his failure to sign page three (3) of the
original, admits that he may havelifted two pages instead of one when he signed the
same, but affirmed that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the
signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were
they written or affixed on the same occasion as "the original, and. further aver 'that
granting. that the documents were genuine, they were executed through mistake
and with undue influence and pressure because the testatrix was deceived into
adopting as her last will and testament the wishes of those who will stand to benefit
from the provisions of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and dispositions thereof,
whereby proponents-appellees stand to profit; from properties held by them as
attorneys-in-fact of the deceased and not enumerated or mentioned therein, while
oppositors-appellants are enjoined not to look for other properties not mentioned in
the will, and not to oppose the probate of it, on penalty of forfeiting their share
in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the
testatrix signed both original and duplicate copies (Exhibits "A" and "A-1",

respectively) of the will spontaneously, on the same occasion, in the presence of the
three attesting witnesses, the notary public who acknowledged the will; and Atty.
Samson, who actually prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the testator and the
witnesses, ,and read to and by the testatrix and Atty. Fermin Samson, together
before they were actually signed; that the attestation clause is also in a language
known to and spoken by the testatrix and the witnesses. The opinion of expert for
oppositors, Mr, Felipe Logan, that the signatures of the testatrix appearing in the
duplicate original were not written by the same hand which wrote the signatures in
the original will leaves us unconvinced, not merely because it is directly
contradicted by expert Martin Ramos for the proponents, but principally because of
the paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond the writer's
range of normal scriptural variation. The expert has, in fact, used as standards only
three other signatures of the testatrix besides those affixed to the original of the
testament (Exh. A); and we feel that with so few standards the expert's opinion and
the signatures in the duplicate could not be those of the testatrix becomes extremely
hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to
show convincingly that there are radical differences that would justify the charge of
forgery, taking into account the advanced age of the testatrix, the evident variability
of her signatures, and the effect of writing fatigue, the duplicate being signed right
the original. These factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering the standard and
challenged writings were affixed to different kinds of paper, with different surfaces
and reflecting power. On the whole therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and the two instrumental
witnesses, Torres and Natividad (Dr. Diy, being in the United States during the
trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some
heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil.
27;Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 218). Diversity of
apportionment is the usual reason for making a testament; otherwise, the decedent
might as well die intestate. The testamentary dispositions that the heirs should not
inquire into other property and that they should respect the distribution made in

the will, under penalty of forfeiture of their shares in the free part do not suffice to
prove fraud or undue influence. They appear motivated by the desire to prevent
prolonged litigation which, as shown by ordinary experience, often results in a
sizeable portion of the estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a matter to be litigated on
another occasion. It is also well to note that, as remarked by the Court of Appeals in
Sideco vs. Sideco; 45 Off. Gaz. 168, fraud and undue influence are mutually
repugnant and exclude each other; their joining as grounds for opposing probate
shows absence of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to af fix
his signature to one page of a testament, due to the simultaneous lifting of two
pages in the course of signing, is not per se sufficient to justify denial of probate.
Impossibility of substitution of this page is assured not only the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing
the coincident imprint of the seal of the notary public before whom the testament
was ratified by testatrix and all three witnesses. The law should not be so strictly
and literally interpreted as to penalize the testatrix on account of the inadvertence
of a single witness over whose conduct she had no control, where the purpose of the
law to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence
on record attests to the full observance of the statutory requisites. Otherwise, as
stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) "witnesses may sabotage the will by muddling or bungling it or the
attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through
pure oversight is shown by his own testimony as well as by the duplicate copy of the
will, which bears a complete set of signatures in every page. The text of the
attestation clause and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are
otherwise satisfied, Thus, despite the literal tenor of the law, this Court has held
that a testament, with the only page signed at its foot by testator and witnesses, but
not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41

Phil. 476); and that despite the requirement for the correlative lettering of the pages
of a will, the failure to make the f irst page either by letters or numbers is not a fatal
defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy
to require satisfaction of the legal requirements in order to guard 'against fraud and
bad faith but without undue or unnecessary curtailment of the testamentary
privilege.
The appellants also argue that since the original of the will is in existence and
available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed
probate of original because it lacked one signature in its third.page, it is easily
discerned that oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be
probated, then the objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove
that the omission of one signature in the third page of the original testament was
inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a
new publication does not affect the jurisdiction of the probate court, already
conferred by the original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely supplemented it by
disclosing the existence of the duplicate, and no showing is made that new interests
were involved (the contents of Exhibit A and A-1 are admittedly identical); and
appellants were duly notified of the proposed amendment. It is nowhere proved or
claimed that the amendment deprived the appellants of any substantial right, and
we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with
costs against appellants.
Bengzon,
C.J., Padilla, Bautista, Angelo, Labrador,Concepcion, Paredes, Regala and Makalint
al, JJ., concur.
Barrera and Dizon, JJ., took no part,
Decision affirmed.

Notes.Cf. Santos v. De Buenaventura, L-22797, Sept. 22,1966, 18 SCRA 47,


where the will provides that any one of the heirs, legatees, and devisees who
contests or opposes the probate of the will or the carrying out of its provisions shall
Jose any right to receive any inheritance or benefit under said will, and their
inheritance or share shall pertain to the other heirs who have not opposed.
It must be conceded that in this jurisdiction, the subscribing witnesses to a
contested will are regarded as the best witnesses in connection with its due
execution. It is similarly true, however, that to deserve full credit , their testimony
must be reasonable and unbiased, and that, as in the case of any other witness,
their testimony may be overcome by any competent evidence, direct or
circumstantial (Junquera v. Borromeo, et al., L-1849S, March 30, 1967, 19 SCRA
656).
oOo

[No. 13431. November 12, 1919.]


In re will

of

Ana

Abangan.

GERTRUDIS

ABANGAN,

executrix

and

appellee, vs. ANASTACIA ABANGAN ET AL., opponents and appellants.


1. 1.WILLS; ATTESTATION.In a will consisting of two sheets the first of which contains all
the testamentary dispositions and is signed at the bottom by the testator and three
witnesses and the second contains only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that both sheets be further signed on their
margins by the testator and the witnesses, or be paged.
1. 2.ID.; ID.; TESTATOR'S SIGNATURE.The testator's signature is not necessary in the
attestation clause because this, as its name implies, appertains only to the witnesses and
not to the testator.

1. 3.ID.; DIALECT IN WHICH WRITTEN; PRESUMPTION.The circumstance appearing in


the will itself that.same was executed in the city of Cebu and in the dialect of this locality
where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to
presume that she knew this dialect in which her will is written.

APPEAL from a judgment of the Court of First Instance of Cebu. Wislizenus, J.


The facts are stated in the opinion of the court.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this decision the opponents appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of
which contains all of the disposition of the testatrix, duly signed at the bottom by Martin
Montalban (in the name and under the direction of the testatrix) and by three witnesses.
The following sheet contains only the attestation clause duly signed at the bottom by the
three instrumental witnesses. Neither of these sheets is signed on the left margin by the
testatrix and the three witnesses, nor numbered by letters; and these omissions, according
to appellants' contention, are defects whereby the probate of the will should have been
denied. We are of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left
margin by the testator and three witnesses in the presence of each other, Act No. 2645
(which is the one applicable in the case) evidently has for its object (referring- to the body of
the will itself) to avoid the substitution of any of said sheets, thereby changing the testator's
dispositions. But when these dispositions are wholly written on only one sheet signed at the
bottom by the testator and three witnesses (as the instant case), their signatures on the left
margin of said sheet would be completely purposeless. In requiring this signature on the
margin, the statute took into consideration, undoubtedly, the case of a will written on
several sheets and must have referred to the sheets which the testator and the witnesses do
not have to sign at the bottom. A different interpretation would assume that the statute

requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute
to the statute such an intention. As these signatures must be written by the testator and
the witnesses in the presence of each other, it appears that, if the signatures at the bottom
of the sheet guaranties its authenticity, another signature on its left margin would be
unnecessary; and if they do not guaranty, same signatures, affixed on another part of same
sheet, would add nothing. We cannot assume that the statute regards of such importance
the place where the testator and the witnesses must sign on the sheet that it would
consider that their signatures written on the bottom do not guaranty the authenticity of the
sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters
placed on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to
know whether any sheet of the will has been removed. But, when all the dispositive parts of
a will are written on one sheet only, the object of the statute disappears because the
removal of this single sheet, although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without
considering whether or not this clause is an essential part of the will, we hold that in the
one accompanying the will in question, the signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the sheet are formalities not
required by the statute. Moreover, referring specially to the signature of the testatrix, we
can add that same is not necessary in the attestation clause because this, as its name
implies, appertains only to the witnesses and not to the testator since the latter does not
attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which
contains all the testamentary dispositions and is signed at the bottom by the testator and
three witnesses and the second contains only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that both sheets be further signed on
their margins by the testator and the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore the laws on this subject should be interpreted in
such a way as to attain these primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of

the right to make a will. So when an interpretation already given assures such ends, any
other interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded.
As another ground for this appeal, it is alleged the records do not show that the testatrix
knew the dialect in which the will is written. But the circumstance appearing in the will
itself that same was executed in the city of Cebu and in the dialect of this locality where the
testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume
that she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with
costs against the appellants. So ordered.
Arellano, C. J., Torres, Johnson, Araullo, Street andMalcolm, JJ., concur.
Judgment affirmed.
____________

[No. L-5826.April 29, 1953]


Testate

estate

of

the

late VICENTE

CAGRO. JESUSA

CAGRO,petitioner

and

appellee, vs. PELAGIO CAGRO, ET AL.,oppositors and appellants.


WILLS; ATTESTATION CLAUSE; LACK OF SIGNATURES OF ATTESTING WITNESSES AT BOTTOM
OF ATTESTATION CLAUSE, IS FATAL DEFECT.Inasmuch as the signatures of the three
witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin, the will is
fatally defective. The attestation clause is "a memorandum of the facts attending the
execution of the will" required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures.
APPEAL from a judgment of the Court of First Instance of Samar. Moscoso, J.
The facts are stated in the opinion of the Court.
Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.


PARAS,C. J.:
This is an appeal interposed by the oppbsitors from a decision of the Court of First
Instance of Samar, admitting to probate the will allegedly executed by Vicente Cagro who
died in Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellants is that the will is fatally defective,
because its attestation clause is not signed by the attesting witnesses. There is no question
that the signatures of the three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed by the witnesses on the
left-hand margin.
We are of the opinion that the position taken iby the appellant is correct. The attestation
clause is "a memorandum of the facts attending the execution of the will" required by law to
be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the
omistsion of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the lefthand margin conform substantially to the law and may be deemed as their signatures to
the attestation clause. This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin of all its pages. If an
attestation clause not signed by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question
denied. So ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo, and Labrador, JJ.,concur.
BAUTISTA ANGELO,J., dissenting:
I dissent. In my opinion the will in question has substantially complied with the
formalities of the law and, therefore, should be admitted to probate. It appears that the will
was signed by the testator and was attested by three instrumental witnesses, not only at
the bottom, but also on the left-hand margin. The witnesses testified not only that the will
was signed by the testator in their presence and in the presence of each other but also that
when they did so, the attestation clause was already written thereon. Their testimony has
not been contradicted. The only objection set up by the oppositors to the validity of the will
is the fact that the signatures of the instrumental witnesses do not appear immediately
after the attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40
Phil., 476), this court said that when the testamentary dispositions "are wholly written on
only one sheet signed at the bottom by the testator and three witnesses (as the instant

case), their signatures on the left margin of said sheet would be completely purposeless." In
such a case, the court said, the requirement of the signatures on the left hand margin was
not necessary because the purpose of the lawwhich is to avoid the substitution of any of
the sheets of the will, thereby changing the testator's dispositionshas already been
accomplished. We may say the same thing in connection with the will under consideration
because while the three instrumental witnesses did not sign immediately after the
attestation clause, the fear entertained by the majority that it may have been only added on
a subsequent occasion and not at the signing of the will, has been obviated by the
uncontradicted testimony of said witnesses to the effect that such attestation clause was
already written in the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
"The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded." (supra)

We should not also overlook the liberal trend of the New Civil Code in the matter of
interpretation of wills, the purpose of which, in case of doubt, is to give such interpretation
that would have the effect of preventing intestacy (articles 788 and 791, New Civil Code).
I am therefore of the opinion that the will in question should be admitted to probate.
Feria, J., concurs.
TUASON, J., dissenting:
I concur in Mr. Justice Bautista's dissenting opinion and may add that the majority
decision erroneously sets down as a fact that the attestation clause was not signed, when
the witnesses' signatures appear on the left margin and the real and only question is
whether such signatures are legally sufficient.
The only answer, in our humble opinion, is yes. The law on wills does not provide that
the attesting witness should sign the clause at the bottom. In the absence of such provision,
there is no reason why signatures on the margin are not good. A letter is not any the less
the writer's simply because it was signed, not at the conventional place but on the side or on
top.
Feria, J., concurs.
Judgment reversed and the probate of the will denied.

[No. 5971. February 27, 1911.]


BEATRIZ NERA ET AL., plaintiffs and appellees, vs.NARCISA RIMANDO, defendant and
appellant.
1. 1.EXECUTION OF WlLLS; POSITION OF TESTATOR AND WlTNESS WHEN WILL is
SUBSCRIBED.The position of testator and of the witnesses to a will, at the moment of
the subscription by each, must be such that they may see each other sign if they choose to do
so.
1. 2.ID. ; ID.; SIGNING IN THE PRESENCE OF EACH OTHER.The question whether the
testator and the subscribing witnesses to an alleged will sign the instrument in the
presence of each other does not depend upon proof of the fact that their eyes were actually
cast upon the paper at the moment of its subscription by each of them, , but whether at that
moment existing conditions and the position of the parties, with relation to each other, were
such that by merely casting their eyes in the proper direction they could have seen each
other sign.
1. 3.ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WILL is SIGNED.If one
subscribing witness to a will is shown to have been in an outer room at the time when the
testator and the other witnesses attach their signatures to the instrument in an inner room,
the will would be held invalidthe attaching of the said signatures, under such
circumstances, not being done "in the presence" of the witness in the outer room.

APPEAL from a decree of the Court of First Instance of La Union. Moir, J.


The facts are stated in the opinion of the court.
Valerio Fontanilla and Andres Asprer, for appellant.
Anacleto Diaz, for appellees.
CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the subscribing
witnesses was present in the small room where it was executed at the time when the
testator and the other subscribing witnesses attached their signatures; or whether at that
time he was outside, some eight or ten feet away, in a large room connecting with the
smaller room by a doorway, across which was hung a curtain which made it impossible for
one in the outside room to see the testator and the other subscribing witnesses in the act of
attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in
the small room with the testator and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding, of course, disposes of the
appeal and necessitates the affirmance of the decree admitting the document to probate as
the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of
fact of vital importance in the determination of this case, as he was of opinion that under
the doctrine laid down in the case of Jaboneta vs.Gustilo (5 Phil. Rep., 541) the alleged fact
that one of the subscribing witnesses was in the outer room when the testator and the other
describing witnesses signed the instrument in the inner room, had it been proven, would
not be sufficient in itself to invalidate the execution of the will. But we are unanimously of
opinion that had this subscribing witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses attached their signatures to the
instrument in the inner room, it would 'have been invalid as a will, the attaching of those
signatures under such circumstances not being done "in the presence" of the witness in the
outer room. This because the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the curtain separating the
inner room from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
"The true test of presence of the testator and the witnesses in the execution of a will is
not whether they actually saw each other sign, but whether they might have seen each other
sign, had they chosen to do so, considering their mental and physical condition and position
with relation to each other at the moment of inscription of each signature."

But it is especially to be noted that the position of the parties with relation to each
other at the moment of the subscription of each signature, must be such that they may see
each other sign if they choose to do so. This, of course, does not mean that the testator and
the subscribing witnesses may be held to have executed the instrument in the presence of
each other if it appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions. The evidence in
the case relied upon by the trial judge discloses that "at the moment when the witness
Javellana signed the document he was actually and physically present and in such position
with relation to Jaboneta that he could see everything that took place by merely casting his
eyes in the proper direction and without any physical obstruction to prevent his doing
so." And the decision merely laid down the doctrine that the question whether the testator
and the subscribing witnesses to an alleged will sign the instrument in the presence of each
other does not depend upon proof of the fact that their eyes were actually cast upon the
paper at the moment of its subscription by each of them, but that at that moment existing
conditions and their position with relation to each other were such that by merely casting
the eyes in the proper direction they could have seen each other sign. To extend the doctrine
further would open the door to the possibility of all manner of fraud, substitution, and the
like, and would defeat the purpose for which this particular condition is prescribed in the
code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to
probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of
this instance against the appellant.
Arellano, C. J., Mapa, Moreland, and Trent, JJ.,concur.
Decree affirmed.
___________

G.R. No. 122880. April 12, 2006.

FELIX AZUELA, petitioner, vs. COURT OF APPEALS, GERALDA


CASTILLO substituted by ERNESTO G. CASTILLO, respondents.

AIDA

Wills and Succession; Notarial Will; Attestation Clause; The enactment of the Civil
Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least
insofar as the attestation clause is concerned.Both Uy Coque and Andradawere decided
prior to the enactment of the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section 618 of the Code of Civil Procedure.
Reliance on these cases remains apropos, considering that the requirement that the
attestation state the number of pages of the will is extant from Section 618. However, the
enactment of the Civil Code in 1950 did put in force a rule of interpretation of the
requirements of wills, at least insofar as the attestation clause is concerned, that may vary
from the philosophy that governed these two cases. Article 809 of the Civil Code states: In
the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805.
Same; Same; Same; A failure by the attestation clause to state that the testator signed
every page can be liberally construed, since that fact can be checked by a visual examination,
while a failure by the attestation clause to state that the witnesses signed in one anothers
presence should be considered a fatal flaw since the attestation is the only textual guarantee
of compliance.[I]t may thus be stated that the rule, as it now stands, is that omission
which can be supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance
to probate of the will being assailed. However, those omissions which cannot be supplied

except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself. Thus, a failure by the attestation clause to state that the
testator signed every page can be liberally construed, since that fact can be checked by a
visual examination; while a failure by the attestation clause to state that the witnesses
signed in one anothers presence should be considered a fatal flaw since the attestation is
the only textual guarantee of compliance.
Same; Same; Same; The failure of the attestation clause to state the number of pages on
which the will was written remains a fatal flaw, despite Article 809; The purpose of the law
in requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and to
prevent any increase or decrease in the pages; There is substantial compliance with this
requirement if the will states elsewhere in it how many pages it is comprised of.The failure
of the attestation clause to state the number of pages on which the will was written remains
a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard against possible interpolation
or omission of one or some of its pages and to prevent any increase or decrease in the pages.
The failure to state the number of pages equates with the absence of an averment on the
part of the instrumental witnesses as to how many pages consisted the will, the execution of
which they had ostensibly just witnessed and subscribed to. Following Caneda, there is
substantial compliance with this requirement if the will states elsewhere in it how many
pages it is comprised of, as was the situation in Singson and Taboada. However, in this
case, there could have been no substantial compliance with the requirements under Article
805 since there is no statement in the attestation clause or anywhere in the will itself as to
the number of pages which comprise the will.
Same; Same; Same; The fact remains that the members of the Code Commission saw fit
to prescribe substantially the same formal requisites enumerated in Section 618 of the Code
of Civil Procedure, convinced that these remained effective safeguards against forgery or
intercalation of notarial wills; The transcendent legislative intent, even as expressed in the
comments of the Code Commission, is for the fruition of the testators incontestable desires,
and not for indulgent admission of wills to probate.At the same time, Article 809 should
not deviate from the need to comply with the formal requirements as enumerated under
Article 805. Whatever the inclinations of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw fit to prescribe substantially the
same formal requisites as enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the forgery or intercalation of
notarial wills. Compliance with these requirements, however picayune in impression,
affords the public a high degree of comfort that the testator himself or herself had decided
to convey property post mortem in the manner established in the will. The transcendent

legislative intent, even as expressed in the cited comments of the Code


Commission, is for the fruition of the testators incontestable desires, and not for
the indulgent admission of wills to probate.
Same; Same; Same; Instrumental Witnesses; Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite
that the will be attested and subscribed by [the instrumental witnesses]the respective
intents behind these two classes of signature are distinct from each other; Even if
instrumental witnesses signed the left-hand margin of the page containing the unsigned
clause, such signatures cannot demonstrate these witnesses undertakings in the clause, since
the signatures that do appear on the page were directed towards a wholly different avowal .
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the will, from
the requisite that the will be attested and subscribed by [the instrumental witnesses]. The
respective intents behind these two classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify, among others, that the witnesses
are aware that the page they are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An unsigned attestation clause results
in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the
page containing the unsigned attestation clause, such signatures cannot demonstrate these
witnesses undertakings in the clause, since the signatures that do appear on the page were
directed towards a wholly different avowal.
Same; Same; Same; It is the attestation clause which contains the utterances reduced
into writing of the testamentary witnesses themselvesit is the witnesses, and not the
testator, who are required under Article 805 to state the number of pages used upon which
the will was written.The Court may be more charitably disposed had the witnesses in this
case signed the attestation clause itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the instrumental witnesses signatures on
each and every page, the fact must be noted that it is the attestation clause which contains
the utterances reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state the number of
pages used upon which the will is written; the fact that the testator had signed the will and
every page thereof; and that they witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another. The only proof in the will that the witnesses
have stated these elemental facts would be their signatures on the attestation clause.

Same; Same; Same; Acknowledgment; An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court and declaring it to be his act
or deed; It involves an extra step undertaken whereby the signor actually declares to the
notary that the executor of the document has attested to the notary that the same is his /her
own free act and deed.Yet, there is another fatal defect to the will on which the denial of
this petition should also hinge. The requirement under Article 806 that every will must be
acknowledged before a notary public by the testator and the witnesses has also not been
complied with. The importance of this requirement is highlighted by the fact that it had
been segregated from the other requirements under Article 805 and entrusted into a
separate provision, Article 806. The non-observance of Article 806 in this case is equally as
critical as the other cited flaws in compliance with Article 805, and should be treated as of
equivalent import. In lieu of an acknowledgment, the notary public, Petronio Y. Bautista,
wrote Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila. By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed in going
before some competent officer or court and declaring it to be his act or deed. It involves an
extra step undertaken whereby the signor actually declares to the notary that the executor
of a document has attested to the notary that the same is his/her own free act and deed.
Same; Same; Same; Same; Jurat; A jurat is that part of an affidavit whereby the notary
certifies that before him/her, the document was subscribed and sworn to by the executor.It
might be possible to construe the averment as a jurat, even though it does not hew to the
usual language thereof. A jurat is that part of an affidavit where the notary certifies that
before him/her, the document was subscribed and sworn to by the executor. Ordinarily, the
language of the jurat should avow that the document was subscribed and sworn before the
notary public, while in this case, the notary public averred that he himself signed and
notarized the document. Possibly though, the word ninotario or notarized encompasses
the signing of and swearing in of the executors of the document, which in this case would
involve the decedent and the instrumental witnesses.
Same; Same; Same; Same; Same; The express requirement of Article 806 is that the will
is to be acknowledged, and not merely subscribed and sworn to; The acknowledgment
coerces the testator and the instrumental witnesses to declare before an officer of the law that
they had executed and subscribed to the will as their own free act or deed.Even if we
consider what was affixed by the notary public as a jurat, the will would nonetheless remain
invalid, as the express requirement of Article 806 is that the will be acknowledged, and
not merely subscribed and sworn to. The will does not present any textual proof, much less
one under oath, that the decedent and the instrumental witnesses executed or signed the
will as their own free act or deed. The acknowledgment made in a will provides for another
all-important legal safeguard against spurious wills or those made beyond the free consent

of the testator. An acknowledgement is not an empty meaningless act. The acknowledgment


coerces the testator and the instrumental witnesses to declare before an officer of the law
that they had executed and subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus allowing for the criminal
prosecution of persons who participate in the execution of spurious wills, or those executed
without the free consent of the testator. It also provides a further degree of assurance that
the testator is of certain mindset in making the testamentary dispositions to those persons
he/she had designated in the will.
Same; Same; Same; Same; A notarial will that is not acknowledged before a notary
public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn
to before a notary public.It may not have been said before, but we can assert the rule, selfevident as it is under Article 806. A notarial will that is not acknowledged before a
notary public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.

PETITION for review on certiorari of a decision of the Court of Appeals.


The facts are stated in the opinion of the Court.
Arthem Maceda Potian for petitioner.
Pedro F. Reiz and Ernesto M. Tomaneng for respondents.
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of this document, the Court is
provided the opportunity to assert a few important doctrinal rules in the execution
of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on

which the will is written is fatally defective. A will whose attestation


clause is not signed by the instrumental witnesses is fatally defective. And
perhaps

most

importantly,

will

which

does

not

contain

an

acknowledgment, but a mere jurat, is fatally defective. Any one of these


defects is sufficient to deny probate. A notarial will with all three defects is
just aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a


comprehensive catalog of imperatives for the proper execution of a notarial will. Full
and faithful compliance with all the detailed requisites under Article 805 of the
Code leave little room for doubt as to the validity in the due execution of the notarial
will. Article 806 likewise imposes another safeguard to the validity of notarial wills
that they be acknowledged before a notary public by the testator and the
witnesses. A notarial will executed with indifference to these two codal provisions
opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the
Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela
sought to admit to probate the notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read
in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay naghahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang
naunang ginawang habilin o testamento:
UnaHinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong
sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng
habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at
kaibigan;
PangalawaAking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong
mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten
Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa
inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San
Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito
ay walang pasubalit at kondiciones;

PangatloNa ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling


habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
127PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa
amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at
sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat
dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite
on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ;

NOTARIO PUBLIKO

Page No. 86 ;

Until Dec. 31, 1981

Book No. 43 ;

PTR-152041-1/2/81-Manila

Series of 1981

TAN # 1437-977-8

The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to
have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of the 12 legitimate heirs of the
decedent. Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in several court
cases filed by oppositor against petitioner, particularly for forcible entry and
usurpation of real property, all centering on petitioners right to occupy the
properties of the decedent. It also asserted that contrary to the representations of
petitioner, the decedent was actually survived by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad. Per records, it was subsequently
alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, and the
mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by
three (3) months.
2

Oppositor Geralda Castillo also argued that the will was not executed and
attested to in accordance with law. She pointed out that decedents signature did not
appear on the second page of the will, and the will was not properly acknowledged.
These twin arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August
1992. The RTC favorably took into account the testimony of the three (3) witnesses
to the will, Quirino Agrava, Lamberto Leao, and Juanito Estrada. The RTC also
called to fore the modern tendency in respect to the formalities in the execution of a
will x x x with the end in view of giving the testator more freedom in expressing his
last wishes; and from this perspective, rebutted oppositors arguments that the will
was not properly executed and attested to in accordance with law.
6

After a careful examination of the will and consideration of the testimonies of the
subscribing and attesting witnesses, and having in mind the modern tendency in respect to
the formalities in the execution of a will, i.e., the liberalization of the interpretation of the
law on the formal requirements of a will with the end in view of giving the testator more
freedom in expressing his last wishes, this Court is persuaded to rule that the will in
question is authentic and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will
after the signature of the testatrix, the following statement is made under the sub-title,
Patunay Ng Mga Saksi:
Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin
ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.

The aforequoted declaration comprises the attestation clause and the acknowledgement
and is considered by this Court as a substantial compliance with the requirements of the
law.

On the oppositors contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the
signing by the subscribing witnesses on the left margin of the second page of the
will containing the attestation clause and acknowledgment, instead of at the bottom

thereof, substantially satisfies the purpose of identification and attestation of the


will.
With regard to the oppositors argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the attestation
did not state the number of pages thereof, it is worthy to note that the will is
composed of only two pages. The first page contains the entire text of the
testamentary dispositions, and the second page contains the last portion of the
attestation clause and acknowledgement. Such being so, the defects are not of a
serious nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page, which contains
only the last portion of the attestation clause and acknowledgment is not a fatal
defect.
As regards the oppositors assertion that the signature of the testatrix on the will
is a forgery, the testimonies of the three subscribing witnesses to the will are
convincing enough to establish the genuineness of the signature of the testatrix and
the due execution of the will.
8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated
17 August 1995, the Court of Appeals reversed the trial court and ordered the
dismissal of the petition for probate. The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the will, thus
rendering the will void and undeserving of probate.
9

10

Hence, the present petition.


Petitioner argues that the requirement under Article 805 of the Civil Code that the
number of pages used in a notarial will be stated in the attestation clause is merely
directory, rather than mandatory, and thus susceptible to what he termed as the
substantial compliance rule.
11

The solution to this case calls for the application of Articles 805 and 806 of the
Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by
the testator himself or by the testators 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.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another
with the office of the Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of
the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of
pages of the will. There was an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number of pages in the
attestation clause. Yet the blank was never filled in; hence, the requisite was left
uncomplied with.
12

The Court of Appeals pounced on this defect in reversing the trial court, citing in
the process Uy Coque v. Navas L. Sioca and In re: Will of Andrada. In Uy Coque,
the Court noted that among the defects of the will in question was the failure of the
attestation clause to state the number of pages contained in the will. In ruling that
the will could not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day: The purpose of requiring
the number of sheets to be stated in the attestation clause is obvious; the
13

14

15

document might easily be so prepared that the removal of a sheet would

completely change the testamentary dispositions of the will and in the


absence of a statement of the total number of sheets such removal might be
effected by taking out the sheet and changing the numbers at the top of

the following sheets or pages. If, on the other hand, the total number of sheets is
stated in the attestation clause the falsification of the document will involve the
inserting of new pages and the forging of the signatures of the testator and
witnesses in the margin, a matter attended with much greater difficulty.
16

The case of In re Will of Andrada concerned a will the attestation clause of which
failed to state the number of sheets or pages used. This consideration alone was
sufficient for the Court to declare unanim[ity] upon the point that the defect
pointed out in the attesting clause is fatal. It was further observed that it cannot
be denied that the x x x requirement affords additional security against the danger
that the will may be tampered with; and as the Legislature has seen fit to prescribe
this requirement, it must be considered material.
17

18

Against these cited cases, petitioner cites Singson v. Florentino and Taboada v.
Hon. Rosal, wherein the Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state the number of pages of the
will. Yet the appellate court itself considered the import of these two cases, and
made the following distinction which petitioner is unable to rebut, and which we
adopt with approval:
19

20

Even a cursory examination of the Will (Exhibit D), will readily show that the attestation
does not state the number of pages used upon which the will is written. Hence, the Will is
void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in Manuel Singson versus
Emilia Florentino, et al., 92 Phil. 161and Apolonio [Taboada] versus Hon. Avelino Rosal, et
al., 118 SCRA 195, to the effect that a will may still be valid even if the attestation does not
contain the number of pages used upon which the Will is written. However, the Decisions of
the Supreme Court are not applicable in the aforementioned appeal at bench. This is so
because, in the case of Manuel Singson versus Emilia Florentino, et al., supra, although
the attestation in the subject Will did not state the number of pages used in the will,
however, the same was found in the last part of the body of the Will:
x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon which the
will is written, which requirement has been held to be mandatory as an effective safeguard against
the possibility of interpolation or omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405;Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil.
481;Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing the will and
that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself.
But here the situation is different. While the attestation clause does not state the number of sheets
or pages upon which the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion takes this case out of
the rigid rule of construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated by purely technical
considerations. (page 165-165, supra) (Italics supplied)

In Apolonio Tabaoda versus Hon. Avelino Rosal, et al. supra, the notarial
acknowledgement in the Will states the number of pages used in the:
x x x
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire will that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the
end or at the bottom while the instrumental witnesses signed at the left margin. The other page
which is marked as Pagina dos comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that this Last Will and Testament consists of two pages including this
page (pages 200-201, supra) (Italics supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in
any part of the Will. The will does not even contain any notarial acknowledgment wherein
the number of pages of the will should be stated.
21

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code
in 1950, at a time when the statutory provision governing the formal requirement of
wills was Section 618 of the Code of Civil Procedure. Reliance on these cases
remains apropos, considering that the requirement that the attestation state the
number of pages of the will is extant from Section 618. However, the enactment of
the Civil Code in 1950 did put in force a rule of interpretation of the requirements of
22

23

wills, at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states: In
the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the requirements of article
805.
In the same vein, petitioner cites the report of the Civil Code Commission, which
stated that the underlying and fundamental objective permeating the provisions on
the [law] on [wills] in this project consists in the [liberalization] of the manner of
their execution with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the [modern tendency]
in respect to the formalities in the execution of wills. However, petitioner
conveniently omits the qualification offered by the Code Commission in the very
same paragraph he cites from their report, that such liberalization be but with
sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.
24

25

Caneda v. Court of Appeals features an extensive discussion made by Justice


Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation
clause in wills. Uy Coque andAndrada are cited therein, along with several other
cases, as examples of the application of the rule of strict construction. However, the
Code Commission opted to recommend a more liberal construction through the
substantial compliance rule under Article 809. A cautionary note was struck
though by Justice J.B.L. Reyes as to how Article 809 should be applied:
26

27

28

x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the subscribing witnesses are three
or the will was notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely disregarded. But
the total number of pages, and whether all persons required to sign did so in the
presence of each other must substantially appear in the attestation clause, being
the only check against perjury in the probate proceedings. (Emphasis supplied.)
29

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
decision, considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded.
In Caneda itself, the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective signatures to
the will in the presence of the testator and of each other, the other omission cited by
Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
30

Caneda suggested: [I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidencealiunde would result in the
invalidation of the attestation clause and ultimately, of the will itself. Thus, a
failure by the attestation clause to state that the testator signed every page can be
liberally construed, since that fact can be checked by a visual examination; while a
failure by the attestation clause to state that the witnesses signed in one anothers
presence should be considered a fatal flaw since the attestation is the only textual
guarantee of compliance.
31

32

The failure of the attestation clause to state the number of pages on which the
will was written remains a fatal flaw, despite Article 809. The purpose of the law in
requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and
to prevent any increase or decrease in the pages. The failure to state the number of
pages equates with the absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial
compliance with this requirement if the will states elsewhere in it how many pages
it is comprised of, as was the situation in Singson and Taboada. However, in this
case, there could have been no substantial compliance with the requirements under
Article 805 since there is no statement in the attestation clause or anywhere in the
will itself as to the number of pages which comprise the will.
33

At the same time, Article 809 should not deviate from the need to comply with
the formal requirements as enumerated under Article 805. Whatever the
inclinations of the members of the Code Commission in incorporating Article 805,

the fact remains that they saw fit to prescribe substantially the same formal
requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced
that these remained effective safeguards against the forgery or intercalation of
notarial wills. Compliance with these requirements, however picayune in
impression, affords the public a high degree of comfort that the testator himself or
herself had decided to convey property post mortem in the manner established in the
will. The transcendent legislative intent, even as expressed in the cited
34

35

comments of the Code Commission, is for the fruition of the testators

incontestable desires, and not for the indulgent admission of wills to


probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that
should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the lefthand margin of the will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary public.
Cagro v. Cagro is material on this point. As in this case, the signatures of the
three witnesses to the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses on the left-hand
margin. While three (3) Justices considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through Chief Justice
Paras, ruled that the attestation clause had not been duly signed, rendering the will
fatally defective.
36

37

38

There is no question that the signatures of the three witnesses to the will do not appear at
the bottom of the attestation clause, although the page containing the same is signed by the
witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation
clause is a memorandum of the facts attending the execution of the will required by law to
be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the
omission of their signatures at the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the lefthand margin conform substantially to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures are in compliance with the
legal mandate that the will be signed on the left-hand margin of all its pages. If an
attestation clause not signed by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the
will, from the requisite that the will be attested and subscribed by [the
instrumental witnesses]. The respective intents behind these two classes of
signature are distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the attestation clause is separate
and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin
of the page containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses undertakings in the clause, since the signatures that
do appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed
the attestation clause itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the instrumental witnesses
signatures on each and every page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into writing of the testamentary
witnesses themselves. It is the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used upon which the will is written;
the fact that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that the witnesses have stated
these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that every will must be
acknowledged before a notary public by the testator and the witnesses has also not
been complied with. The importance of this requirement is highlighted by the fact
that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806
in this case is equally as critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod
ng Maynila. By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be his act or deed. It
involves an extra step undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the notary that the same is
his/her own free act and deed.
40

41

It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to by
the executor. Ordinarily, the language of the jurat should avow that the document
was subscribed and sworn before the notary public, while in this case, the notary
public averred that he himself signed and notarized the document. Possibly
though, the word ninotario or notarized encompasses the signing of and
swearing in of the executors of the document, which in this case would involve the
decedent and the instrumental witnesses.
42

Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is that
the will be acknowledged, and not merely subscribed and sworn to. The will does
not present any textual proof, much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their own free act or deed.
The acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent of the
testator. An acknowledgement is not an empty meaningless act. The
acknowledgment coerces the testator and the instrumental witnesses to declare
43

before an officer of the law that they had executed and subscribed to the will as their
own free act or deed. Such declaration is under oath and under pain of perjury, thus
allowing for the criminal prosecution of persons who participate in the execution of
spurious wills, or those executed without the free consent of the testator. It also
provides a further degree of assurance that the testator is of certain mindset in
making the testamentary dispositions to those persons he/she had designated in the
will.
It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary
public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.

There are two other requirements under Article 805 which were not fully
satisfied by the will in question. We need not discuss them at length, as they are no
longer material to the disposition of this case. The provision requires that the
testator and the instrumental witnesses sign each and every page of the will on the
left margin, except the last; and that all the pages shall be numbered correlatively
in letters placed on the upper part of each page. In this case, the decedent, unlike
the witnesses, failed to sign both pages of the will on the left margin, her only
signature appearing at the so-called logical end of the will on its first page. Also,
the will itself is not numbered correlatively in letters on each page, but instead
numbered with Arabic numerals. There is a line of thought that has disabused the
notion that these two requirements be construed as mandatory. Taken in isolation,
these omissions, by themselves, may not be sufficient to deny probate to a will. Yet
even as these omissions are not decisive to the adjudication of this case, they need
not be dwelt on, though indicative as they may be of a general lack of due regard for
the requirements under Article 805 by whoever executed the will. All told, the string
of mortal defects which the will in question suffers from makes the probate denial
inexorable.
44

45

WHEREFORE, the petition is DENIED. Costs against petitioner.


SO ORDERED.
Quisumbing (Chairperson), Carpio and Carpio-Morales, JJ., concur.

Petition denied.
o0o

No.L-32213. November 26, 1973.

AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR,


Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
Succession; Wills; Formal requirements; Acknowledging officer cannot serve as witness
at the same time.The notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot acknowledge before himself
his having signed the will. To acknowledge before means to avow; to own as genuine, to
assent, to admit, and before means in front or preceding in space or ahead of.
Consequently, if the third witness were the notary public himself, he would have to avow,
assent or admit his having signed the will in front of himself. This cannot be done because
he cannot split his personality into two so that one will appear before the other to
acknowledge his participation in the making of the will.
Notary public; Function of office of notary public.The function of a notary public is,
among others, to guard against any illegal or immoral arrangements. That function would
be defeated if the notary public were one of the attesting witnesses. For then he would be
interested in sustaining the validity of the will as it directly involves himself and the
validity of his own act. It would place him in an inconsistent position and the very purpose
of the acknowledgment, which is to minimize fraud would be thwarted.

PETITION for review by certiorari of a judgment of the Court of First Instance of


Cebu.
The facts are stated in the opinion of the Court.

Paul G. Gorrez for petitioner.


Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court of First Instance of Cebu
allowing the probate of the last will and testament of the late Valente Z. Cruz.
Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased,
opposed the allowance of the will (Exhibit E),alleging that the will was executed
through fraud, deceit, misrepresentation and undue influence; that the said
instrument was executed without the testator having been fully informed of the
contents thereof, particularly as to what properties he was disposing; and that the
supposed last will and testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of the said last will
and testament. Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case
hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit
E) was executed in accordance with law, particularly Articles 805 and 806 of the
new Civil Code, the first requiring at least three credible witnesses to attest and
subscribe to the will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr.,
Dr. Francisco Paares, and Atty. Angel H. Teves, Jr., one of them, the last named, is
at the same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the notary public
to acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before the
notary public to acknowledge the will. On the other hand, private respondent-

appellee, Manuel B. Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is substantial compliance with the
legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American
Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
It is said that there are practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testators signature under oath rather than as attesting the
execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to
sustain that of the appellant that the last will and testament in question was not
executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will. To acknowledge
before means to avow (Javellana v. Ledesma,97 Phil. 258, 262; Castro v. Castro, 100
Phil. 239, 247); to own as genuine, to assent, to admit; and before means in front
or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the
English Language, p. 72;Funk & Wagnalls New Standard Dictionary of the English
Language, p. 252; Websters New International Dictionary2d. p. 245.) Consequently,
if the third witness were the notary public himself, he would have to avow, assent, or
admit his having signed the will in front of himself. This cannot be done because he
cannot split his personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit such a situation
to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against
any illegal or immoral arrangements. Balinon v. De Leon, 50 O. G. 583.) That
function would be defeated if the notary public were one of the attesting or
instrumental witnesses. For them he would be interested in sustaining the validity
of the will as it directly involves himself and the validity of his own act. It would
place him in an inconsistent position and the very purpose of the acknowledgment,

which is to minimize fraud (Report of the Code Commission p. 106-107), would be


thwarted.
Admittedly, there are American precedents holding that a notary public may, in
addition, act as a witness to the execution of the document he has notarized.
(Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill.
130). There are others holding that his signing merely as a notary in a will
nonetheless makes him a witness thereunder (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.
911, Tyson v. Utterback, 122 So. 496; In Re Baybees Estate 160 N. W. 900; Merill v.
Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the law in this jurisdiction or are not decisive
of the issue herein, because the notaries public and witnesses referred to in the
aforecited cases merely acted as instrumental, subscribing or attesting witnesses,
and not as acknowledgingwitnesses. Here the notary public acted not only as
attesting witness but also as acknowledging witness, a situation not envisaged by
Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will or file another
with the office of the Clerk of Court. [Underscoring supplied]

To allow the notary public to act as third witness, or one of the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of Article 805
requiring at least three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses must appear before
the notary public to acknowledge the will. The result would be, as has been said,
that only two witnesses appeared before the notary public for that purpose. In the
circumstances, the law would not be duly observed.

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

C.

J., Castro, Teehankee, Makasiar andMuoz

Palma,

JJ.,

concur.
Judgment reversed.
Notes.Acknowledgment of Will Before Notary Public.The requirement of Arts.
805 and 806 of the new Civil Code that every will be acknowledged before a notary
public by the testator and the witnesses, and that the latter must avow to the
certifying officer the authenticity of their signatures, etc., is sufficiently complied
with where the avowal is duly made at the time of execution of the will, and it is
immaterial that the notarys signing and sealing of the certification is done later, at
his own office. Re Estate of Ledesma, L-7179, June 30, 1955.
The requirement of Art. 806 of the new Civil Code that a will be acknowledged
before a notary means only that it must be assented to, avowed, or admitted before
such officer. It does not require raising of the right hand or any particular ceremony,
if the testators signature is affixed in the notarys presence. De Castro vs. De
Castro, L-8996, October 31, 1956.
o0o

No. L-7179. June 30, 1955]


Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA,
petitioner and appellee, vs.DOA MATEA LEDESMA, oppositor and appellant.
WILLS; ACKNOWLEDGMENT; CERTIFICATION OF NOTARY THAT TESTAMENT
WAS DULY ACKNOWLEDGED IS NOT PART OF ACKNOWLEDGMENT OR

TESTAMENTARY ACT.The subsequent signing and sealing by the notary of his


certification that the testament was duly acknowledged by the participants therein is no
part of the acknowledgment itself nor of the testamentary act. Hence their separate
execution out of the presence of the testatrix and her witnesses can not be said to violate
the rule that testaments should be completed without interruption (Andalis vs. Pulgueras,
59 Phil., 643), or, as the Roman maxim puts it, "uno eodem die ac tempore in eodem loco".

APPEAL from a judgment of the Court of First Instance of Iloilo. Makalintal, J.


The facts are stated in the opinion of the Court.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J. B. L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate
the documents in the Visayan dialect, marked Exhibits D and E, as the testament
and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de
Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana,
Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da.
Matea Ledesma, sister and nearest surviving relative of said deceased, appealed
from the decision, insisting that the said exhibits were not executed in conformity
with law. The appeal was made directly to this Court because the value of the
properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked
testamentary capacity and that the dispositions were procured through undue
influence. These grounds were abandoned at the hearing in the court below, where
the issue was concentrated into three specific questions: (1) whether the testament
of 1950 was executed by the testatrix in the presence of the instrumental witnesses;
(2) whether the acknowledgment clause was signed and the notarial seal affixed by
the notary without the presence of the testatrix and the witnesses; and (3) if so,
whether the codicil was thereby rendered invalid and ineffective. These questions
are the same ones presented to us for resolution.

The contestant argues that the Court below erred in refusing credence to her
witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the
deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and
heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had
brought the "testamento" and urge her to go to attorney Tabiana's office to sign it;
that Da. Apolinaria manifested that she could not go, because she was not feeling
well; and that upon Yap's insistence that the will had to be signed in the attorney's
office and not elsewhere, the deceased took the paper and signed it in the presence
of Yap alone, and returned it with the statement that no one would question it
because the property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing
the trial Court's rejection of the improbable story of these witnesses. It is squarely
contradicted by the concordant testimony of the instrumental witnesses, Vicente
Yap, Atty, Ramn C. Tabiana, and his wife Gloria Montinola, who asserted under
oath that the testament was executed by testatrix and witnesses in the presence of
each other, at the house of the decedent on General Hughes St, Iloilo City, on March
30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap
should have insisted that Da. Apolinaria, an infirm lady then over 80 years old,
should leave her own house in order to execute her will, when all three witnesses
could have easily repaired thither for the purpose. Moreover, the cross-examination
has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to
have heard the word "testamento'' for the first time when Yap used it; and yet they
claimed ability to recall that word four years later, despite the fact that the term
meant nothing to either. It is well known that what is to be remembered must first
be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria
Paderogao was positive that Yap brought the will, and that the deceased alone
signed it precisely on March 30, 1950; but she could remember no other date, nor
give satisfactory explanation why that particular day stuck in her mind. Worse still,
Allado claimed to have heard what allegedly transpired between Yap and Da.
Apolinaria from the kitchen of the house, that was later proved to have been
separated from the deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from the kitchen.
Later, on redirect examination, Allado sought to cure his testimony by claiming that
he was upstairs in a room where the servants used to eat when he heard Yap
converse with his mistress; but this correction is unavailing, since it was plainly
induced by two highly leading questions from contestant's counsel that had been

previously ruled out by the trial Court. Besides, the contradiction is hardly
consonant with this witness' 18 years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental
witnesses urged upon us by the contestant-appellant, concerning the presence or
absence of Aurelio Montinola at the signing of the testament or of the codicil and
the identity of the person who inserted the date therein, are not material and are
largely imaginary, since the witness Mrs. Tabiana confessed inability to remember
all the details of the transaction. Neither are we impressed by the argument that
the use of some Spanish terms in the codicil and testament (like legado, partes
iguales, plena, proiedad) is proof that its contents were not understood by the
testatrix, it appearing in evidence that those terms are of common use even in the
vernacular, and that the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of
the certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan,
Exhibit E. Unlike the testament, this codicil was executed after the enactment of
the new Civil Code,, and, therefore, had to be acknowledged before a notary public
(Art. 806). Now, the instrumental witnesses (who happen to be the same ones who
attested the will of 1950) asserted that after the codicil had been signed by the
testratrix and the witnesses at San Pablo Hospital, the same was signed and sealed
by notary public Gimotea on the same occasion. On the other hand, Gimotea
afirmed that he did not do so, but brought the codicil to his office, and signed and
sealed it there. The variance does not necessarily imply conscious perversion of
truth on the part of the witnesses, but appears rather due to a well-established
phenomenon, the tendency of the mind, in recalling past events, to substitute the
usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The
Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the
certification of acknowledgment in the presence of the testatrix and the witnesses,
does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new
Civil Code does not require that the signing of the testator, witnesses and notary
should be accomplished in one single act. A comparison of Articles 805 and 806 of
the new Civil Code reveals that while testator and witnesses must sign in the
presence of each other, all that is thereafter required is that "every will must be
acknowledged before a notary public by the testator and the witnesses" (Art. 806) ;

i.e., that the latter should avow to the certifying officer the authenticity of their
signatures and the voluntariness of their actions in executing the testamentary
disposition. This was done in the case before us. The subsequent signing and sealing
by the notary of his certification that the testament was duly acknowledged by the
participants therein is no part of the acknowledgment itself nor of the testamentary
act. Hence their separate execution out of the presence of the testatrix and her
witnesses can not be said to violate the rule that testaments should be completed
without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim
puts it, "uno eodem die ac tempore in eadem loco",and no reversible error was
committed by the Court in so holding. It is noteworthy that Article 806 of the new
Civil Code does not contain words requiring that the testator and the witnesses
should acknowledge the testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against
appellant.
Bengzon,
Acting
C.
J., Padilla, Montemayor, Reyes,
Angelo, Labrador, and Concepcion, JJ.,concur.

A.,Jugo, Bautista

Judgment affirmed.

G.R. No. 157451. December 16, 2005.

LETICIA VALMONTE
respondent.

ORTEGA,

petitioner, vs.JOSEFINA

C.

VALMONTE,

Civil Law; Wills; The party challenging the will bears the burden of proving the
existence of fraud at the time of its execution; The burden to show otherwise shifts to the
proponent of the will only upon a showing of credible evidence of fraud.Fraud is a trick,
secret device, false statement, or pretense, by which the subject of it is cheated. It may be of
such character that the testator is misled or deceived as to the nature or contents of the
document which he executes, or it may relate to some extrinsic fact, in consequence of the
deception regarding which the testator is led to make a certain will which, but for the fraud,

he would not have made. We stress that the party challenging the will bears the burden of
proving the existence of fraud at the time of its execution. The burden to show otherwise
shifts to the proponent of the will only upon a showing of credible evidence of fraud.
Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence
of fraud was ever presented.
Same; Same; The omission of some relatives does not affect the due execution of a will.
It is a settled doctrine that the omission of some relatives does not affect the due execution
of a will. That the testator was tricked into signing it was not sufficiently established by the
fact that he had instituted his wife, who was more than fifty years his junior, as the sole
beneficiary; and disregarded petitioner and her family, who were the ones who had taken
the cudgels of taking care of [the testator] in his twilight years.
Same; Same; The conflict between the dates appearing on the will does not invalidate
the document because the law does not even require that a notarial will be executed and
acknowledged on the same occasion.As correctly ruled by the appellate court, the conflict
between the dates appearing on the will does not invalidate the document, because the law
does not even require that a [notarial] will x x x be executed and acknowledged on the same
occasion. More important, the will must be subscribed by the testator, as well as by three or
more credible witnesses who must also attest to it in the presence of the testator and of one
another. Furthermore, the testator and the witnesses must acknowledge the will before a
notary public. In any event, we agree with the CA that the variance in the dates of the will
as to its supposed execution and attestation was satisfactorily and persuasively explained
by the notary public and the instrumental witnesses.
Same; Same; The testimonies of the three subscribing witnesses and the notary are
credible evidence of its due execution.Petitioner failed to substantiate her claim of a
grand conspiracy in the commission of a fraud. There was no showing that the witnesses
of the proponent stood to receive any benefit from the allowance of the will. The testimonies
of the three subscribing witnesses and the notary are credible evidence of its due execution.
Their testimony favoring it and the finding that it was executed in accordance with the
formalities required by law should be affirmed, absent any showing of ill motives.
Same; Same; To be considered of sound mind, things that the testator must have the
ability to know.According to Article 799, the three things that the testator must have the
ability to know to be considered of sound mind are as follows: (1) the nature of the estate to
be disposed of, (2) the proper objects of the testators bounty, and (3) the character of the
testamentary act. Applying this test to the present case, we find that the appellate court
was correct in holding that Placido had testamentary capacity at the time of the execution
of his will.

Same; Same; Testamentary incapacity does not necessarily require that a person shall
actually be insane or of unsound mind.Between the highest degree of soundness of mind
and memory which unquestionably carries with it full testamentary capacity, and that
degrees of mental aberration generally known as insanity or idiocy, there are numberless
degrees of mental capacity or incapacity and while on one hand it has been held that mere
weakness of mind, or partial imbecility from disease of body, or from age, will not render a
person incapable of making a will; a weak or feebleminded person may make a valid will,
provided he has understanding and memory sufficient to enable him to know what he is
about to do and how or to whom he is disposing of his property. To constitute a sound and
disposing mind, it is not necessary that the mind be unbroken or unimpaired or
unshattered by disease or otherwise. It has been held that testamentary incapacity does not
necessarily require that a person shall actually be insane or of unsound mind.

PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Manuel T. De Guia for petitioner.
Benigno Pulmano for respondent.
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the burden of
showing why it should not be allowed. In the present case, petitioner has failed to
discharge this burden satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed the probate of the
will.
The Case
Before the Court is a Petition for Review under Rule 45 of the Rules of Court,
seeking to reverse and set aside the December 12, 2002 Decision and the March 7,
2003 Resolution of the Court of Appeals (CA) in CA-G.R. CV No. 44296. The
assailed Decision disposed as follows:
1

WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED
and SET ASIDE. In its place judgment is rendered approving and allowing probate to the

said last will and testament of Placido Valmonte and ordering the issuance of letters
testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the court a
quo for further and concomitant proceedings.
4

The assailed Resolution denied petitioners Motion for Reconsideration.


The Facts
The facts were summarized in the assailed Decision of the CA, as follows:
x x x: Like so many others before him, Placido toiled and lived for a long time in the United
States until he finally reached retirement. In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in
their names in TCT 123468. Two years after his arrival from the United States and at the
age of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded
bliss, Placido died on October 8, 1984 of a cause written down as COR PULMONALE.
Placido executed a notarial last will and testament written in English and consisting of
two (2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first
page contains the entire testamentary dispositions and a part of the attestation clause, and
was signed at the end or bottom of that page by the testator and on the left hand margin by
the three instrumental witnesses. The second page contains the continuation of the
attestation clause and the acknowledgment, and was signed by the witnesses at the end of
the attestation clause and again on the left hand margin. It provides in the body that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD
AMEN:
I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident
of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being ofsound and disposing mind
and memory, do hereby declare thisto be my last will and testament:
1. 1.It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic
Church in accordance with the rites and said Church and that a suitable monument to be
erected and provided my by executrix (wife) to perpetuate my memory in the minds of my
family and friends;
2. 2.I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2)
portion of the follow-described properties, which belongs to me as [co-owner]:

1. a.Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro
Manila, described and covered by TCT No. 123468 of the Register of Deeds of Pasig, MetroManila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having
share and share alike;
2. b.2-storey building standing on the above-described property, made of strong and mixed
materials used as my residence and my wife and located at No. 9200 Catmon Street,
Makati, Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, MetroManila, jointly in the name of my deceased sister, Ciriaca Valmonte and myself as coowners, share and share alike or equal co-owners thereof;
1. 3.All the rest, residue and remainder of my real and personal properties, including my
savings account bank book in USA which is in the possession of my nephew, and all others
whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C.
Valmonte;
2. 4.I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and
testament, and it is my will that said executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City,
Philippines.

The allowance to probate of this will was opposed by Leticia on the grounds that:
1. 1.Petitioner failed to allege all assets of the testator, especially those found in the USA;
2. 2.Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to
give them proper notice pursuant to law;
3. 3.Will was not executed and attested as required by law and legal solemnities and formalities
were not complied with;
4. 4.Testator was mentally incapable to make a will at the time of the alleged execution he
being in an advance sate of senility;
5. 5.Will was executed under duress, or the influence of fear or threats;
6. 6.Will was procured by undue and improper influence and pressure on the part of the
petitioner and/or her agents and/or assistants; and/or
7. 7.Signature of testator was procured by fraud, or trick, and he did not intend that the
instrument should be his will at the time of affixing his signature thereto;

and she also opposed the appointment as Executrix of Josefina alleging her want of
understanding and integrity.
At the hearing, the petitioner Josefina testified and called as witnesses the notary
public Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental
witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the
opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified.
According to Josefina after her marriage with the testator they lived in her parents
house at Salingcob, Bacnotan, La Union but they came to Manila every month to get his
$366.00 monthly pension and stayed at the said Makati residence. There were times though
when to shave off on expenses, the testator would travel alone. And it was in one of his
travels by his lonesome self when the notarial will was made. The will was witnessed by the
spouses Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado.
Josefina said she had no knowledge of the existence of the last will and testament of her
husband, but just serendipitously found it in his attache case after his death. It was only
then that she learned that the testator bequeathed to her his properties and she was named
the executrix in the said will. To her estimate, the value of property both real and personal
left by the testator is worth more or less P100,000.00. Josefina declared too that the testator
never suffered mental infirmity because despite his old age he went alone to the market
which is two to three kilometers from their home cooked and cleaned the kitchen and
sometimes if she could not accompany him, even traveled to Manila alone to claim his
monthly pension. Josefina also asserts that her husband was in good health and that he
was hospitalized only because of a cold but which eventually resulted in his death.
Notary Public Floro Sarmiento, the notary public who notarized the testators will,
testified that it was in the first week of June 1983 when the testator together with the three
witnesses of the will went to his house cum law office and requested him to prepare his last
will and testament. After the testator instructed him on the terms and dispositions he
wanted on the will, the notary public told them to come back on June 15, 1983 to give him
time to prepare it. After he had prepared the will the notary public kept it safely hidden
and locked in his drawer. The testator and his witnesses returned on the appointed date but
the notary public was out of town so they were instructed by his wife to come back on
August 9, 1983, and which they did. Before the testator and his witnesses signed the
prepared will, the notary public explained to them each and every term thereof in Ilocano, a
dialect which the testator spoke and understood. He likewise explained that though it
appears that the will was signed by the testator and his witnesses on June 15, 1983, the day
when it should have been executed had he not gone out of town, the formal execution was
actually on August 9, 1983. He reasoned that he no longer changed the typewritten date of
June 15, 1983 because he did not like the document to appear dirty. The notary public also

testified that to his observation the testator was physically and mentally capable at the
time he affixed his signature on the will.
The attesting witnesses to the will corroborated the testimony of the notary public, and
testified that the testator went alone to the house of spouses Eugenio and Feliza Gomez at
GSIS Village, Quezon City and requested them to accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro
Sarmiento, they were told to return on June 15, 1983; that they returned on June 15, 1983
for the execution of the will but were asked to come back instead on August 9, 1983 because
of the absence of the notary public; that the testator executed the will in question in their
presence while he was of sound and disposing mind and that he was strong and in good
health; that the contents of the will was explained by the notary public in the Ilocano and
Tagalog dialect and that all of them as witnesses attested and signed the will in the
presence of the testator and of each other. And that during the execution, the testators wife,
Josefina was not with them.
The oppositor Leticia declared that Josefina should not inherit alone because aside from
her there are other children from the siblings of Placido who are just as entitled to inherit
from him. She attacked the mental capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83 years old and was no longer of
sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati
residence and asked Leticias family to live with him and they took care of him. During that
time, the testators physical and mental condition showed deterioration, aberrations and
senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a
fancy and wanted to marry.
Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces
the opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the
will; and
2. Mental incapacity of the testator at the time of the execution of the will as he was then in an
advanced state of senility

It then found these grounds extant and proven, and accordingly disallowed probate.

Ruling of the Court of Appeals


Reversing the trial court, the appellate court admitted the will of Placido Valmonte
to probate. The CA upheld the credibility of the notary public and the subscribing

witnesses who had acknowledged the due execution of the will. Moreover, it held
that the testator had testamentary capacity at the time of the execution of the will.
It added that his sexual exhibitionism and unhygienic, crude and impolite
ways did not make him a person of unsound mind.
6

Hence, this Petition.

Issues
Petitioner raises the following issues for our consideration:
I.
Whether or not the findings of the probate court are entitled to great respect.
II.
Whether or not the signature of Placido Valmonte in the subject will was procured by
fraud or trickery, and that Placido Valmonte never intended that the instrument should be
his last will and testament.
III.
Whether or not Placido Valmonte has testamentary capacity at the time he allegedly
executed the subject will.
8

In short, petitioner assails the CAs allowance of the probate of the will of Placido
Valmonte.
This Courts Ruling
The Petition has no merit.
Main

Issue:

Probate of a Will
At the outset, we stress that only questions of law may be raised in a Petition for
Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however,
the evidence presented during the trial may be examined and the factual matters

resolved by this Court when, as in the instant case, the findings of fact of the
appellate court differ from those of the trial court.
9

The fact that public policy favors the probate of a will does not necessarily mean
that every will presented for probate should be allowed. The law lays down the
procedures and requisites that must be satisfied for the probate of a will.
10

Verily, Article 839 of the Civil Code states the instances when a will may be
disallowed, as follows:
Article 839. The will shall be disallowed in any of the following cases:
1. (1)If the formalities required by law have not been complied with;
2. (2)If the testator was insane, or otherwise mentally incapable of making a will, at
the time of its execution;
3. (3)If it was executed through force or under duress, or the influence of fear, or
threats;
4. (4)If it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person;
5. (5)If the signature of the testator was procured by fraud;
1. (6)If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.

In the present case, petitioner assails the validity of Placido Valmontes will by
imputing fraud in its execution and challenging the testators state of mind at the
time.
Existence of Fraud in the Execution of a Will
Petitioner does not dispute the due observance of the formalities in the execution of
the will, but maintains that the circumstances surrounding it are indicative of the
existence of fraud. Particularly, she alleges that respondent, who is the testators
wife and sole beneficiary, conspired with the notary public and the three attesting
witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the
varying dates of the execution and the attestation of the will.

Petitioner contends that it was highly dubious for a woman at the prime of her
young life [to] almost immediately plunge into marriage with a man who [was]
thrice her age x x x and who happened to be [a] Fil-American pensionado, thus
casting doubt on the intention of respondent in seeking the probate of the will.
Moreover, it supposedly defies human reason, logic and common experience for an
old man with a severe psychological condition to have willingly signed a last will and
testament.
11

12

We are not convinced. Fraud is a trick, secret device, false statement, or


pretense, by which the subject of it is cheated. It may be of such character that the
testator is misled or deceived as to the nature or contents of the document which he
executes, or it may relate to some extrinsic fact, in consequence of the deception
regarding which the testator is led to make a certain will which, but for the fraud,
he would not have made.
13

We stress that the party challenging the will bears the burden of proving the
existence of fraud at the time of its execution. The burden to show otherwise shifts
to the proponent of the will only upon a showing of credible evidence of
fraud. Unfortunately in this case, other than the self-serving allegations of
petitioner, no evidence of fraud was ever presented.
14

15

It is a settled doctrine that the omission of some relatives does not affect the due
execution of a will. That the testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who was more than fifty
years his junior, as the sole beneficiary; and disregarded petitioner and her family,
who were the ones who had taken the cudgels of taking care of [the testator] in his
twilight years.
16

17

Moreover, as correctly ruled by the appellate court, the conflict between the dates
appearing on the will does not invalidate the document, because the law does not
even require that a [notarial] will x x x be executed and acknowledged on the same
occasion. More important, the will must be subscribed by the testator, as well as by
three or more credible witnesses who must also attest to it in the presence of the
testator and of one another. Furthermore, the testator and the witnesses must
acknowledge the will before a notary public. In any event, we agree with the CA
that the variance in the dates of the will as to its supposed execution and
18

19

20

attestation was satisfactorily and persuasively explained by the notary public and
the instrumental witnesses.
21

The pertinent transcript of stenographic notes taken on June 11, 1985, November
25, 1985, October 13, 1986, and October 21, 1987as quoted by the CAare
reproduced respectively as follows:

Atty. Floro Sarmiento:


Q

You typed this document exhibit C, specifying the date


June 15 when the testator and his witnesses were
supposed to be in your office?

Yes sir.

On June 15, 1983, did the testator and his witnesses come
to your house?

They did as of agreement but unfortunately, I was out of


town.
xxx

xxx

xxx

The document has been acknowledged on August 9, 1983


as per acknowledgement appearing therein. Was this the
actual date when the document was acknowledged?

Yes sir.

What about the date when the testator and the three
witnesses affixed their respective signature on the first
and second pages of exhibit C?

On that particular date when it was acknowledged,


August 9, 1983.

Why did you not make the necessary correction on the


date appearing on the body of the document as well as the
attestation clause?

Because I do not like anymore to make some alterations


so I put it in my own handwriting August 9, 1983 on the
acknowledgement. (tsn, June 11, 1985, pp. 8-10)

Eugenio Gomez:
Q

It appears on the first page Mr. Witness that it is dated


June 15, 1983, whereas in the acknowledgement it is
dated August 9, 1983, will you look at this document and
tell us this discrepancy in the date?

We went to Atty. Sarmiento together with Placido


Valmonte and the two witnesses; that was first week of
June and Atty. Sarmiento told us to return on the 15th of
June but when we returned, Atty. Sarmiento was not
there.

When you did not find Atty. Sarmiento on June 15, 1983,
did you again go back?

We returned on the 9th of August and there we signed.

This August 9, 1983 where you said it is there where you


signed, who were your companions?

The two witnesses, me and Placido Valmonte. (tsn,

November 25, 1985, pp. 7-8)


Felisa Gomez on cross-examination:
Q

Why did you have to go to the office of Atty. Floro


Sarmiento, three times?
xxx

xxx

xxx

The reason why we went there three times is that, the first
week of June was out first time. We went there to talk to
Atty. Sarmiento and Placido Valmonte about the last will
and testament. After that what they have talked what will
be placed in the testament, what Atty. Sarmiento said was
that he will go back on the 15th of June. When we
returned on June 15, Atty. Sarmiento was not there so we
were not able to sign it, the will. That is why, for the third
time we went there on August 9 and that was the time we
affixed our signature. (tsn, October 13, 1986, pp. 4-6)

Josie Collado:
Q

When you did not find Atty. Sarmiento in his house on


June 15, 1983, what transpired?

The wife of Atty. Sarmiento told us that we will be back


on August 9, 1983.

And on August 9, 1983 did you go back to the house of


Atty. Sarmiento?

Yes, Sir.

For what purpose?

Our purpose is just to sign the will.

Were you able to sign the will you mentioned?

Yes sir. (tsn, October 21, 1987, pp. 4-5)

22

Notably, petitioner failed to substantiate her claim of a grand conspiracy in the


commission of a fraud. There was no showing that the witnesses of the proponent
stood to receive any benefit from the allowance of the will. The testimonies of the
three subscribing witnesses and the notary are credible evidence of its due
execution. Their testimony favoring it and the finding that it was executed in
accordance with the formalities required by law should be affirmed, absent any
showing of ill motives.
23

24

Capacity to Make a Will


In determining the capacity of the testator to make a will, the Civil Code gives the
following guidelines:
Article 798. In order to make a will it is essential that the testator be of sound mind at the
time of its execution.
Article 799. To be of sound mind, it is not necessary that the testator be in full possession
of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered
by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the character of
the testamentary act.
Article 800. The law presumes that every person is of sound mind, in the absence of
proof to the contrary.

The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid
interval.

According to Article 799, the three things that the testator must have the ability to
know to be considered of sound mind are as follows: (1) the nature of the estate to be
disposed of, (2) the proper objects of the testators bounty, and (3) the character of
the testamentary act. Applying this test to the present case, we find that the
appellate court was correct in holding that Placido had testamentary capacity at the
time of the execution of his will.
It must be noted that despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his shares in them and even
their locations. As regards the proper objects of his bounty, it was sufficient that he
identified his wife as sole beneficiary. As we have stated earlier, the omission of
some relatives from the will did not affect its formal validity. There being no
showing of fraud in its execution, intent in its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind isAlsua-Betts v. CA, which
held thus:
25

Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary capacity, and that degrees of mental aberration generally
known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity
and while on one hand it has been held that mere weakness of mind, or partial imbecility
from disease of body, or from age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will, provided he has understanding and
memory sufficient to enable him to know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and disposing mind, it is not necessary that
the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been
held that testamentary incapacity does not necessarily require that a person shall actually
be insane or of unsound mind.
26

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution
of the Court of Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.

Sandoval-Gutierrez, Corona, Carpio-Morales andGarcia, JJ., concur.


Petition denied, assailed decision and resolution affirmed.
Note.In the interpretation of wills, when an uncertainty arises on the face of
the will, the testators intention is to be ascertained from the words of the will
taking into consideration the circumstances under which it was made. (Rabadilla
vs. Court of Appeals, 334 SCRA 522[2000])
o0o

[No. 15566.September 14, 1921]

EUTIQUIA AVERA, petitioner and appellee, vs. MARINO GARCIA,and JUAN


RODRIGUEZ, as guardian of the minors Cesar Garcia and Jose Garcia,
objectors and appellants.
1.WILLS; PROBATE; NECESSITY

FOR

PRODUCTION

OF

ATTESTING WITNESSES.When

the petition for probate of a will is contested the proponent should introduce all
three of the attesting witnesses, if alive and within reach of the process of the
court; and the execution of the will cannot be considered sufficiently proved by
the testimony of only one, without satisfactory explanation of the failure to
produce the other two.
2.ID.; PLEADING

AND

PRACTICE; OBJECTION

TO

PROOF

OF

WILL

BY

SINGLE WITNESS.

Nevertheless, in a case where the attorney for the contestants raised no


question upon this point in the court below, either at the hearing upon the
petition or in the motion to rehear, it is held that an objection to the probate of
the will on the ground that only one attesting witness was examined by the
proponent of the will, without accounting for the absence of the others, cannot be
made for the first time in this court.
3.WILLS; SIGNATURES
MARGIN.A

will

OF

TESTATOR

otherwise

AND

properly

ATTESTING WITNESSES; USE


executed

in

accordance

OF

RIGHT

with

the

requirements of existing law is not rendered invalid by the fact that the paginal
signatures of the testator and attesting witnesses appear in the right margin
instead of the left.
APPEAL from a judgment of the Court of First Instance of Zambales.San
Agustin, J.

The facts are stated in the opinion of the court.


Dionisio Villanueva for appellants.
Marcelino Lontok for appellee.
STREET,J.:
In proceedings in the court below, instituted by Eutiquia Avera for probate of the
will of one Esteban Garcia, contest was made by Marino Garcia and Juan
Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia and
Cesar Garcia. Upon the date appointed for the hearing, the proponent of the will
introduced one of the three attesting witnesses who testifiedwith details not
necessary to be here specifiedthat the will was executed with all necessary
external formalities, and that the testator was at the time in full possession of
disposing faculties. Upon the latter point the witness was corroborated by the
person who wrote the will at the request of the testator. Two of the attesting
witnesses were not introduced, nor was their absence accounted for by the
proponent of the will.
When the proponent rested the attorney for the opposition introduced a single
witness whose testimony tended to show in, a vague and indecisive manner that at
the time the will was made the testator was so debilitated as to be unable to
comprehend what he was about.
After the cause had been submitted for determination upon the proof thus
presented, the trial judge found that the testator at the time of the making of the
will was of sound mind and disposing memory and that the will had been properly
executed. He accordingly admitted the will to probate.

From this judgment an appeal was taken in behalf of the persons contesting the
will, and the only errors here assigned have reference to the two following points,
namely, first, whether a will can be admitted to probate, where opposition is made,
upon the proof of a single attesting witness, without producing or accounting for the
absence of the other two; and, secondly, whether the will in question is rendered
invalid by reason of the fact that the signature of the testator and of the three
attesting witnesses are written on the right margin of each page of the will instead
of the left margin.
Upon the first point, while it is undoubtedly true that an uncontested will may be
proved by the testimony of only one of the three attesting witnesses, nevertheless in
Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate
examination of the American and English authorities that when a contest is
instituted, all of the attesting witnesses must be examined, if alive and within reach
of the process of the court.
In the present case no explanation was made at the trial as to why all three of
the attesting witnesses were not produced, but the probable reason is found in the
fact that, although the petition for the probate of this Will had been pending from
December 21, 1917, until the date set for the hearing, which was April 5, 1919, no
formal contest was entered until the very day set for the hearing; and it is probable
that the attorney for the proponent, believing in good faith that probate would not
be contested, repaired to the court with only one of the three attesting witnesses at
hand, and upon finding that the will was contested, incautiously permitted the case
to go to proof without asking for a postponement of the trial in order that he might
produce all the attesting witnesses.

Although this circumstance may explain why the three witnesses were not
produced, it does not in itself supply any basis for changing the rule expounded in
the case above referred to; and were it not for a fact now to be mentioned, this court
would probably be compelled to reverse this case on the ground that the execution of
the will had not been proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant ih the lower
court either upon the submission of the cause for determination in that court or
upon the occasion of the filing of the motion for a new trial. Accordingly it is insisted
for the appellee that this question cannot now be raised for the first time in this
court. We believe this point is well taken, and the first assignment of error must be
declared not to be well taken. This exact question has been decided by the Supreme
Court of California adversely to the contention of the appellant, and we see no
reason why the same rule of practice should not be observed by us. (Estate of
McCarty, 58 Cal., 335, 337.)
There are at least two reasons why the appellate tribunals are disinclined to
permit certain questions to be raised for the first time in the second instance. In the
first place it eliminates the judicial criterion of the Court of First Instance upon the
point there presented and makes the appellate court in effect a court of first
instance with reference to that point, unless the case is remanded for a new trial. In
the second place, it permits, if it does not encourage, attorneys to trifle with the
administration of justice by concealing from the trial court and from their opponent
the actual point upon which reliance is placed, while they are engaged in other
discussions more simulated than real. These considerations are, we think, decisive.

In ruling upon the point above presented we do not wish to be understood as


laying down any hard and fast rule that would prove an embarrassment to this
court in the administration of justice in the future. In one way or another we are
constantly here considering aspects of cases and applying doctrines which have
escaped the attention of all persons concerned in the litigation below; and this is
necessary if this court is to contribute the part due from it in the correct decision of
the cases brought before it. What we mean to declare is that when we believe that
substantial justice has been done in the Court of First Instance, and the point relied
on for reversal in this court appears to be one which ought properly to have been
presented in that court, we will in the exercise of a sound discretion ignore such
question upon appeal; and this is the more proper when the question relates a defect
which might have been cured in the Court of First Instance if attention had been
called to it there. In the present case, if the appellant had raised this question in the
lower court, either at the hearing or upon a motion for a new trial, that court would
have had the power, and it would have been its duty, considering the tardy
institution of the contest, to have granted a new trial in order that all the witnesses
to the will might be brought into court. But instead of thus calling the error to the
attention of the court and his adversary, the point is first raised by the appellant in
this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado,supra, contains nothing
inconsistent with the ruling we now make, for it appears from the opinion in that
case that the proponent of the will had obtained an order for a republication and
new trial for the avowed purpose of presenting the two additional attesting
witnesses who had not been previously examined, but nevertheless subsequently

failed without any apparent reason to take their testimony. Both parties in that case
were therefore fully apprised that the question of the number of witnesses necessary
to prove the will was in issue in the lower court.
The second point involved in this case is whether, under section 618 of the Code
of Civil Procedure, as amended by Act No. 2645, it is essential to the validity of a
will in this jurisdiction that the names of the testator and the instrumental
witnesses should be written on the left margin of each page, as required in said Act,
and not upon the right margin, as in the will now before us; and upon this we are of
the opinion that the will in question is valid. It is true that the statute says that the
testator and the instrumental witnesses shall sign their names on the left margin of
each and every page; and it is undeniable that the general doctrine is to the effect
that all statutory requirements as to the execution of wills must be fully complied
with. The same doctrine is also deducible from cases heretofore decided by this
court.
Still some details at times creep into legislative enactments which are so trivial
that it would be absurd to suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect that the signatures of the
testator and witnesses shall be written on the left margin of each pagerather than
on the right marginseems to be of this character. So far as concerns the
authentication of the will, and of every part thereof, it can make no possible
difference whether the names appear on the left or no the right margin, provided
they are on one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided
March 23,1918, not reported), this court declared a will void which was totally
lacking in the signatures required to be written on its several pages; and in the case

of Re: estate of Saguinsin (41 Phil., 875), a will was likewise declared void which
contained the necessary signatures on the margin of each leaf (folio), but not in the
margin of each page containing written matter.
The instrument now before us contains the necessary signatures on every page,
and the only point of deviation from the requirement of the statute is that these
signatures appear in the right margin instead of the left. By the mode of signing
here adopted every page and provision of the will is authenticated and guarded from
possible alteration in exactly the same degree that it would have been protected by
being signed in the left margin; and the resources of casuistry could be exausted
without discovering the slightest difference between the consequences of affixing the
signatures in one margin or the other.
The same could not be said of a case like that of Estate of Saguinsin, supra,
where only the leaves, or alternate pages, were signed and not each written page;
for as observed in that case by our late lamented Chief Justice, it was possible that
in the will as there originally executed by the testatrix only the alternative pages
had been used, leaving blanks on the reverse sides, which conceivably might have
been filled in subsequently.
The controlling considerations on the point now before us were well stated
in Re: will of Abangan (40 Phil., 476, 479), where the court, speaking through Mr.
Justice Avancea, in a case where the signatures were placed at the bottom of the
page and not in the margin, said:
"The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee
their truth and authenticity. Therefore the laws on this subject should be interpreted in
such a way as to attain these primordial ends. But, on the other hand, also one must not

lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation already given assures such ends, any
other interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded."

In the case before us, where ingenuity could not suggest any possible prejudice to
any person, as attendant upon the actual deviation from the letter of the law, such
deviation must be considered too trivial to invalidate the instrument.

No. L-26615. April 30, 1970.


REV. FATHER LUCIO V. GARCIA,ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD
DE
JESUS
AND
DR.JAIME
ROSARIO,
petitioners, vs. HON.CONRADO M. VASQUEZ, as Judge of the Court of First
Instance of Manila, Branch V, and CONSUELO GONZALES VDA. DE PRECILLA,
respondents.
No. L-26884. April 30, 1970.
REV.FATHER LUCIO V. GARCIA,ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD
DE
JESUS
AND
DR.JAIME
ROSARIO,
petitioners, vs. HON.CONRADO ML VASQUEZ, as Judge of the Court of First
Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA,and
CONSUELO GONZALES VDA.DE PRECILLA, respondents.
No. L-27200. April 30, 1970.

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S.


GONZALES
VDA.DE
PRECILLA,
petitioner-administratrix, vs. SEVERINA
NARCISO,ROSA NARCISO, JOSEFINA NARCISO,VICENTE MAURICIO,DELFIN
MAURICIO,REMEDIOS
NARCISO,ENCARNACION,NARCISO,MARIA
NARCISO,EDUARDO NARCISO,FR.LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA,MARIA NATIVIDAD DE JESUS, DR.JAIME DEL ROSARIO, ET AL.,
NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISOMANAHAN, oppositors-appellants.
Succession; Wills; Execution of wills; Where testator is blind, will must be read to him
twice; Reasons.Where the testator is blind, the will must be read to him twice as required
by Article 808 of the Civil Code. The reason for this is to make the provisions thereof known
to him, so that he may be able to object if they are not in accordance with his wishes.
Failure to comply with this requirement makes the will invalid.
Settlement of estate of deceased persons; Administrators;Where administrator holds
adverse interest to estate, he may be removed.Where the administrator hold interest
adverse to the estate or by his conduct, demonstrated his unfitness or unsuitableness to
discharge the trust, he should be removed from the administration from the estate.
Civil actions; Lis pendens; Not applicable where action does not affect real property or
title thereto.Notice of the pendency of an action may be recorded in the office of the
register of deeds of the province in which the property is situated if the action affects the
title or the right of possession of real property. It does not apply where the case is concerned
merely with the correctness of the denial by the probate court of the motion for the removal
of the special administratrix of the estate which does not involve the title to or possession of
real properties of the estate.

APPEAL from an order of the Court of First Instance of Manila. Vasquez, J.


The facts are stated in the opinion of the Court.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, et al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for
respondent Consuelo S. Gonzales Vda. de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila.

Leandro Sevilla & Ramon C. Aquino for petitioner-administratrix.


Castro, Makalintal
Narciso, et al.

&

Associates for

oppositors-appellants

Encarnacion

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, et al.


Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio
Jesus de Praga.
Salonga, Ordoez, Yap, Sicat & Associates foroppositors-appellants Severina
Narciso, et al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositorsappellants Natividad del Rosario-Sarmiento, et al.
REYES, J.B.L., J.:
G.R. No. L-27200 is an appeal from the order of the Court of First Instance of
Manila (in Sp. Proc. No. 62618) admitting to probate the alleged last will and
testament of the late Gliceria Avelino del Rosario, dated 29 December 1960. G.R.
Nos. L-26615 and L-26864 are separate petitions for mandamus filed by certain
alleged heirs of said decedent seeking (1) to compel the probate court to remove
Consuelo S. Gonzales-Precilla as special administratrix of the estate, for conflict of
interest, and to appoint a new one in her stead; and (2) to order the Register of
Deeds of Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736 and
81737, registered in the name of Alfonso Precilla, married to Consuelo Gonzales y
Narciso, and said to be properly belonging to the estate of the deceased Gliceria A.
del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may be
stated as follows:
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September
1965, leaving no descendents, ascendants, brother or sister. At the time of her
death, she was said to be 90 years old more or less, and possessed of an estate
consisting mostly of real properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the


deceased, petitioned the Court of First Instance of Manila for probate of the alleged
last will and testament of Gliceria A. del Rosario, executed on 20 December 1960,
and for her appointment as special administratrix of the latters estate, said to be
valued at about P100,000.00, pending the appointment of a regular administrator
thereof.
The petition was opposed separately by several groups of alleged heirs: (1) Rev.
Fr. Lucio V. Garcia, a legatee named in an earlier will executed by Gliceria A. del
Rosario on 9 June 1956; (2) Jaime Rosario and children, relatives and legatees in
both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad de
Jesus, wards of the deceased and legatees in the 1956 and 1960 wills; (3) Remedios,
Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del RosarioSarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa
and Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio,the
latter five groups of persons all claiming to be relatives of Dona Gliceria within the
fifth civil degree. The oppositions invariably charged that the instrument executed
in 1960 was not intended by the deceased to be her true will; that the signatures of
the deceased appearing in the will was procured through undue and improper
pressure and influence on the part of the beneficiaries and/or other persons; that the
testatrix did not know the object of her bounty; that the instrument itself reveals
irregularities in its execution, and that the formalities required by law for such
execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the
deceased, joined the group of Dr. Jaime Rosario in registering opposition to the
appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special
administratrix, on the ground that the latter possesses interest adverse to the
estate. After the parties were duly heard, the probate court, in its order of 2 October
1965, granted petitioners prayer and appointed her special administratrix of the
estate upon a bond for P30,000.00. The order was premised on the fact the
petitioner was managing the properties belonging to the estate even during the
lifetime of the deceased, and to appoint another person as administrator or coadministrator at that stage of the proceeding would only result in further confusion
and difficulties.

On 30 September 1965, oppositors Jaime Rosario, et al. filed with the probate
court an urgent motion to require the Hongkong & Shanghai Bank to report all
withdrawals made against the funds of the deceased after 2 September 1965. The
court denied this motion on 22 October 1965 for being premature, it being unaware
that such deposit in the name of the deceased existed.
1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and
children, Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia,
petitioned the court for the immediate removal of the special administrartrix. It was
their claim that the special administratrix and her deceased husband, Alfonso
Precilla, had caused Gliceria A. del Rosario to execute a simulated and fraudulent
deed of absolute sale dated 10 January 1961 allegedly conveying unto said spouses
for the paltry sum of P30,000.00 ownership of 3 parcels of land and the
improvements thereon located on Quiapo and San Nicolas, Manila, with a total
assessed value of P334,050.00. Oppositors contended that since it is the duty of the
administrator to protect and conserve the properties of the estate, and it may
become necessary that an action for the annulment of the deed of sale and for
recovery of the aforementioned parcels of land be filed against the special
administratrix, as wife and heir of Alfonso Precilla, the removal of the said
administratrix was imperative.
2

On 17 December 1965, the same oppositors prayed the court for an order,
directing the Special Administratrix to deposit with the Clerk of Court all
certificates of title belonging to the estate. It was alleged that on 22 October 1965,
or after her appointment, petitioner Consuelo Gonzales Vda. de Precilla, in her
capacity as special administratrix of the estate of the deceased Gliceria A. del
Rosario, filed with Branch IV of the Court of First Instance of Manila a motion for
the issuance of new copies of the owners duplicates of certain certificates of title in
the name of Gliceria del Rosario, supposedly needed by her in the preparation of
the inventory of the properties constituting the estate. The motion having been
granted, new copies of the owners duplicates of certificates appearing the name of
Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204) were
issued on 15 November 1965. On 8 December 1965, according to the oppositors, the
same special administratrix presented to the Register of Deeds the deed of sale
involving properties covered by TCT Nos. 66201, 66202 and 66204 supposedly
executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso Precilla,
and, in consequence, said certificates of title were cancelled and new certificates

(Nos. 81735, 81736 and 81737) were issued in the name of Alfonso Precilla, married
to Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will
of Gliceria A. del Rosario (Exhibit D). In declaring the due execution of the will,
the probate court took note that no evidence had been presented to establish that
the testatrix was not of sound mind when the will was executed; that the fact that
she had prepared an earlier will did not prevent her from executing another one
thereafter; that the fact that the 1956 will consisted of 12 pages whereas the 1960
testament was contained in one page does not render the latter invalid; that the
erasures and alterations in the instrument were insignificant to warrant rejection;
that the inconsistencies in the testimonies of the instrumental witnesses which
were noted by the oppositors are even indicative of their truthfulness. The probate
court, also considering that petitioner had already shown capacity to administer the
properties of the estate and that from the provisions of the will she stands as the
person most concerned and interested therein, appointed said petitioner regular
administratrix with a bond for P50,000.00. From this order all the oppositors
appealed, the case being docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors motion of
14 December 1965 for the removal of the then special administratrix, as follows:
It would seem that the main purpose of the motion to remove the special administratrix
and to appoint another one in her stead, is in order that an action may be filed against the
special administratrix for the annulment of the deed of sale executed by the decedent on
January 10, 1961. Uiider existing documents, the properties sold pursuant to the said deed
of absolute sale no longer forms part of the estate. The alleged conflict of interest is
accordingly not between different claimants of the same estate. If it is desired by the
movants that an action be filed by them to annul the aforesaid deed of absolute sale, it is
not necessary that the special administratrix be removed and that another one be appointed
to file such action. Such a course of action would only produce confusion and difficulties in
the settlement of the estate. The movants may file the aforesaid proceedings, preferably in
an independent action, to secure the nullity of the deed of absolute sale even without leave
of this court:

As regard the motion of 17 December 1965 asking for the deposit in court of the
titles in the name of the decedent, the same was also denied, for the reason that if
the movants were referring to the old titles, they could no longer be produced, and if

they meant the new duplicate copies thereof that were issued at the instance of the
special administratrix, there would be no necessity therefor, because they were
already cancelled and other certificates were issued in the name of Alfonso Precilla.
This order precipitated the oppositors filing in this Court of a petition for
mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, et al. vs. Hon. Judge
Conrado M. Vasquez, et al.), which was given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, the
oppositors requested the Register of Deeds of Manila to annotate a notice of lis
pendens in the records of TCT Nos. 81735, 81736, and 81737 the name of Alfonso
Precilla. And when said official refused to do so, they applied to the probate court (in
Sp. Proc. No. 62618) for an order to compel the Register of Deeds to annotate alis
pendens notice in the aforementioned titles contending that the matter of removal
and appointment of the administratrix, involving TCT Nos. 81735, 81736, and
81737, was already before the Supreme Court. Upon denial of this motion on 12
November 1966, oppositors filed another mandamus action, this time againts the
probate court and the Register of Deeds. The case was decided and given due course
in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of the
order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix,
Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956
consisting of 12 pages and written in Spanish, a language that she knew and spoke,
witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and
acknowledged before notary public Jose Ayala; and another dated 29 December
1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente
Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary
public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses
Decena, Lopez and Rosales uniformly declared that they were individually
requested by Alfonso Precilla (the late husband of petitioner special administratrix)
to witness the execution of the last will of Doa Gliceria A. del Rosario; that they
arrived at the house of the old lady at No. 2074 Azcarraga, Manila one after the
other, in the afternoon of 29 December 1960; that the testatrix at the time was

apparently of clear and sound mind, although she was being aided by Precilla when
she walked; that the will, which was already prepared, was first read silently by
the testatrix herself before she signed it; that the three witnesses thereafter signed
the will in the presence of the testatrix and the notary public and of one another.
There is also testimony that after the testatrix and the witnesses to the will
acknowledged the instrument to be their voluntary act and deed, the notary public
asked for their respective residence certificates which were handed to him by
Alfonso Precilla, clipped together; that after comparing them with the numbers
already written on the will, the notary public filled in the blanks in the instrument
with the date, 29 January 1960, before he affixed his signature and seal
thereto, They also testified that on that occasion no pressure or influence has been
exerted by any person upon the testatrix to execute the will.
3

Of course, the interest and active participation of Alfonso Precilla in the signing
of this 1960 will are evident from the records. The will appeared to have been
prepared by one who is not conversant with the spelling of Tagalog words, and it has
been shown that Alfonso Precilia is a Cebuano who speaks Tagalog with a Visayan
accent. The witnesses to the will, two of whom are fellow Visayans, admitted their
relationship or closeness to Precilla. It was Precilla who instructed them to go to
the house of Gliceria del Rosario on 29 December 1960 to witness an important
document, and who took their residence certificates from them a few days before
the will was signed, Precilla had met the notary public and witnesses Rosales and
Lopez at the door of the residence of the old woman; he ushered them to the room at
the second floor where the signing of the document took place; then he fetched
witness Decena from the latters haberdashery shop a few doors away and brought
him to the house of the testatrix. And when the will was actually executed Precilla
was present.
7

10

11

12

13

14

The oppositors-appellants in the present case, however, challenging the


correctness of the probate courts ruling, maintain that on 29 December 1960 the
eyesight of Gliceria del Rosario was so poor and defective that she could not have
read the provisions of the will, contrary to the testimonies of witnesses Decena,
Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very
material and illuminating. Said ophthalmologist, whose expertise was admitted by
both parties, testified, among other things, that when Doa Gliceria del Rosario saw

him for consultation on 11 March 1960 he found her left eye to have cataract
(opaque lens), and that it was above normal in pressure, denoting a possible
glaucoma, a disease that leads to blindness. As to the conditions of her right eye,
Dr. Tamesis declared:
15

16

Q But is there anything here in the entry appearing in the


other documents Exhibits 3-B, 3-C and 3-D from which
you could inform the court as to the condition of the
vision of the patient as to the right eye?
A Under date of August 30, 1960, is the record of refraction,
that is setting of glass by myself which showed that the
right eye with my prescription of glasses had a vision of
20 over 60 (20/60) and for the left eye with her correction
20 over 300 (20/300).
Q In laymans language. Doctor, what is the significance of
that notation that the right had a degree of 20 over 60
(20/60)?
A It meant that that eye at least would be able to recognize
objects or persons at a minimum distance of twenty feet.
Q But would that grade enable the patient to read print?
A Apparently that is only a record for distance vision, for
distance sight, not for near. (pages 20-21, t.s.n., hearing
of 23 March 1966)
The records also show that although Dr. Tamesis operated on the left eye of the
decedent at the Lourdes Hospital on 8 August 1960; as of 23 August 1960, in spite of
the glasses her vision was only counting fingers, at five feet. The crossexamination of the doctor further elicited the following responses:
17

Q After she was discharged from the hospital you prescribed


lenses for her, or glasses?
A After her discharge from the hospital, she was coming to
my clinic for further examination and then sometime later
glasses were prescribed.
xxx

xxx

xxx

xxx

Q And the glasses prescribed by you enabled her to read,


Doctor?
A As far as my record is concerned, with the glasses for the
left eye which I prescribedthe eye which I operated
she could see only forms but not read. That is on the left
eye.
Q How about the right eye?
A The same, although the vision on the right eye is even
better than the left eye. (pages 34, 35, t.s.n., hearing of
23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29
November 1965 certifying that Gliceria del Rosario was provided with aphakic
lenses and had been under medical supervision up to 1963 with apparently good
vision, the doctor had this to say:

Q When you said that she had apparently good vision you
mean that she was able to read?

A No, not necessarily, only able to go around, take care of


herself and see. This I can tell you, this report was made
on pure recollections and I recall she was using her
glasses although I recall also that we have to give her
medicines to improve her vision, some medicines to
improve her identification some more.
xxx

xxx

xxx

xxx

Q What about the vision in the right eye, was that corrected
by the glasses?
A Yes, with the new prescription which I issued on 30
August 1960. It is in the clinical record.
Q The vision in the right eye was corrected?
A Yes. That is the vision for distant objects. (pages 38, 39,
40, ts.n., hearing of 23 March 1966).
That is the vision for distant objects. (pages 38, 39, 40, ts.n., hearing of 23 March
1966). The foregoing testimony of the ophthalmologist who treated the deceased
and, therefore, has first hand knowledge of the actual condition of her eyesight from
August, 1960 up to 1963, fully establish the fact that notwithstanding the operation
and removal of the cataract in her left eye and her being fitted with aphakic lens
(used by cataract patients), her vision remained mainly for viewing distant objects
and not for reading print. Thus, the conclusion is inescapable that with the
condition of her eyesight in August, 1960, and there is no evidence that it had
improved by 29 December 1960, Gliceria del Rosario was incapable of reading, and
could not have read the provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instrumental witnesses stated that she
read the instrument silently (t.s.n., pages 164-165). which is a conclusion and not
a fact.

Against the background of defective eyesight of the alleged testatrix, the


appearance of the will, Exhibit D, acquires striking significance. Upon its face, the
testamentary provisions, the attestation clause and acknowledgment were crammed
together into a single sheet of paper, so much so that the words had to be written
very close to the top, bottom and two sides of the paper, leaving no margin
whatsoever; the word and had to be written by the symbol &, apparently to save
on space. Plainly, the testament was not prepared with any regard for the defective
vision of Doa Gliceria. Further, typographical errors like HULINH for
HULING (last), Alfonsa for Alfonso, MERCRDRS for MERCEDES,
instrumental for Instrumental, and acknowledged for acknowledge, remained
unconnected, thereby indicating that execution thereof must have been
characterized by haste. It is difficult to understand that so important a document
containing the final disposition of ones worldly possessions should be embodied in
an informal and untidily written instrument; or that the glaring spelling errors
should have escaped her notice if she had actually retained the ability to read the
purported will and had done so. The record is thus convincing that the supposed
testatrix could not have physically read or understood the alleged testament,
Exhibit D, and that its admission to probate was erroneous and should be
reversed.
That Doa Gliceria should be able to greet her guests on her birthday, arrange
flowers and attend to kitchen tasks shortly prior to the alleged execution of the
testament Exhibit D, as appears from the photographs, Exhibits E to E-l, in no
way proves fchat she was able to read a closely typed page, since the acts shown do
not require vision at close range. It must be remembered that with the natural
lenses removed, her eyes had lost the power of adjustment to near vision, the
substituted glass lenses being rigid and uncontrollable by her. Neither is the signing
of checks (Exhibits G to G-3) by her indicative of ability to see at normal reading
distances. Writing or signing of ones name, when sufficiently practiced, becomes
automatic, so that, one need only to have a rough indication of the place where the
signature is to be affixed in order to be able to write it. Indeed, a close examination
of the checks, amplified in the photograph, Exhibit O, et seq., reinforces the
contention of oppositors that the alleged testatrix could not see at normal reading
dis-, tance: the signatures in the checks are written far above the printed base,
lines, and the names of the payees as well as the amounts written do not appear to
be in the handwriting of the alleged testatrix, being in a much firmer and more fluid
hand than hers.

Thus, for all intents and purposes of the rules on probate, the deceased Gliceria
del Rosario was, as appellant oppositors contend, not unlike a blind testator, and
the due execution of her will would have required observance of the provisions of
Article 808 of the Civil Code.
ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.

The rationale behind the requirement of reading the will to the testator if he is
blind or incapable of reading the will himself (as when he is illiterate), is to make
the provisions thereof known to him, so that he may be able to object if they are not
in accordance with his wishes. That the aim of the law is to insure that the
dispositions of the will are properly communicated to and understood by the
handicapped testator, thus making them truly reflective of his desire, is evidenced
by the requirement that the will should be read to the latter, not only once but
twice, by two different persons, and that the witnesses have to act within the range
of his (the testators) other senses.
18

19

In connection with the will here in question, there is nothing in the records to
show that the above requisites have been complied with. Clearly, as already stated,
the 1960 will sought to be probated suffers from infirmity that affects its due
execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, et al., against
the denial by the probate court of their petition for the removal of Consuelo
Gonzales Vda. de Precilla as special administratrix of the estate of the deceased
Doa Gliceria (Petition, G.R. No. L-26615, Annex B).
The oppositors petition was based allegedly on the existence in the special
administratrix of an interest adverse to that of the estate. It was their contention
that through fraud her husband had caused the deceased Gliceria del Rosario to
execute a deed of sale, dated 10 January 1961, by virtue of which the latter
purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo Gonzales y
Narciso, the ownership of 3 parcels of land and the improvements thereon, assessed
at P334,050.00, for the sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966
(Annex P, Petition) reasoned out that since the properties were already sold no
longer form part of the estate. The conflict of interest would not be between the
estate and third parties, but among the different claimants of said properties, in
which case, according to the court, the participation of the special administratrix in
the action for annulment that may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being questioned
was precisely the validity of the conveyance or sale of the properties. In short, if
proper, the action for annulment would have to be undertaken on behalf of the
estate by the special administratrix, affecting as it does the property or rights of the
deceased. For the rule is that only where there is no special proceeding for the
settlement of the estate of the deceased may the legal heirs commence an action
arising out of a right belonging to their ancestor.
20

21

There is no doubt that to settle the question of the due execution and validity of
the deed of sale, an ordinary and separate action would have to be instituted, the
matter not falling within the competence of the probate court. Considering the facts
then before it, i.e., the alleged deed of sale having been executed by Gliceria del
Rosario on 10 January 1961, when she was already practically blind; and that the
consideration of P30,000.00 seems to be unconscionably small for properties with a
total assessed value of P334,05.00, there was likelihood that a case for annulment
might indeed be filed against the estate or heirs of Alfonso Precilla. And the
administratrix, being the widow and heir of the alleged transferee, cannot be
expected to sue herself in an action to recover property that may turn out to belong
to the estate. Not only this, but the conduct of the special administratrix in
securing new copies of the owners duplicates of TCT Nos. 66201, 66202, and 66204,
without the courts knowledge or authority, and on the pretext that she needed them
in the preparation of the inventory of the estate, when she must have already
known by then that the properties covered therein were already conveyed to her
husband by the deceased, being the latters successor, and having the contract bind
the land through issuance of new titles in her husbands name cannot but expose
her to the charge of unfitness or unsuitableness to discharge the trust, justifying her
removal from the administration of the estate.
22

22a

With respect to the orders of the court a quo denying (1) the oppositors motion to
require the Hongkong and Shanghai Bank to report all withdrawals made against

the funds of the deceased after 2 September 1965 and (2) the motion for annotation
of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the same are to be
affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex H) that it
could not have taken action on the complaint against the alleged withdrawals from
the bank deposits of the deceased, because as of that time the court had not yet been
apprised that such deposits exist. Furthermore, as explained by the special
administratrix in her pleading of 30 October 1965, the withdrawals referred to by
the oppositors could be those covered by checks issued in the name of Gliceria del
Rosario during her lifetime butcleared only after her death. That explanation, which
not only appears plausible but has not been rebutted by the petitioners-oppositors,
negates any charge of grave abuse in connection with the issuance of the order here
in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of
Court are clear: notice of the pendency of an action may be recorded in the office of
the register of deeds of the province in which the property is situated, if the action
affects the title or the right of possession of (such) real property. In the case at
bar, the pending action which oppositors seek to annotate in the records of TCT Nos.
81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No.
L-26615). As previously discussed in this opinion, however, that case is concerned
merely with the correctness of the denial by the probate court of the motion for the
removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the
estate of the late Gliceria del Rosario. In short, the issue in controversy there is
simply the fitness or unfitness of said special administratrix to continue holding the
trust; it does not involve or affect at all the title to, or possession of, the properties
covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such
case (L-26615) is not an action that can properly be annotated in the record of the
titles to the properties.
23

FOR THE FOREGOING REASONS, the order of the court below allowing to
probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set
aside. The petition in G.R. No. L-26615 being meritorious, the appealed order is set
aside and the court below is ordered to remove the administratrix, Consuelo
Gonzales Vda. de Precilla, and appoint one of the heirs intestate of the deceased
Doa Gliceria Avelino del Rosario as special administrator for the purpose of

instituting action on behalf of her estate to recover the properties allegedly sold by
her to the late Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is
dismissed. No costs.

concur.

Concepcion, C.J., Dizon, Makalintal. Fernando,Teehankee and Villamor, JJ.,

Zaldivar and Castro, JJ., took no part.


Barredo, J., is on leave.
Order reversed and set aside.
Notes.(a) Adverse interest as ground for removal an executor or administrator.
Conflict between the interest of the executor or administrator and that of the decedent in
property is ground for the removal of the executor or administrator. Such conflict exists
where the executor or administrator asserts personal title to certain stocks standing in the
name of the decedent (In re Estate of Borromeo, L-6363, Sept. 15, 1955, 51 O.G. 5145). It
may not, however be said to exist simply because the attorney representing the
administrator was formerly administrator of the same estate who was removed by the court
on the ground of adverse interest (Degala vs. Ceniza, 78 Phil. 791).

G.R. No. 74695. September 14, 1993.

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido
Alvarado, CESAR ALVARADO, petitioner, vs. HON. RAMON G. GAVIOLA, JR.,
Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR
INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division
(Civil Cases), and BAYANI MA. RINO, respondents.
Civil Law; Wills; Article 808 applies not only to blind testators but also, to those who,
for one reason or another, are incapable of reading their wills.Clear from the foregoing is
that Art. 808 applies not only to blind testators but also to those who, for one reason or
another, are incapable of reading the(ir) will(s). Since Brigido Alvarado was incapable of
reading the final drafts of his will and codicil on the separate occasions of their execution
due to his poor, defective, or blurred vision, there can be no other course for us but to

conclude that Brigido Alvarado comes within the scope of the term blind as it is used in
Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or
not the lawyer who drafted the will and codicil did so conformably with his instructions.
Same; Same; Same; The purpose of reading the will twice is to make known to the
incapacitated testator the contents of the document before signing and to give him an
opportunity to object if anything is contrary to his instructions.Article 808 requires that in
case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the
instrumental witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated testator the contents of
the document before signing and to give him an opportunity to object if anything is contrary
to his instructions.
Same; Same; Same; Same; Court held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been satisfied.This Court has
held in a number of occasions that substantial compliance is acceptable where the purpose
of the law has been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of fraud and trickery
but are never intended to be so rigid and inflexible as to destroy the testamentary privilege.
Same; Same; Same; Same; Although there should be strict compliance with the
substantial requirements of the law in order to insure the authenticity of the will, the formal
imperfections should be brushed aside when they do not affect its purpose and which, when
taken into account, may only defeat the testators will.The spirit behind the law was served
though the letter was not. Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the will, the formal
imperfections should be brushed aside when they do not affect its purpose and which, when
taken into account, may only defeat the testators will.

PETITION for review on certiorari of the decision of the Court of Appeals.


The facts are stated in the opinion of the Court.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
which affirmed the Order dated 27 June 1983 of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and testament with codicil of the
late Brigido Alvarado.
1

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will
entitled Huling Habilin wherein he disinherited an illegitimate son (petitioner)
and expressly revoked a previously executed holographic will at the time awaiting
probate before Branch 4 of the Regional Trial Court of Sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by
private respondent who were present at the execution, the testator did not read the
final draft of the will himself. Instead, private respondent, as the lawyer who
drafted the eightpaged document, read the same aloud in the presence of the
testator, the three instrumental witnesses and the notary public. The latter four
followed the reading with their own respective copies previously furnished them.
Meanwhile, Brigidos holographic will was subsequently admitted to probate on 9
December 1977. On the 29th day of the same month, a codicil entitled Kasulatan
ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa
Nobiembre 5, 1977 ni Brigido Alvarado was executed changing some dispositions in
the notarial will to generate cash for the testators eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not personally read
the final draft of the codicil. Instead, it was private respondent who read it aloud in
his presence and in the presence of the three instrumental witnesses (same as those
of the notarial will) and the notary public who followed the reading using their own
copies.
A petition for the probate of the notarial will and codicil was filed upon the
testators death on 3 January 1979 by private respondent as executor with the
Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. Petitioner, in
turn, filed an Opposition on the following grounds: that the will sought to be
probated was not executed and attested as required by law; that the testator was
insane or otherwise mentally incapacitated to make a will at the time of its
execution due to senility and old age; that the will was executed under duress, or
5

influence of fear or threats; that it was procured by undue and improper pressure
and influence on the part of the beneficiary who stands to get the lions share of the
testators estate; and lastly, that the signature of the testator was procured by fraud
or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in
the Opposition, a Probate Order was issued on 27 June 1983 from which an appeal
was made to respondent court. The main thrust of the appeal was that the deceased
was blind within the meaning of the law at the time his Huling Habilin and the
codicil attached thereto were executed; that since the reading required by Art. 808 of
the Civil Code was admittedly not complied with, probate of the deceaseds last will
and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with
the following findings: that Brigido Alvarado was not blind at the time his last will
and codicil were executed; that assuming his blindness, the reading requirement of
Art. 808 was substantially complied with when both documents were read aloud to
the testator with each of the three instrumental witnesses and the notary public
following the reading with their respective copies of the instruments. The appellate
court then concluded that although Art. 808 was not followed to the letter, there was
substantial compliance since its purpose of making known to the testator the
contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for
purposes of Art. 808 at the time his Huling Habilin and its codicil were executed?
If so, was the doublereading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were executed.
However, his vision on both eyes was only of counting fingers at three (3) feet by
reason of the glaucoma which he had been suffering from for several years and even
prior to his first consultation with an eye specialist on 14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido
as a blind testator under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.

Petitioner contends that although his father was not totally blind when the will and
codicil were executed, he can be so considered within the scope of the term as it is
used in Art. 808. To support his stand, petitioner presented before the trial court a
medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of
Opthalmology (Philippine Eye Research Institute), the contents of which were
interpreted in laymans terms by Dr. Ruperto Roasa, whose expertise was admitted
by private respondent. Dr. Roasa explained that although the testator could
visualize fingers at three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his first consultation.
6

On the other hand, the Court of Appeals, contrary to the medical testimony, held
that the testator could still read on the day the will and the codicil were executed
but chose not to do so because of poor eyesight. Since the testator was still capable
of reading at that time, the court a quo concluded that Art. 808 need not be
complied with.
9

We agree with petitioner in this respect.


Regardless of respondents staunch contention that the testator was still capable
of reading at the time his will and codicil were prepared, the fact remains and this
was testified to by his witnesses, that Brigido did not do so because of his
poor, defective, or blurred vision making it necessary for private respondent
to do the actual reading for him.
10

11

12

The following pronouncement in Garcia vs. Vasquez provides an insight into the
scope of the term blindness as used in Art. 808, to wit:
13

The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with his
wishes x x x x

Clear from the foregoing is that Art. 808 applies not only to blind testators but also
to those who, for one reason or another, are incapable of reading the(ir) will(s).

Since Brigido Alvarado was incapable of reading the final drafts of his will and
codicil on the separate occasions of their execution due to his poor, defective, or
blurred vision, there can be no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term blind as it is used in Art. 808. Unless
the contents were read to him, he had no way of ascertaining whether or not the
lawyer who drafted the will and codicil did so conformably with his instructions.
Hence, to consider his will as validly executed and entitled to probate, it is essential
that we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall
be read twice; once, by one of the instrumental witnesses and, again, by the notary
public before whom the will was acknowledged. The purpose is to make known to
the incapacitated testator the contents of the document before signing and to give
him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary
public and an instrumental witness, it was the lawyer (private respondent) who
drafted the eight-paged will and the five-paged codicil who read the same aloud to
the testator, and read them only once, not twice as Art. 808 requires. Private
respondent however insists that there was substantial compliance and that the
single reading suffices for purposes of the law. On the other hand, petitioner
maintains that the only valid compliance is a strict compliance or compliance to the
letter and since it is admitted that neither the notary public nor an instrumental
witness read the contents of the will and codicil to Brigido, probate of the latters
will and codicil should have been disallowed.
We sustain private respondents stand and necessarily, the petition must be
denied.
This Court has held in a number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason being that
the solemnities surrounding the execution of wills are intended to protect the
testator from all kinds of fraud and trickery but are never intended to be so rigid
and inflexible as to destroy the testamentary privilege.
14

In the case at bar, private respondent read the testators will and codicil aloud in
the presence of the testator, his three instrumental witnesses, and the notary

public. Prior and subsequent thereto, the testator affirmed, upon being asked, that
the contents read corresponded with his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and petitioner does not so allege,
that the contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the Huling Habilin,
the day of the execution was not the first time that Brigido had affirmed the truth
and authenticity of the contents of the draft. The uncontradicted testimony of Atty.
Rino is that Brigido Alvarado already acknowledged that the will was drafted in
accordance with his expressed wishes even prior to 5 November 1977 when Atty.
Rino went to the testators residence precisely for the purpose of securing his
conformity to the draft.
15

Moreover, it was not only Atty. Rino who read the documents on 5 November and
29 December 1977. The notary public and the three instrumental witnesses likewise
read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the
notary public) and Dr. Crescente O. Evidente (one of the three instrumental
witnesses and the testators physician) asked the testator whether the contents of
the documents were of his own free will. Brigido answered in the affirmative. With
four persons following the reading word for word with their own copies, it can be
safely concluded that the testator was reasonably assured that what was read to
him (those which he affirmed were in accordance with his instructions), were the
terms actually appearing on the typewritten documents. This is especially true
when we consider the fact that the three instrumental witnesses were persons
known to the testator, one being his physician (Dr. Evidente) and another
(Potenciano C. Ranieses) being known to him since childhood.
16

The spirit behind the law was served though the letter was not. Although there
should be strict compliance with the substantial requirements of the law in order to
insure the authenticity of the will, the formal imperfections should be brushed aside
when they do not affect its purpose and which, when taken into account, may only
defeat the testators will.
17

As a final word to convince petitioner of the propriety of the trial courts Probate
Order and its affirmance by the Court of Appeals, we quote the following
pronouncement inAbangan v. Abangan, to wit:
18

The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore the laws on the subject should be interpreted in such a
way as to attain these primordial ends. But, on the other hand, also one must not lose sight
of the fact that it is not the object of the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testators will, must be disregarded (italics
supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in
his Huling Habilin and the codicil attached thereto. We are unwilling to cast these
aside for the mere reason that a legal requirement intended for his protection was
not followed strictly when such compliance had been rendered unnecessary by the
fact that the purpose of the law, i.e., to make known to the incapacitated testator
the contents of the draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent
Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time
that this case has remained pending, this decision is immediately executory. Costs
against petitioner.
SO ORDERED.
Cruz (Chairman), Grio-Aquino, Davide, Jr. andQuiason, JJ., concur.
Petition denied. Appealed decision affirmed.
Note.When the authenticity of the will is not being questioned, there is no
necessity of presenting the three witnesses required under Article 811 of the Civil
Code (Rivera vs. Intermediate Appellate Court, 182 SCRA 322).
o0o

G.R. No. 103554. May 28, 1993.

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN


CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO,
SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA,
QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA ABAPO VELANO, and CONSESO CANEDA, represented herein by
his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA,
petitioners, vs. HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
**

Wills and Succession; There are two (2) kinds of wills.In addition, the ordinary will
must be acknowledged before a notary public by the testator and the attesting witnesses,
hence it is likewise known as a notarial will. Where the testator is deaf or a deaf-mute,
Article 807 requires that he must personally read the will, if able to do so. Otherwise, he
should designate two persons who will read the will and communicate its contents to him in
a practicable manner. On the other hand, if the testator is blind, the will should be read to
him twice; once, by anyone of the witnesses thereto, and then again, by the notary public

before whom it is acknowledged. The other kind of will is the holographic will, which Article
810 defines as one that is entirely written, dated, and signed by the hand of the testator
himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of wills is that they should be in writing and must have
been executed in a language or dialect known to the testator.
Same; Attestation clause valid even if in a language not known to testator.However, in
the case of an ordinary or attested will, its attestation clause need not be written in a
language or dialect known to the testator since it does not form part of the testamentary
disposition. Furthermore, the language used in the attestation clause likewise need not
even be known to the attesting witnesses. The last paragraph of Article 805 merely requires
that, in such a case, the attestation clause shall be interpreted to said witnesses.
Same; Purposes of attestation clause.The purpose of the law in requiring the clause to
state the number of pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent any increase or decrease
in the pages; whereas the subscription of the signatures of the testator and the attesting
witnesses is made for the purpose of authentication and identification, and thus indicates
that the will is the very same instrument executed by the testator and attested to by the
witnesses.
Same; Same.Further, by attesting and subscribing to the will, the witnesses thereby
declare the due execution of the will as embodied in the attestation clause. The attestation
clause, therefore, provides strong legal guaranties for the due execution of a will and to
insure the authenticity thereof. As it appertains only to the witnesses and not to the
testator, it need be signed only by them. Where it is left unsigned, it would result in the
invalidation of the will as it would be possible and easy to add the clause on a subsequent
occasion in the absence of the testator and the witnesses.
Same; Words and Phrases; Attestation and Subscription distinguished.It will be
noted that Article 805 requires that the witnesses should both attest and subscribe to the
will in the presence of the testator and of one another. Attestation and subscription
differ in meaning. Attestation is the act of the senses, while subscription is the act of the
hand. The former is mental, the latter mechanical, and to attest a will is to know that it
was published as such, and to certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to write on the same paper
the names of the witnesses, for the sole purpose of identification.
Same; Attestation clause which does not state that testament was signed by the
witnesses in the presence of one another and of the testator renders the will null and void.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is
the fact that while it recites that the testator indeed signed the will and all its pages in the
presence of the three attesting witnesses and states as well the number of pages that were
used, the same does not expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the presence of the testator and of each
other. The phrase and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin, obviously refers to the testator and
not the instrumental witnesses as it is immediately preceded by the words as his Last Will
and Testament. On the other hand, although the words in the presence of the testator and
in the presence of each and all of us may, at first blush, appear to likewise signify and refer
to the witnesses, it must, however, be interpreted as referring only to the testator signing in
the presence of the witnesses since said phrase immediately follows the words he has
signed the same and every page thereof, on the spaces provided for his signature and on the
left hand margin. What is then clearly lacking, in the final logical analysis, is the statement
that the witnesses signed the will and every page thereof in the presence of the testator and of
one another. It is our considered view that the absence of that statement required by law is
a fatal defect or imperfection which must necessarily result in the disallowance of the will
that is here sought to be admitted to probate.
Same; Mere defects in form in the attestation clause do not render will void.We stress
once more that under Article 809, the defects or imperfections must only be with respect to
the form of the attestation or the language employed therein. Such defects or imperfections
would not render a will invalid should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard, however, the manner of proving the
due execution and attestation has been held to be limited to merely an examination of the
will itself without resorting to evidence aliunde, whether oral or written.
Same; Same; Defects in attestation clause which require submission of parol evidence
not mere defects of form.In the case at bar, contrarily, proof of the acts required to have
been performed by the attesting witnesses can be supplied only by extrinsic evidence
thereof, since an overall appreciation of the contents of the will yields no basis whatsoever
from which such facts may be plausibly deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the compliance with such requirements
by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic
evidence to prove the same and would accordingly be doing by indirection what in law he
cannot do directly.
Same; Same; Same.It may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the

allowance to probate of the will being assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the invalidation of the attestation
clause and ultimat ely, of the will itself.

PETITION for review on certiorari of the decision of the Court of Appeals.


The facts are stated in the opinion of the Court.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondent.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari
is the issue of whether or not the attestation clause contained in the last will and
testament of the late Mateo Caballero complies with the requirements of Article
805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without
any children and already in the twilight years of his life, executed a last will and
testament at his residence in Talisay, Cebu before three attesting witnesses,
namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said
testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary
public, Atty. Filoteo Manigos, in the preparation of that last will. It was declared
therein, among other things, that the testator was leaving by way of legacies and
devises his real and personal properties to Presentacion Gaviola, Angel Abatayo,
Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all
of whom do not appear to be related to the testator.
1

Four months, later, or on April 4, 1979, Mateo Caballero himself filed a petition
docketed as Special Proceeding No. 3899-R before Branch II of the then Court of
First Instance of Cebu seeking the probate of his last will and testament. The
probate court set the petition for hearing on August 20, 1979 but the same and
subsequent scheduled hearings were postponed for one reason or another. On May
29, 1980, the testator passed away before his petition could finally be heard by the
probate court. On February 25, 1981, Benoni Cabrera, one of the legatees named in
the will, sought his appointment as special administrator of the testators estate,
3

the estimated value of which was P24,000.00, and he was so appointed by the
probate court in its order of March 6, 1981.
4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,


instituted a second petition, entitled In the Matter of the Intestate Estate of Mateo
Caballero and docketed as Special Proceeding No. 3965-R, before Branch IX of the
aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners
had their said petition for intestate proceedings consolidated with Special
Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and
opposed thereat the probate of the testators will and the appointment of a special
administrator for his estate.
5

Benoni Cabrera died on February &, 1982 hence the probate court, now known as
Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as
special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an
order for the return of the records of Special Proceeding No. 3965-R to the archives
since the testate proceedings for the probate of the will had to be heard and resolved
first. On March 26, 1984 the case was reraffled and eventually assigned to Branch
XII of the Regional Trial Court of Cebu where it remained until the conclusion of
the probate proceedings.
6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the allowance of the testators will on the
ground that on the alleged date of its execution, the testator was already in a poor
state of health such that he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the signature of the testator
therein.
7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary
public, Atty. Filoteo Manigos, testified that the testator executed the will in question
in their presence while he was of sound and disposing mind and that, contrary to
the assertions of the oppositors, Mateo Caballero was in good health and was not
unduly influenced in any way in the execution of his will. Labuca also testified that
he and the other witnesses attested and signed the will in the presence of the
testator and of each other. The other two attesting witnesses were not presented in
the probate hearing as they had died by then.
8

On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:
x x x The self-serving testimony of the two witnesses of the oppositors cannot overcome the
positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the
Court that indeed Mateo Caballero executed this Last Will and Testament now marked
Exhibit C on December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the filing of the original
petition now marked Exhibit D clearly underscores the fact that this was indeed his Last
Will. At the start, counsel for the oppositors manifested that he would want the signature of
Mateo Caballero in Exhibit C examined by a handwriting expert of the NBI but it would
seem that despite their avowal and intention for the examination of this signature of Mateo
Caballero in Exhibit C, nothing came out of it because they abandoned the idea and
instead presented Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that Exhibit C is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of law.
9

Undaunted by said judgment of the probate court, petitioners elevated the case to
the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will
in question is null and void for the reason that its attestation clause is fatally
defective since it fails to specifically state that the instrumental witnesses to the
will witnessed the testator signing the will in their presence and that they also
signed the will and all the pages thereof in the presence of the testator and of one
another.
On October 15, 1991, respondent court promulgated its decision affirming that of
the trial court, and ruling that the attestation clause in the last will of Mateo
Caballero substantially complies with Article 805 of the Civil Code, thus:
10

The question therefore is whether the attestation clause in question may be considered as
having substantially complied with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim to be defective is we do certify
that the testament was read by him and the testator, Mateo Caballero, has published unto
us the foregoing will consisting of THREE PAGES, including the acknowledgment, each
page numbered correlatively in letters on the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page thereof, on the spaces provided for

his signature and on the left hand margin in the presence of the said testator and in the
presence of each and all of us (Italics supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to
indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of the law
would have it that the testator signed the will in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another. If not completely or ideally perfect in
accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in substantial
compliance with the requirement of the law.
11

Petitioners moved for the reconsideration of said ruling of respondent court, but the
same was denied in the latters resolution of January 14, 1992, hence this appeal
now before us.
12

Petitioners assert that respondent court has ruled upon said issue in a manner not
in accord with the law and the settled jurisprudence on the matter and are now
questioning once more, on the same ground as that raised before respondent court,
the validity of the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter
explain, after some prefatory observations which we feel should be made in aid of
the rationale for our resolution of the controversy.
1. 1.A will has been defined as a species of conveyance whereby a person is permitted,
with the formalities prescribed by law, to control to a certain degree the disposition
of his estate after his death. Under the Civil Code, there are two kinds of wills
which a testator may execute. The first kind is the ordinary or attested will, the
execution of which is governed by Articles 804 to 809 of the Code. Article 805
requires that:
13

14

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testators 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.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the

last, on the left margin, and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by the
testator and the attesting witnesses, hence it is likewise known as a notarial will.
Where the testator is deaf or a deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two persons
who will read the will and communicate its contents to him in a practicable manner.
On the other hand, if the testator is blind, the will should be read to him twice;
once, by anyone of the witnesses thereto, and then again, by the notary public before
whom it is acknowledged.
15

16

The other kind of will is the holographic will, which Article 810 defines as one
that is entirely written, dated, and signed by the hand of the testator himself. This
kind of will, unlike the ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of wills is that they should be in writing and
must have been executed in a language or dialect known to the testator.
17

However, in the case of an ordinary or attested will, its attestation clause need
not be written in a language or dialect known to the testator since it does not form
part of the testamentary disposition. Furthermore, the language used in the
attestation clause likewise need not even be known to the attesting witnesses. The
last paragraph of Article 805 merely requires that, in such a case, the attestation
clause shall be interpreted to said witnesses.
18

An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the
manner of the execution of the same. It is a separate memorandum or record of the
facts surrounding the conduct of execution and once signed by the witnesses, it gives
19

affirmation to the fact that compliance with the essential formalities required by
law has been observed. It is made for the purpose of preserving in a permanent
form a record of the fact that attended the execution of a particular will, so that in
case of failure of the memory of the attesting witnesses, or other casualty, such facts
may still be proved.
20

21

Under the third paragraph of Article 805, such a clause, the complete lack of
which would result in the invalidity of the will, should state (1) the number of pages
used upon which the will is written; (2) that the testator signed, or expressly caused
another to sign, the will and every page thereof in the presence of the attesting
witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of
the will and all its pages, and that said witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
22

The purpose of the law in requiring the clause to state the number of pages on
which the will is written is to safeguard against possible interpolation or omission of
one or some of its pages and to prevent any increase or decrease in the
pages; whereas the subscription of the signatures of the testator and the attesting
witnesses is made for the purpose of authentication and identification, and thus
indicates that the will is the very same instrument executed by the testator and
attested to by the witnesses.
23

24

Further, by attesting and subscribing to the will, the witnesses thereby declare
the due execution of the will as embodied in the attestation clause. The attestation
clause, therefore, provides strong legal guaranties for the due execution of a will and
to insure the authenticity thereof. As it appertains only to the witnesses and not to
the testator, it need be signed only by them. Where it is left unsigned, it would
result in the invalidation of the will as it would be possible and easy to add the
clause on a subsequent occasion in the absence of the testator and the witnesses.
25

26

27

28

In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the following
manner:
The underlying and fundamental objectives permeating the provisions on the law on wills
in this Project consists in the liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes, but with sufficient

safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills. x x x
29

1. 2.An examination of the last will and testament of Mateo Caballero shows that it is

comprised of three sheets all of which have been numbered correlatively, with the
left margin of each page thereof bearing the respective signatures of the testator
and the three attesting witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot
thereof by the testator. The attestation clause in question, on the other hand, is
recited in the English language and is likewise signed at the end thereof by the
three attesting witnesses thereto. Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:
30

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear
on the Opposite of our respective names, we do hereby certify that the Testament was read
by him and the testator, MATEO CABALLERO, has published unto us the foregoing Will
consisting of THREE PAGES, including the Acknowledgment, each page numbered
correlatively in letters on the upper part of each page, as his Last Will and Testament and
he has signed the same and every page thereof, on the spaces provided for his signature and
on the left hand margin, in the presence of the said testator and in the presence of each and
all of us.

It will be noted that Article 805 requires that the witnesses should both attest and
subscribe to the will in the presence of the testator and of one another. Attestation
and subscription differ in meaning. Attestation is the act of the senses, while
subscription is the act of the hand. The former is mental, the latter mechanical, and
to attest a will is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe a paper
published as a will is only to write on the same paper the names of the witnesses,
for the sole purpose of identification.
31

In Taboada vs. Rosal, we clarified that attestation consists in witnessing the


testators execution of the will in order to see and take note mentally that those
things are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses names upon the same paper for the purpose of
32

identification of such paper as the will which was executed by the testator. As it
involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the
presence of the testator and of each other unless this is substantially expressed in
the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of Article 805 of
the Civil Code for attestation clauses, fails to specifically state the fact that the
attesting witnesses witnessed the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and every page
thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed signed the will and
all its pages in the presence of the three attesting witnesses and states as well the
number of pages that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures to the will
in the presence of the testator and of each other.
The phrase and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin, obviously refers to the
testator and not the instrumental witnesses as it is immediately preceded by the
words as his Last Will and Testament. On the other hand, although the words in
the presence of the testator and in the presence of each and all of us may, at first
blush, appear to likewise signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the presence of the witnesses
since said phrase immediately follows the words he has signed the same and every
page thereof, on the spaces provided for his signature and on the left hand margin.
What is then clearly lacking, in the final logical analysis, isthe statement that the
witnesses signed the will and every page thereof in the presence of the testator and of
one another.
It is our considered view that the absence of that statement required by law is a
fatal defect or imperfection which must necessarily result in the disallowance of the
will that is here sought to be admitted to probate. Petitioners are correct in pointing
out that the aforestated defect in the attestation clause obviously cannot be

characterized as merely involving the form of the will or the language used therein
which would warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article 805 (Italics
supplied.)

While it may be true that the attestation clause is indeed subscribed at the end
thereof and at the left margin of each page by the three attesting witnesses, it
certainly cannot be conclusively inferred therefrom that the said witnesses affixed
their respective signatures in the presence of the testator and of each other since, as
petitioners correctly observed, the presence of said signatures only establishes the
fact that it was indeed signed, but it does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and of each other. The execution
of a will is supposed to be one act so that where the testator and the witnesses sign
on various days or occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity.
33

We believe that the following comment of former Justice J.B.L. Reyes regarding
Article 809, wherein he urged caution in the application of the substantial
compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:
34

x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the subscribing witnesses are three
or the will was notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely disregarded. But the
total number of pages, and whether all persons required to sign did so in the presence of
each other must substantially appear in the attestation clause, being the only check against
perjury in the probate proceedings. (Emphasis ours.)

1. 3.We stress once more that under Article 809, the defects or imperfections must only
be with respect to the form of the attestation or the language employed therein.
Such defects or imperfections would not render a will invalid should it be proved
that the will was really executed and attested in compliance with Article 805. In

this regard, however, the manner of proving the due execution and attestation has
been held to be limited to merely an examination of the will itself without resorting
to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits
the fact that the attesting witnesses signed each and every page of the will in the
presence of the testator and of each other. In such a situation, the defect is not only
in the form or the language of the attestation clause but the total absence of a
specific element required by Article 805 to be specifically stated in the attestation
clause of a will. That is precisely the defect complained of in the present case since
there is no plausible way by which we can read into the questioned attestation
clause any statement, or an implication thereof, that the attesting witnesses did
actually bear witness to the signing by the testator of the will and all its pages and
that said instrumental witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
35

Furthermore, the rule on substantial compliance in Article 809 cannot be invoked


or relied on by respondents since it presupposes that the defects in the attestation
clause can be cured or supplied by the text of the will or a consideration of matters
apparent therefrom which would provide the data not expressed in the attestation
clause or from which it may necessarily be gleaned or clearly inferred that the acts
not stated in the omitted textual requirements were actually complied with in the
execution of the will. In other words, the defects must be remedied by intrinsic
evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by
the attesting witnesses can be supplied only by extrinsic evidence thereof, since an
overall appreciation of the contents of the will yields no basis whatsoever from
which such facts may be plausibly deduced. What private respondent insists on are
the testimonies of his witnesses alleging that they saw the compliance with such
requirements by the instrumental witnesses, oblivious of the fact that he is thereby
resorting to extrinsic evidence to prove the same and would accordingly be doing by
indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be followed in
resolving issues centering on compliance with the legal formalities required in the

execution of wills. The formal requirements were at that time embodied primarily in
Section 618 of Act No. 190, the Code of Civil Procedure. Said decision was later
amended by Act No. 2645, but the provisions respecting said formalities found in
Act No. 190 and the amendment thereto were practically reproduced and adopted in
the Civil Code.
One view advanced the liberal or substantial compliance rule. This was first laid
down in the case of Abangan vs. Abangan, where it was held that the object of the
solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guarantee their
truth and authenticity. Therefore, the laws on this subject should be interpreted in
such a way as to attain these primordial ends. Nonetheless, it was also emphasized
that one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will, hence when an interpretation
already given assures such ends, any other interpretation whatsoever that adds
nothing but demands more requisites entirely unnecessary, useless and fnistrative
of the testators last will, must be disregarded. The subsequent cases of Avera vs.
Garcia, Aldaba vs. Roque, Unson vs. Abella, Pecson vs. Coronel, Fernandez vs.
Vergel de Dios, et al., and Nayve vs. Mojal, et al. all adhered to this position. The
other view which advocated the rule that statutes which prescribe the formalities
that should be observed in the execution of wills are mandatory in nature and are to
be strictly construed was followed in the subsequent cases of In the Matter of the
Estate of Saguinsin, In re Will of Andrada, Uy Coque vs. Sioca, In re Estate of
Neumark, and Sano vs. Quintana.
36

37

38

39

41

40

42

43

44

46

45

47

Gumban vs. Gorecho, et al., provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said case
of Gumban, the attestation clause had failed to state that the witnesses signed the
will and each and every page thereof on the left margin in the presence of the
testator. The will in question was disallowed, with these reasons therefor:
48

In support of their argument on the assignment of error above-mentioned, appellants rely


on a series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin
([1920], 41 Phil., 875), continuing with In re Will of Andrada([1921], 42 Phil., 180), Uy
Coque vs. Navas L. Sioca ([1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46
Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506), Appellee counters
with the citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil.,
476), continuing through Aldaba vs. Roque ([1922], 43 Phil. 378), and Fernandez vs. Vergel

de Dios ([1924], 46 Phil., 922), and culminating inNayve vs. Mojal and Aguilar ([1924], 47
Phil. 152). In its last analysis, our task is to contrast and, if possible, conciliate, the last two
decisions cited by opposing counsel, namely, those ofSano vs. Quintana, supra, and Nayve
vs. Mojal and Aguilar,supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which
does not recite that the witnesses signed the will and each and every page thereof on the
left margin in the presence of the testator is defective, and such a defect annuls the will.
The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and
Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra,wherein it was held that the attestation clause must state the fact that the
testator and the witnesses reciprocally saw the signing of the will, for such an act cannot be
proved by the mere exhibition of the will, if it is not stated therein. It was also held that the
fact that the testator and the witnesses signed each and every page of the will can be proved
also by the mere examination of the signatures appearing on the document itself, and the
omission to state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided by casuistry of the extreme type, it would
be impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may be
mentioned. In the first place, the Mojal decision was concurred in by only four members of
the court, less than a majority, with two strong dissenting opinions; the Quintana decision
was concurred in by seven members of the court, a clear majority, with one formal dissent.
In the second place, the Mojal decision was promulgated in December, 1924, while the
Quintana decision was promulgated in December 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the Quintana decision is believed more
nearly to conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure, as amended by Act No. 2645,
and in section 634 of the same Code, as unamended. It is in part provided in section 61, as
amended that No will * * * shall be valid * * *unless * * *. It is further provided in the
same section that The attestation shall state the number of sheets or pages used, upon
which the will is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and signed the will and all pages
thereof in the presence of the testator and of each other. Codal section 634 provides that

The will shall be disallowed in either of the following cases: 1. If not executed
and attested as in this Act provided. The law not alone carefully makes use of the
imperative, but cautiously goes further and makes use of the negative, to enforce legislative
intention. It is not within the province of the courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the
extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the
Court that once more appeared to revive the seeming diversity of views that was
earlier threshed out therein. The cases of Quinto vs. Morata, Rodriguez vs. Alcala,
Echevarria vs. Sarmiento, and Testate Estate of Toray went the way of the ruling as
restated in Gumban. But De Gala vs. Gonzales, et al., Rey vs. Cartagena, De Ticson
vs. De Gorostiza, Sebastian vs. Panganiban, Rodriguez vs. Yap, Grey vs.
Fabia, Leynez vs. Leynez, Martir vs. Martir, Alcala vs. De Villa, Sabado vs.
Fernandez, Mendoza vs. Pilapil, and Lopez vs. Liboro, veered away from the strict
interpretation rule and established a trend toward an application of the liberal view.
49

51

50

52

53

55

58

56

59

62

54

57

60

63

61

64

The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification
of the substantial compliance rule, as it believed this rule to be in accord with the
modern tendency to give a liberal approach to the interpretation of wills. Said rule
thus became what is now Article 809 of the Civil Code, with this explanation of the
Code Commission:
The present law provides for only one form of executing a will, and that is, in accordance
with the formalities prescribed by Section 618 of the Code of Civil Procedure as amended by
Act No. 2645. The Supreme Court of the Philippines had previously upheld the strict
compliance with the legal formalities and had even said that the provisions of Section 618 of
the Code of Civil Procedure, as amended regarding the contents of the attestation clause
were mandatory, and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43
Phil. 405). These decisions necessarily restrained the freedom of the testator in disposing of
his property.
However, in recent years the Supreme Court changed its attitude and has become more
liberal in the interpretation of the formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.

Leynez, G.R. No. 46097, October 18, 1939;Martir vs. Martir, G.R. No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back to
the original provisions of Section 618 of the Code of Civil Procedure before its amendment
by Act No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to
attain the main objective of the proposed Code in the liberalization of the manner of
executing wills, article 829 of the Project is recommended, which reads:
ART. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 829.
65

The so-called liberal rule, the Court said in Gil vs. Murciano, does not offer any
puzzle or difficulty, nor does it open the door to serious consequences. The later
decisions do tell us when and where to stop; they draw the dividing line with,
precision. They do not allow evidencealiunde to fill a void in any part of the
document or supply missing details that should appear in the will itself. They only
permit a probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite formalities of law.
This clear, sharp limitation eliminates uncertainty and ought to banish any fear of
dire results.
66

It may thus be stated that the rule, as it now stands, is that omission which can
be supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself.
67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of


respondent court is hereby REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R
(Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to
REVIVE Special Proceeding No. 3965-R (In the Matter of the Intestate Estate of
Mateo Caballero) as an active case and thereafter duly proceed with the settlement
of the estate of the said decedent.

SO ORDERED.
Narvasa (C.J., Chairman), Padilla and Nocon, JJ.,concur.
Petition granted. Decision reversed and set aside.
Notes.Persons convicted of falsification of a document, perjury or false
testimony are disqualified from being witnesses to a will (People vs. Umali, 193
SCRA 493).
Failure to attach will to petition not critical where it was adduced in evidence
(Heirs of Fran vs. Salas, 210 SCRA 303).
o0o

G.R. No. 176943.October 17, 2008.*


DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and
CONNIE ALUAD, petitioners,vs. ZENAIDO ALUAD, respondent.
Civil Law; Ownership; For the right to dispose of a thing without other limitations than
those established by law is an attribute of ownership.The statement in the Deed of
Donation reading anytime during the lifetime of the DONOR or anyone of them who
should survive, they could use, encumber or even dispose of any or even all the
parcels of land herein donated means that Matilde retained ownership of the lots and
reserved in her the right to dispose them. For the right to dispose of a thing without other
limitations than those established by law is an attribute of ownership. The phrase in the
Deed of Donation or anyone of them who should survive is of course out of sync. For the
Deed of Donation clearly stated that it would take effect upon the death of the donor, hence,
said phrase could only have referred to the donor Matilde. Petitioners themselves concede
that such phrase does not refer to the donee, thus: x x x [I]t is well to point out that the last
provision (sentence) in the disputed paragraph should only refer to Matilde Aluad, the
donor, because she was the only surviving spouse at the time the donation was executed on
14 November 1981, as her husband Crispin Aluad [] had long been dead as early as 1975.
Same; Wills and Succession; Donation; The donation being then mortis causa, the
formalities of a will should have been observed but they were not, as it was witnessed by only
two, not three or more witnesses following Article 805 of the Civil Code.As the Court of
Appeals observed, x x x [t]hat the donation ismortis causa is fortified by Matildes acts of
possession as she continued to pay the taxes for the said properties which remained under
her name; appropriated the produce; and applied for free patents for which OCTs were
issued under her name. The donation being then mortis causa, the formalities of a will
should have been observed but they were not, as it was witnessed by only two, not three or
more witnesses following Article 805 of the Civil Code. Further, the witnesses did not even
sign the attestation clause the execution of which clause is a requirement separate from the
subscription of the will and the affixing of signatures on the left-hand margins of the pages
of the will.
Same; Same; An unsigned attestation clause results in an unattested will.x x x Article
805 particularly segregates the requirement that the instrumental witnesses sign each
page of the will from the requisite that the will be attested and subscribed by [the
instrumental witnesses]. The respective intents behind these two classes of signature[s] are
distinct from each other. The signatures on the left-hand corner of every page signify,
among others, that the witnesses are aware that the page they are signing forms part of the
will. On the other hand, the signatures to the attestation clause establish that

the witnesses are referring to the statements contained in the attestation clause itself.
Indeed, the attestation clause is separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses undertakings in the clause,
since the signatures that do appear on the page were directed towards a wholly different
avowal.
Same; Same; Every will must be acknowledged before a notary public by the testator
and the witnesses.The witnesses did not acknowledge the will before the notary public,
which is not in accordance with the requirement of Article 806 of the Civil Code that every
will must be acknowledged before a notary public by the testator and the witnesses. More.
The requirement that all the pages of the will must be numbered correlatively in letters
placed on the upper part of each page was not also followed.
Same; Same; Donations; The Deed of Donation which is, as already discussed, one of
mortis causa, not having followed the formalities of a will, it is void and transmitted no
right to petitioners mother.The Deed of Donation which is, as already discussed, one
of mortis causa, not having followed the formalities of a will, it is void and transmitted no
right to petitioners mother. But even assuming arguendo that the formalities were
observed, since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to
Maria. Matilde thus validly disposed of Lot No. 674 to respondent by her last will and
testament, subject of course to the qualification that her (Matildes) will must be probated.
With respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to
respondent on August 26, 1991.
Civil Procedure; Appeals; As a general rule, points of law, theories, and issues not
brought to the attention of the trial court cannot be raised for the first time on appeal.
Petitioners failed to raise the issue of acquisitive prescription before the lower courts,
however, they having laid their claim on the basis of inheritance from their mother. As a
general rule, points of law, theories, and issues not brought to the attention of the trial
court cannot be raised for the first time on appeal. For a contrary rule would be unfair to
the adverse party who would have no opportunity to present further evidence material to
the new theory, which it could have done had it been aware of it at the time of the hearing
before the trial court.

PETITION for review on certiorari of a decision of the Court of Appeals.


The facts are stated in the opinion of the Court.

Jose S. Diloy, Jr. for petitioners.


Orlanda B. Lumawag for respondent.
CARPIO-MORALES,J.:
Petitioners mother, Maria Aluad (Maria), and respondent Zenaido Aluad were
raised by the childless spouses Matilde Aluad (Matilde) and Crispin Aluad
(Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680,
and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde
adjudicated the lots to herself.1
On November 14, 1981, Matilde executed a document entitled Deed of Donation
of Real Property Inter Vivos2(Deed of Donation) in favor of petitioners mother
Maria3covering all the six lots which Matilde inherited from her husband Crispin.
The Deed of Donation provided:
That, for and in consideration of the love and affection of the DONOR [Matilde] for the
DONEE [Maria], the latter being adopted and hav[ing] been brought up by the former the
DONOR, by these presents, transfer and convey, BY WAY OF DONATION, unto the
DONEE the property above-described, to become effective upon the death of the
DONOR, but in the event that the DONEE should die before the DONOR, the
present donation shall be deemed rescinded and [of] no further force and effect;
Provided, however, that anytime during the lifetime of the DONOR or anyone of them who
should survive, they could use[,] encumber or even dispose of any or even all of the parcels
of land herein donated. (Emphasis and underscoring supplied)
4

On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676
were issued in Matildes name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of
Absolute Sale of Real Property.5
Subsequently or on January 14, 1992, Matilde executed a last will and
testament,6 devising Lot Nos. 675, 677, 682, and 680 to Maria, and her remaining
properties including Lot No. 674 to respondent.

Matilde died on January 25, 1994, while Maria died on September 24 of the same
year.7
On August 21, 1995, Marias heirs-herein petitioners filed before the Regional
Trial Court (RTC) of Roxas City a Complaint, 8 for declaration and recovery of
ownership and possession of Lot Nos. 674 and 676, and damages against
respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until
January 1991 when defendant entered and possessed the two (2) parcels of land claiming as
the adopted son of Crispin Aluad who refused to give back possession until Matilde Aluad
died in [1994] and then retained the possession thereof up to and until the present time,
thus, depriving the plaintiffs of the enjoyment of said parcels of land x x x;
That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right
of representation from their deceased mother, Maria Aluad who is the sole and only
daughter of Matilde Aluad[.]
9

To the complaint respondent alleged in his Answer.10


That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last
Will and Testament of Matilde Aluad x x x while Lot 676 was purchased by him from
Matilde Aluad. These two lots are in his possession as true owners thereof. (Underscoring
supplied)
11

Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to
Conform to Evidence12 to which it annexed an Amended Complaint13 which cited the
donation of the six lots via Deed of Donation in favor of their mother Maria. Branch
15 of the RTC granted the motion and admitted the Amended Complaint. 14
Respondent filed an Amended Answer 15 contending,inter alia, that the Deed of
Donation is forged and falsified and petitioners change of theory showed that said
document was not existing at the time they filed their complaint and was concocted
by them after realizing that their false claim that their mother was the only
daughter of Matild[e] Aluad cannot in anyway be established by them; 16 and that if
ever said document does exist, the same was already revoked by Matilde when [she]
exercised all acts of dominion over said properties until she sold Lot 676 to
defendant and until her death with respect to the other lots without any opposition
from Maria Aluad.17

The trial court, by Decision18 of September 20, 1996, held that Matilde could not
have transmitted any right over Lot Nos. 674 and 676 to respondent, she having
previously alienated them to Maria via the Deed of Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1.Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676,
Pilar Cadastre;
2.Ordering the defendant to deliver the possession of the subject lots to the plaintiffs;
3.Ordering the defendant to pay the plaintiffs:
a.Thirty thousand pesos (P30,000.00) as attorneys fees;
b.Twenty thousand pesos (P20,000.00), representing the income from subject Lot
676, a year from 1991 up to the time said lot is delivered to the plaintiffs, together
with the interest thereof at the legal rate until fully paid;
c.Ten thousand pesos (P10,000.00), representing the income from the subject Lot
No. 674, a year from 1991 up to the time said lot is delivered to the plaintiffs, plus
legal interest thereof at the legal rate until fully paid; and
d.The costs of the suit.
Defendants counterclaim is ordered dismissed for lack of merit.
SO ORDERED.

19

On petitioners motion, the trial court directed the issuance of a writ of execution
pending appeal.20 Possession of the subject lots appears to have in fact been taken by
petitioners.
By Decision21 of August 10, 2006, the Court of Appeals reversed the trial courts
decision, it holding that the Deed of Donation was actually a donation mortis causa,
not inter vivos, and as such it had to, but did not, comply with the formalities of a
will. Thus, it found that the Deed of Donation was witnessed by only two witnesses
and had no attestation clause which is not in accordance with Article 805 of the
Civil Code, reading:

Art.805.Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testators 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.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will shall, also sign, as aforesaid, each and every page thereof, except the
last on the left margin and all the pages shall be numbered correlatively in letters placed on
the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that that testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator, and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.

While the appellate court declared respondent as the rightful owner of Lot
No. 676, it did not so declare with respect to Lot No. 674, as Matildes last will and
testament had not yet been probated. Thus the Court of Appeals disposed:
WHEREFORE, finding

the

instant

petition

worthy

of

merit,

the

same

is

hereby GRANTED and the Decision of the Regional Trial Court of Roxas City, Branch 15,
dated 20 September 1996, in Civil Case No. V-6686 for declaration of ownership, recovery of
ownership and possession, and damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the lawful owner of
Lot [No.] 676 of the Pilar Cadastre. Accordingly, plaintiffs-appellees are directed to return
the possession of the said lot to the defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as
attorneys fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED. (Emphasis in the original; underscoring supplied)
22

Their Motion for Reconsideration23 having been denied,24 petitioners filed the
present Petition for Review,25contending that the Court of Appeals erred:
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15,
Roxas City) HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF
PETITIONERS MOTHER IS IN FACT A DONATION MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO.
676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE
DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF
LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT
BE DECLARED OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING
APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES
OF COURT (AND ORDERING PETITIONERS TO RETURN POSSESSION OF LOT 676
TO RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEYS FEES AND
COST[S] OF SUIT.
26

As did the appellate court, the Court finds the donation to petitioners mother
one of mortis causa, it having the following characteristics:
(1)It conveys no title or ownership to the transferee beforethe death of the transferor;
or what amounts to the same thing, that the transferor should retain the ownership (full or
naked) and control of the property while alive;
(2)That before the death of the transferor, the transfer should be revocable by the
transferor at will, ad nutum; but revocability may be provided for indirectly by means of a
reserved power in the donor to dispose of the properties conveyed; and

(3)That the transfer should be void if the


transferee. (Emphasis and underscoring supplied)

transferor

should

survive

the

27

The phrase in the earlier-quoted Deed of Donation to become effective upon the
death of the DONOR admits of no other interpretation than to mean that Matilde
did not intend to transfer the ownership of the six lots to petitioners mother during
her (Matildes) lifetime.28
The statement in the Deed of Donation reading anytime during the lifetime
of the DONOR or anyone of them who should survive, they could use, encumber
or even dispose of any or even all the parcels of land herein
donated29 means that Matilde retained ownership of the lots and reserved in her
the right to dispose them. For the right to dispose of a thing without other
limitations than those established by law is an attribute of ownership. 30 The phrase
in the Deed of Donation or anyone of them who should survive is of course out of
sync. For the Deed of Donation clearly stated that it would take effect upon the
death of the donor, hence, said phrase could only have referred to the donor Matilde.
Petitioners themselves concede that such phrase does not refer to the donee, thus:
x x x [I]t is well to point out that the last provision (sentence) in the disputed
paragraph should only refer to Matilde Aluad, the donor, because she was the only
surviving spouse at the time the donation was executed on 14 November 1981, as her
husband Crispin Aluad [] had long been dead as early as 1975.
31

The trial court, in holding that the donation was inter vivos, reasoned:
x x x The donation in question is subject to a resolutory term or period when the donor
provides in the aforequoted provisions, but in the event that the DONEE should die before
the DONOR, the present donation shall be deemed rescinded and [of] no further force and
effect. When the donor provides that should the DONEE xxx die before the DONOR, the
present donation shall be deemed rescinded and [of] no further force and effect the logical
construction thereof is that after the execution of the subject donation, the same became
effective immediately and shall be deemed rescinded and [of] no further force and effect
upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur
before that of the donor. Understandably, the arrival of this resolutory term or period cannot
rescind and render of no further force and effect a donation which has never become
effective, because, certainly what donation is there to be rescinded and rendered of no
further force and effect upon the arrival of said resolutory term or period if there was no
donation which was already effective at the time when the donee died? (Italics supplied)
32

A similar ratio in a case had been brushed aside by this Court, however, thus:
x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee]
die ahead of [donor] Cabatingan is a resolutory condition that confirms the nature of the
donation asinter vivos.
Petitioners arguments are bereft of merit.

33

xxxx
x x x The herein subject deeds expressly provide that the donation shall be rescinded in
case [donees] the petitioners predecease [the donor] Conchita Cabatingan. As stated
in Reyes v. Mosqueda, one of the decisive characteristics of a donation mortis causa is that
the transfer should be considered void if the donor should survive the donee. This is exactly
what Cabatingan provided for in her donations. If she really intended that the donation
should take effect during her lifetime and that the ownership of the properties donated to
the donee or independently of, and not by reason of her death, she would not have expressed
such proviso in the subject deeds. (Underscoring supplied)
34

As the Court of Appeals observed, x x x [t]hat the donation is mortis causa is


fortified by Matildes acts of possession as she continued to pay the taxes for the said
properties which remained under her name; appropriated the produce; and applied
for free patents for which OCTs were issued under her name. 35
The donation being then mortis causa, the formalities of a will should have been
observed36 but they were not, as it was witnessed by only two, not three or more
witnesses following Article 805 of the Civil Code.37
Further, the witnesses did not even sign the attestation clause 38 the execution of
which clause is a requirement separate from the subscription of the will and the
affixing of signatures on the left-hand margins of the pages of the will. So the Court
has emphasized:
x x x Article 805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will from the requisite that the will be attested and
subscribed by [the instrumental witnesses]. The respective intents behind these two classes
of signature[s] are distinct from each other. The signatures on the left-hand corner of every
page signify, among others, that the witnesses are aware that the page they are signing
forms part of the will. On the other hand, the signatures to the attestation clause establish
that the witnesses are referring to the statements contained in the attestation clause itself.

Indeed, the attestation clause is separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses undertakings in the clause,
since the signatures that do appear on the page were directed towards a wholly different
avowal.
x x x It is the witnesses, and not the testator, who are requiredunder Article 805 to state
the number of pages used upon which the will is written; the fact that the testator had
signed the will and every page thereof; and that they witnessed and signed the will and all
the pages thereof in the presence of the testator and of one another. The only proof in the
will that the witnesses have stated these elemental facts would be their signatures on the
attestation clause. (Emphasis and underscoring supplied)
39

Furthermore, the witnesses did not acknowledge the will before the notary
public,40 which is not in accordance with the requirement of Article 806 of the Civil
Code that every will must be acknowledged before a notary public by the testator
and the witnesses.
More. The requirement that all the pages of the will must be numbered
correlatively in letters placed on the upper part of each page was not also followed. 41
The Deed of Donation which is, as already discussed, one of mortis causa, not
having followed the formalities of a will, it is void and transmitted no right to
petitioners mother. But even assuming arguendo that the formalities were
observed, since it was not probated, no right to Lot Nos. 674 and 676 was
transmitted to Maria.42 Matilde thus validly disposed of Lot No. 674 to respondent
by her last will and testament, subject of course to the qualification that her
(Matildes) will must be probated. With respect to Lot No. 676, the same had, as
mentioned earlier, been sold by Matilde to respondent on August 26, 1991.
Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in
favor of their mother is indeedmortis causa, hence, Matilde could devise it to
respondent, the lot should nevertheless have been awarded to them because they
had acquired it by acquisitive prescription, they having been in continuous,
uninterrupted, adverse, open, and public possession of it in good faith and in the
concept of an owner since 1978.43

Petitioners failed to raise the issue of acquisitive prescription before the lower
courts, however, they having laid their claim on the basis of inheritance from their
mother. As a general rule, points of law, theories, and issues not brought to the
attention of the trial court cannot be raised for the first time on appeal. 44 For a
contrary rule would be unfair to the adverse party who would have no opportunity
to present further evidence material to the new theory, which it could have done had
it been aware of it at the time of the hearing before the trial court.45
WHEREFORE, the petition is DENIED.
SO ORDERED.
Quisumbing (Chairperson), Tinga, Velasco, Jr. andBrion, JJ., concur.
Petition denied.

Note.Before any will can have force or validity it must be probatedthis


cannot be dispensed with and is a matter of public policy; A Partition Agreement
which was executed pursuant to a will that was not probated can not be given effect.
(Rodriguez vs. Rodriguez, 532 SCRA 642 [2007])
o0o

No. L-38338. January 28, 1985.

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND


BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS,
petitioners, vs. ANDRES R. DE JESUS, JR., respondent
Civil Law; Wills; Execution of Wills; Purpose of liberal trend of the Civil Code in the
manner of execution of wills in case of doubt is to prevent intestacy.This will not be the
first time that this Court departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not overlook the liberal trend
of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt
is to prevent intestacy.
Same; Same; Same; Admission to probate of the will which has been executed in
substantial compliance with the formalities of the law, and the possibility of bad faith and
fraud is obviated.Thus, the prevailing policy is to require satisfaction of the legal
requirements in order to guard against fraud and bad faith but without undue or
unnecessary curtailment of testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422). If a
Will has been executed in substantial compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is obviated, said Will should be
admitted to probate (Rey v. Cartagena, 56 Phil. 282).
Same; Same; Same; Purpose of the solemnities surrounding the execution of wills.The
purpose of the solemnities surrounding the execution of Wills has been expounded by this
Court in Abangan v. Abangan, 40 Phil. 476) where we ruled that: The object of the
solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. x x x
Same; Same; Same; Holographic Will; Absence of evidence of bad faith and fraud in the
execution of a holographic will and absence of any substitution of wills and testaments;
Finding that the will was entirely written, dated and signed and no question of its
genuineness and due execution, correct.We have carefully reviewed the records of this case
and found no evidence of bad faith and fraud in its execution nor was there any substitution
of Wills and Testaments. There is no question that the holographic Will of the deceased
Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and
in a language known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of the holographic Will

of their mother and that she had the testamentary capacity at the time of the execution of
said Will.
Same; Same; Same; General rule that the date in a holographic will should include the
day, month and year of execution; Exception, is the absence of appearance of fraud, bad
faith, undue influence and pressure and the authenticity of the will; Date Feb./61
appearing in a holographic will, valid, under the principle of substantial compliance.As a
general rule, the date in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith,
undue influence and pressure and the authenticity of the Will is established and the only
issue is whether or not the date FEB./61 appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.

PETITION for certiorari to review the order of the Court of First Instance of
Manila, Br. XXI. Colayco, J.
The facts are stated in the opinion of the Court.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco, Velasco and Associates for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C.
Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing
the probate of the holographic Will of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,
Special Proceeding No. 81503 entitled In the Matter of the Intestate Estate of
Andres G. de Jesus and Bibiana Roxas de Jesus was filed by petitioner Simeon R.
Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator.
After Letters of Administration had been granted to the petitioner, he delivered to

the lower court a document purporting to be the holographic Will of the deceased
Bibiana Roxas de Jesus.
On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate
of the holographic Will on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator,
he found a notebook belonging to the deceased Bibiana R. de Jesus and that on
pages 21, 22, 23 and 24 thereof, a letter-will addressed to her children and entirely
written and signed in the handwriting of the deceased Bibiana R. de Jesus was
found. The will is dated FEB./61 and states: This is my will which I want to be
respected altho it is not written by a lawyer. x x x
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro
Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter
dated FEB./61 is the holographic Will of their deceased mother, Bibiana R. de
Jesus. Both recognized the handwriting of their mother and positively identified her
signature. They further testified that their deceased mother understood English, the
language in which the holographic Will is written, and that the date FEB./61 was
the date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an opposition to probate
assailing the purported holographic Will of Bibiana R. de Jesus because(a) it was
not executed in accordance with law, (b) it was executed through force, intimidation
and/or under duress, undue influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor could have intended the said
Will to be her last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing
the probate of the holographic Will which he found to have been duly executed in
accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter
alia that the alleged holographic Will of the deceased Bibiana R. de Jesus was not
dated as required by Article 810 of the Civil Code. She contends that the law
requires that the Will should contain the day, month, and year of its execution and
that this should be strictly compiled with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order
and disallowed the probate of the holographic Will on the ground that the word
dated has generally been held to include the month, day, and year. The dispositive
portion of the order reads:
WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de
Jesus, is hereby disallowed for not having been executed as required by the law. The order of
August 24, 1973 is hereby set aside.

The only issue is whether or not the date FEB./61 appearing on the holographic
Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article
810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which must be entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article
688 of the Old Civil Code require the testator to state in his holographic Will the
year, month, and day of its execution, the present Civil Code omitted the phrase
Ao, mes y dia and simply requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the holographic Will should
prevail.
Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil Code
in that the date must contain the year, month, and day of its execution. The
respondent contends that Article 810 of the Civil Code was patterned after Section
1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme
Courts had consistently ruled that the required date includes the year, month, and
day, and that if any of these is wanting, the holographic Will is invalid. The
respondent further contends that the petitioner cannot plead liberal construction of
Article 810 of the Civil Code because statutes prescribing the formalities to be
observed in the execution of holographic Wills are strictly construed.
We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of Wills. We
should not overlook the liberal trend of the Civil Code in the manner of execution of
Wills, the purpose of which, in case of doubt is to prevent intestacy
The underlying and fundamental objectives permeating the provisions of the law on wills
in this Project consists in the liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes, but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills. (Report of the Code Commission, p. 103)

In Justice Capistranos concurring opinion in Heirs of Raymundo Castro v.


Bustos (27 SCRA 327) he emphasized that:
xxx
xxx
xxx x x x The law has a tender regard for the will of the testator expressed in
his last will and testament on the ground that any disposition made by the testator is better
than that which the law can make. For this reason, intestate succession is nothing more
than a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in


order to guard against fraud and bad faith but without undue or unnecessary
curtailment of testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422). If a Will
has been executed in substantial compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is obviated, said Will should
be admitted to probate (Rey v. Cartagena, 56 Phil. 282). Thus,
xxx

xxx

xxx

x x x More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding circumstances point to a
regular execution of the will, and the instrument appears to have been executed
substantially in accordance with the requirements of the law, the inclination should, in the
absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of language, or other
non-essential defect. x x x (Leynez v. Leynez, 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose sought
to be accomplished by such requisite is actually attained by the form followed by the
testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court inAbangan v. Abangan, 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their
truth and authenticity. x x x

In particular, a complete date is required to provide against such contingencies as


that of two competing Wills executed on the same day, or of a testator becoming
insane on the day on which a Will was executed (Velasco v. Lopez,1 Phil. 720). There
is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad
faith and fraud in its execution nor was there any substitution of Wills and
Testaments. There is no question that the holographic Will of the deceased Bibiana
Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and
in a language known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the testamentary capacity at the
time of the execution of said Will. The objection interposed by the oppositorrespondent Luz Henson is that the holographic Will is fatally defective because the
date FEB./61 appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to be entertained.
As a general rule, the date in a holographic Will should include the day, month,
and year of its execution. However, when as in the case at bar, there is no
appearance of fraud, bad faith, undue influence and pressure and the authenticity of
the Will is established and the only issue is whether or not the date FEB./61
appearing on the holographic Will is a valid compliance with Article 810 of the Civil
Code, probate of the holographic Will should be allowed under the principle of
substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is


REVERSED and SET ASIDE and the order allowing the probate of the holographic
Will of the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana,Relova and De la Fuente,
JJ., concur.
Petition granted. Order reversed and set aside.
Notes.The intention and wishes of the testator, when clearly expressed in his
will, constitute the fixed law of interpretation, and all questions raised at the trial,
relative to its execution and fulfillment, must be settled in accordance therewith,
following the plain and literal meaning of the testators words, unless it clearly
appears that his intention was otherwise. (Vda. de Villanueva vs. Juico, 4 SCRA
550.)
Where a will does not comply with the requirement contained in Article 806 of
the New Civil Code, it is obvious that the same may not be probated. (Garcia vs.
Gatchalian,21 SCRA 1056.)
o0o

G.R. Nos. 83843-44. April 5, 1990.

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO


LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA
LABRADOR, ENRICA LABRADOR, and CRISTOBAL LABRADOR, petitionersappellants, vs. COURT OF APPEALS, GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
1

Wills; Date of holographic will can be placed in the main body thereof.The will has
been dated in the hand of the testator himself in perfect compliance with Article 810. It is
worthy of note to quote the first paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March, 17th
day, in the year 1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO LABRADOR, their
father. (italics supplied) (p. 46, Rollo) The law does not specify a particular location where
the date should be placed in the will. The only requirements are that the date be in the will
itself and executed in the hand of the testator. These requirements are present in the
subject will.
Same; Words & Phrases; Intention to execute a will, not a partition agreement plain
from the words of the holographic will at bar.Respondents are in error. The intention to
show 17 March 1968 as the date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the will was not an
agreement but a unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such partitioning was
the testators instruction or decision to be followed reveal that Melecio Labrador was fully
aware of the nature of the estate property to be disposed of and of the character of the
testamentary act as a means to control the disposition of his estate.

PETITION to review the decision of the Court of Appeals. Imperial, J.


The facts are stated in the opinion of the Court.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of one
Melecio Labrador is dated, as provided for in Article 810 of the New Civil Code.
2

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio
Labrador died in the Municipality of Iba, province of Zambales, where he was
residing, leaving behind a parcel of land designated as Lot No. 1916 under Original
Certificate of Title No. P-1652, and the following heirs, namely: Sagrado, Enrica,

Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs),
Enrica Labrador and Cristobal Labrador, filed in the court a quo a petition for the
probate docketed as Special Proceeding No. 922-I of the alleged holographic will of
the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but
substituted by his heirs), and Gaudencio Labrador filed an opposition to the petition
on the ground that the will has been extinguished or revoked by implication of law,
alleging therein that on September 30, 1971, that is, before Melecios death, for the
consideration of Six Thousand (P6,000) Pesos, testator Melecio executed a Deed of
Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus and
Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been
cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said
parcel of land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio
and Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel
of land which Sagrado allegedly had already acquired by devise from their father
Melecio Labrador under a holographic will executed on March 17, 1968, the
complaint for annulment docketed as Civil Case No. 934-I, being premised on the
fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial
court rendered a joint decision dated February 28, 1985, allowing the probate of the
holographic will and declaring null and void the Deed of Absolute Sale. The court a
quo had also directed the respondents (the defendants in Civil Case No. 934-I) to
reimburse to the petitioners the sum of P5,000.00 representing the redemption price
for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon
from December 20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March
10, 1988 modified said joint decision of the court a quo by denying the allowance of
the probate of the will for being undated and reversing the order of reimbursement.

Petitioners Motion for Reconsideration of the aforesaid decision was denied by the
Court of Appeals, in the resolution of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to
wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE
PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR;
and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE
LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND
PESOS REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.

The alleged undated holographic will written in Ilocano translated into English, is
quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
IFirst Page
This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known place
as Tagale.
And this place that is given as the share to him, there is a measurement of more or less
one hectare, and the boundary at the South is the property and assignment share of
ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known as
the SEA as it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL
LABRADOR, who likewise is also their brother. That because it is now the time for me
being now ninety three (93) years, then I feel it is the right time for me to partition the
fishponds which were and had been bought or acquired by us, meaning with their two
mothers, hence there shall be no differences among themselves, those among brothers and
sisters, for it is I myself their father who am making the apportionment and delivering to

each and everyone of them the said portion and assignment so that there shall not be any
cause of troubles or differences among the brothers and sisters.
IISecond Page
And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the month of
March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter
to be followed. And the one who made this writing is no other than MELECIO LABRADOR,
their father.
Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled and
nothing will happen along these troubles among my children, and that they will be in good
relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut trees
and all others like the other kind of bamboo by name of Bayog, it is their right to get if they
so need, in order that there shall be nothing that anyone of them shall complain against the
other, and against anyone of the brothers and sisters.
IIITHIRD PAGE
And that referring to the other places of property, where the said property is located, the
same being the fruits of our earnings of the two mothers of my children, there shall be equal
portion of each share among themselves, and or to be benefitted with all those property,
which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which I am
here hereof manifesting of the truth and of the fruits of our labor which their two mothers, I
am signing my signature below hereof, and that this is what should be complied with, by all
the brothers and sisters, the children of their two mothersJULIANA QUINTERO
PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing
(WILL), and he is, MELECIO LABRADOR y RALUTIN. (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect compliance
with Article 810. It is worthy of note to quote the first paragraph of the second page
of the holographic will, viz:
And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March, 17th
day, in the year 1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO LABRADOR, their
father. (italics supplied) (p. 46, Rollo)

The law does not specify a particular location where the date should be placed in the
will. The only requirements are that the date be in the will itself and executed in
the hand of the testator. These requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator
and his beneficiaries entered into an agreement among themselves about the
partitioning and assigning the respective assignments of the said fishpond, and
was not the date of execution of the holographic will; hence, the will is more of an
agreement between the testator and the beneficiaries thereof to the prejudice of
other compulsory heirs like the respondents. This was thus a failure to comply with
Article 783 which defines a will as an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his
estate, to take effect after his death.
Respondents are in error. The intention to show 17 March 1968 as the date of the
execution of the will is plain from the tenor of the succeeding words of the
paragraph. As aptly put by petitioner, the will was not an agreement but a
unilateral act of Melecio Labrador who plainly knew that what he was executing
was a will. The act of partitioning and the declaration that such partitioning as the
testators instruction or decision to be followed reveal that Melecio Labrador was
fully aware of the nature of the estate property to be disposed of and of the
character of the testamentary act as a means to control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000 representing
the redemption price as erroneous, respondent courts conclusion is incorrect. When
private respondents sold the property (fishpond) with right to repurchase to Navat
for P5,000, they were actually selling property belonging to another and which they
had no authority to sell, rendering such sale null and void. Petitioners, thus

redeemed the property from Navat for P5,000, to immediately regain possession of
the property for its disposition in accordance with the will. Petitioners therefore
deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10,
1988 is hereby REVERSED. The holographic will of Melecio Labrador is
APPROVED and ALLOWED probate. The private respondents are directed to
REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.
Melencio-Herrera (Chairman), Padilla, Sarmientoand Regalado, JJ., concur.
Decision reversed.
Notes.The dismissal of a petition for the probate of a will due to absence of
counsel and petitioner during the hearing is not an adjudication on the merits. (De
Arroyo vs. Abay, 4 SCRA 555.)
Inadvertent failure of a witness to sign one page of a testament is not per se
sufficient to justify denial of probate. (Icasiano vs. Icasiano, 11 SCRA 422.)
Disposal by testator of certain properties in his will prior to his death is not a
proper ground for denial of probate. (Sumilang vs. Ramagosa, 21 SCRA 1369.)
o0o

[No. L-12190.
TESTATE ESTATE
GAN,

OF

petitioner

August 30, 1958]

FELICIDAD ESGUERRA ALTO-YAP


and

appellant, vs. ILDEFONSO

DECEASED.

YAP,

FAUSTO E.

oppositor

and

appellee.
HOLOGRAPHIC WILLS; PROBATE OF EXECUTION AND CONTENTS OF WILL, HOW PROVED.
The execution and the contents of a lost or destroyed holographic will may not be proved by
the bare testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as
material proof of authenticity.

APPEAL from a judgment of the Court of First Instance of Manila. San Jose, J.
The facts are stated in the opinion of the Court.
Benedicto C. Balderrama, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the
University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in
the City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila
court of first instance with a petition for the probate of a holographic will allegedly
executed by the deceased, substantially in these words:
Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang
aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamaganakang sumu-sunod:
Vicente Esguerra, Sr. .............................. 5 Bahagi
Fausto E. Gan......................................... 2 Bahagi
Rosario E. Gan ....................................... 2 Bahagi
Filomena Alto .........................................1 Bahagi

Beatriz Alto ............................................1 Bahagi


At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking
ipinamamana sa aking asawang si Ildefonso D. Yap sa kondisyong siyay magpapagawa ng
isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan
ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito
ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang
aking kagus-tuhan.
(Lagda) Felicidad E. Alto-Yap

Opposing the petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San
Jose, Judge,1 refused to probate the alleged will. A seventy-page motion for
reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and
due execution by the statements in open court of Felina Esguerra, Primitivo Reyes,
Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as
follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her
first cousin, Vicente Esguerra, her desire to make a. will. She confided however that
it would be useless if her husband discovered or knew about it. Vicente consulted
with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without any witness, provided the
document was entirely in her handwriting, signed and dated by her. Vicentp
Esguerra lost no time in transmitting the information, and on the strength of it, in
the morning of November 5, 1951, in her residence at Juan Luna Street, Manila,
Felicidad wrote, signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who
was invited to read it. In the afternoon of that day, Felicidad was visited by a distant
relative, Primitivo Reyes, and she allowed him to read the will in the presence of
Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan
Jimenez, a niece. To these she showed the will, again in the presence of Felina
Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for
her last illness, she entrusted the said will, which was contained in a purse,
to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked

Felina for the purse; and being afraid of him by reason of his well-known violent
temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned
the purse to Felina, only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she had taken the purse to
the toilet, opened it and read the will for the last time. 2
From the oppositors proof it appears that Felicidad Esguerra had been suffering
from heart disease for several years before her death; that she had been treated by
prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May
1950 husband and wife journeyed to the United States wherein for several weeks
she was treated for the disease; that thereafter she felt well and after visiting
interesting places, the couple returned to this country in August 1950.
However, her ailment recurred, she suffered several attacks, the most serious of
which happened in the early morning of the first Monday of November 1951 (Nov.
5). The whole household was surprised and alarmed, even the teachers of the
Harvardian Colleges occupying the lower floors and owned by the Yap spouses.
Physicians help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00
a.m., found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctors advice
the patient stayed in bed, and did nothing the whole day, her husband and her
personal attendant, Mrs. Bantique, constantly at her side. These two persons swore
that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that
day. The trial judge refused to credit the petitioners evidence for several reasons,
the most important of which were these: (a) if according to his evidence, the
decedent wanted to keep her will a secret, so that her husband would not know it, it
is strange she executed it in the presence of Felina Esguerra, knowing as she did
that witnesses were unnecessary; (b) in the absence of a showing that Felina was a
confidant of the decedent it is hard to believe that the latter would have allowed the
former to see and read the will several times; (c) it is improbable that the decedent
would have permitted Primitivo Reyes, Bosario Gan Jimenez and Socorro Olarte to
read her will, when she precisely wanted its contents to remain a secret during her
lifetime; (d) it is also improbable that her purpose being to conceal the will from her
husband she would carry it around, even to the hospital, in her purse which could
for one reason or another be opened by her husband; (e) if it is true that the
husband demanded the purse from Felina in the U.S.T. Hospital and that the will
was there, it is hard to believe that he returned it without destroying the will, the

theory of the petitioner being precisely that the wTill was executed behind his back
for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositors
evidence that Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellants brief discussed the testimony of
the oppositor and of his witnesses in a vigorous effort to discredit them. It appears
that the same arguments, or most of them, were presented in the motion to
reconsider; but they failed to induce the court a quo to change its mind. The
oppositors brief, on the other hand, aptly answers the criticisms. We deem it
unnecessary to go over the same matters, because in our opinion the case should be
decided not on the weakness of the opposition but on the strength of the evidence of
the petitioner, who has the burden of proof.
The Spanish Civil Code permited the execution of holographic wills along with
other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901,
adopted only one form, thereby repealing the other forms, including holographic
wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810814. A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form
and may be made in or out of the Philippines, and need not be witnessed.
This is indeed a radical departure from the form and solemnities provided for
wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be
subscribed by the testator and three credible witnesses in each and every page; isuch
witnesses to attest to the number of sheets used and to the fact that the testator
sigjied in their presence and that they signed in the presence of the testator and of
each other.
The object of such requirements it has been said, is to close the door against bad
faith and fraud, to prevent substitution of wills, to guarantee their truth and
authenticity (Abangan vs. Abangan, 40 Phil., 476) and to avoid that those who have
no right to succeed the testator would succeed him and be benefited with the
probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly
proved. (Rodriguez vs. Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirement to be fulfilled when
such will is submitted to the courts for allowance. For that purpose the testimony of
one of the subscribing witnesses would be sufficient, if there is no opposition (Sec. 5,

Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34
Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such
witnesses (and of other additional witnesses) the court may form its opinion as to
the genuineness and authenticity of the testament, and the circumstances of its due
execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity
are demanded, since as stated, they need no witnesses; provided however, that they
are entirely written, dated, and signed by th hand of the testator himself. The
law, it is reasonable to suppose, regards the document itself as material proof of
authenticity, and as its own safeguard, since it could at any time, be demonstrated
to be-or not to bein the hands of the testator himself. In the probate of a
holographic will says the New Civil Code, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three such witnesses shall be required. In the absence of any
such witnesses, (familiar with decedents handwriting) and if the court deem it
necessary, expert testimony may be resorted to.
The witnesses so presented do not need to have seen the execution of the
holographic will. They may be mistaken in their opinion of the handwriting, or they
may deliberately lie in affirming it is in the testators hand. However, the oppositor
may present other witnesses who also know the testators handwriting, or some
expert witnesses, who after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been written by the
hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such
contradictory testimony may use its own visual sense, and decide in the face of the
document, whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, andof
assessing the evidence are not available. And then the only guaranty of authenticity 3:
the testators handwritinghas disappeared.
Therefore, the question presents itself, may a holographic will be probated upon
the testimony of witnesseswho have allegedly seen it and who declare that it was in
the handwriting of the testator? How can the oppositor prove that such document
was not in the testators handwriting? His witnesses who know testators
handwriting have not examined it. His experts can not testify, because there is no
way to compare the alleged testament with other documents admittedly, or proven

to be, in the testators hand. The oppositor will, therefore, be caught between the
upper millstone of his lack of knowledge of the will or the form thereof, and the
nether millstone of his inability to prove its falsity. Again the proponents witnesses
may be honest and truthful; but they may have been shown a faked document, and
having no interest to check the authenticity thereof have taken no pains to examine
and compare. Or they may be perjurers boldly testifying, in the knowledge that none
could convict them of perjury, because no one could prove that they have not been
shown a document which they believed was in the handwriting of the deceased. Of
course, the competency of such perjured witnesses to testify as to the handwriting
could be tested by exhibiting to them other writings sufficiently similar to those
written by the deceased; but what witness or lawyer would not foresee such a move
and prepare for it? His knowledge of the handwriting established, the witness (or
witnesses) could simply stick to his statement: he has seen and read a document
which he believed was in the deceaseds handwriting. And the court and the
oppositor would practically be at the mercy of such witness (or witnesses) not only
as to the execution, but also as to the contents of the will. Does the law permit such
a situation?
The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost
or destroyed will by secondary evidencethe testimony of witnesses, in lieu of the
original document. Yet such Rules could not have contemplated olographic wills
which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New
Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen 4an implied admission that such
loss or theft renders it useless.
This must be so, because the Civil Code requires it to be protocoled and
presented to the judge, (Art. 689) who shall subscribe it and require its identity to
be established by the three witnesses who depose that they have no reasonable
doubt that the will was written by the testator (Art. 691).
And if the judge
considers that the identity of the will has been proven he shall order that it be filed
(Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving spouse and the
legitimate ascendants and descendants be summoned so that they may make any
statement they may desire to submit with respect to the authenticity of the will.
As it is universally admitted that the holographic will is usually done by the

testator and by himself alone, to prevent others from knowing either its execution or
its contents, the above article 692 could not have the idea of simply permitting such
relatives to state whether they know of the will, but whether in the face of the
document itself they think the testator wrote it.
Obviously, fhis they cant do
unlessthe will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of
either complying with the will if they think it authentic, or to oppose it, if they think
it spurious.5 Such purpose is frustrated when the document is not presented for
their examination. If it be argued that such choice is not essential, because anyway
the relatives may oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply with the will, if
genuine, a right which they should not be denied by withholding inspection thereof
from them.
We find confirmation of these ideasabout exhibition of the document itselfin
the decision of the Supreme Court of Spain of June 5, 1925,
which denied protocolization or probate to a document containing testamentary
dispositions in the handwriting of the deceased, but apparently mutilated, the
signature and some words having been torn from it. Even in the face of allegations
and testimonial evidence (which was controverted), ascribing the mutilation to the
opponents of the will. The aforesaid tribunal declared that, in accordance with the
provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be
presented; otherwise, it shall produce no effect.

Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del


articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar
escrito todo el y firmado por testador, con expression del ano, mes y dia en que se otorque,
resulta evidente que para la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando se otorgaron se llenaron todos esos
requisites, sino que de la expresada redaction el precepto legal, y por el tiempo en que el
verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas
condiciones en el momento de ser presentado a la Autoridad competente, para su adveracion
y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estar firmado por el testador, cualquiera que sea la causa
de la falta de firma, y sin per-juicio de las acciones que puedan ejercitar los perjudicados,
bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable *
* *.

This holding aligns with the ideas on holographic wills in the Fuero Juzgo,
admittedly the basis of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALESFuero Juzgo, libro segundo, titulo V, ley 15E depues que los
herederos e sus fijos ovieren esta manda, fasta xxx annos muestrenla al obispo de la tierra,
o al juez fasta VI meses y el obispo 6 el juez tomen otros tales tres escritos, que fuesen
fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de
la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el
juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala
la manda. (Art. 689, ScaevolaCodigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of
the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the
deceased in accordance with his holographic will, unless they are shown his
handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law considers the
loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances,
traduction por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reachthe conclusion that the
execution and the contents of a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen and/or read such will. 8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to
adopt this opinion as a Rule of Court for the allowance of such holographic wills. We
hesitate, however, to make this Rule decisive of this controversy, simultaneously
with its promulgation. Anyway, decision of the appeal may rest on the sufficiency,
rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why,
unlike holographic wills, ordinary wills may be proved by testimonial evidence when
lost or destroyed. The difference lies in the nature of the wills. In the first, the only
guarantee of authenticity is the handwriting itself; in the second, the testimony of
the subscribing or instrumental witnesses (and of the notary, now). The loss of the
holographic will entails the loss of the only medium of proof; if the ordinary will is
lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four
with the notary) deliberately to lie. And then their lies could be checked and
exposed, their whereabouts and acts on the particular day, the likelihood that they
would be called by the testator, their intimacy with the testator, etc. And if they

were intimates or trusted friends of the testator they are not likely to lend
themselves to any fraudulent scheme to distort his wishes. Last but not least, they
can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible9 only
one man could engineer the whole fraud this way: after making a clever or passable
imitation of the handwriting and signature of the deceased, he may contrive to let
three honest and credible witnesses see and read the forgery; and the latter, having
no interest, could easily fall for it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lostthe forger may have
purposely destroyed it in an accidentthe oppositors have no way to expose the
trick and the error, because the document itself is not at hand. And considering that
the holographic will may consist of two or three pages, and only one of them need be
signed, the substitution of the unsigned pages, which may be the most important
ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable
featurefeasibility of forgery would be added to the several objections to this kind
of wills listed by Castan, Sanchez Roman and Valverde and other well-known
Spanish Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing
witnesses would be testifying to a fact which they saw, namely the act of the testator
of subscribing the will; whereas in the case of a lost holographic will, the witnesses
would testify as to their opinionof the handwriting which they allegedly saw, an
opinion which can not be tested in court, nor directly contradicted by the oppositors,
because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves
sharing the trial judges disbelief. In
addition to the dubious circumstances described in the appealed decision, we find it
hard to believe that the deceased should show her will precisely to relatives who had
received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her
into amending her will to give them a share, or threaten to reveal its execution to
her husband Ildefonso Yap. And this leads to another point: if she wanted so much
to conceal the will from her husband, why did she not entrust it to her beneficiaries?
Opportunity to do so was not lacking: for instance, her husbands trip to Davao, a
few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so tainted

with improbabilities and inconsistencies that it fails to measure up to that clear


and distinct proof required by Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes,
J.B.L., Endencia and Felix, JJ.,concur.
Judgment affirmed.

No. L-58509. December 7, 1982.

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B.


BONILLA, deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO
ARANZA, ET. AL., oppositors-appellees, ATTY. LORENZO SUMULONG,
intervenor.
Civil Law; Wills; Holographic Will; Admissibility of photos tatic or xerox copy of a lost
or destroyed will.However, if the holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a comparison between

sample handwritten statements of the testator and the handwritten will. But, a photostatic
copy or xerox copy of the holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gan vs. Yap, 104 Phil 509, the
Court ruled that the execution and the contents of a lost or destroyed holographic will may
not be proved by the bare testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity. But, in Footnote 8 of said decision, it says
that Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed
or carbon copy; or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the probate court.
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be
determined by the probate court.

PETITION to review the order of the Court of Appeals.


The facts are stated in the opinion of the Court.
Luciano A. Joson for petitioner-appellant.
Cesar C. Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
x x x On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters
testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the
appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and
Ephraim Bonilla on the following grounds:
1. (1)Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;

2. (2)The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore
it was not a will;
3. (3)The alleged holographic will itself, and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gan v. Yap, 104 Phil. 509;
and
4. (4)The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the consolidation of the case with another case (Sp.
Proc. No. 8275). Their motion was granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the will. They argued that:
1. (1)The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
2. (2)Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order was
contrary to law and settled pronouncements and rulings of the Supreme Court, to which the
appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of
February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B.
Bonilla. The court said:
. . . It is our considered opinion that once the original copy of the holographic will is lost, a copy
thereof cannot stand in lieu of the original.
In the case of Gan vs. Yap, 104 Phil. 509, 522, the Supreme Court held that in the matter of
holographic wills the law, it is reasonable to suppose, regards the document itself as the material
proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on January 25,
1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from

the time of the execution of the will to the death of the decedent, the fact that the original of the will
could not be located shows to our mind that the decedent had discarded before his death his allegedly
missing Holographic Will.

Appellants motion for reconsideration was denied. Hence, an appeal to the Court of
Appeals in which it is contended that the dismissal of appellants petition is
contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground
that the appeal does not involve question of fact and alleged that the trial court
committed the following assigned errors:
1. I.THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC
WILL MAY NOT BE PROVED BY A COPY THEREOF;
2. II.THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
3. III.THE LOWER COURT ERRED IN DISMISSING APPELLANTS WILL.

The only question here is whether a holographic will which was lost or cannot be
found can be proved by means of a photostatic copy. Pursuant to Article 811 of the
Civil Code, probate of holographic wills is the allowance of the will by the court after
its due execution has been proved. The probate may be uncontested or not. If
uncontested, at least one identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at least three identifying
witnesses are required. However, if the holographic will has been lost or destroyed
and no other copy is available, the will can not be probated because the best and
only evidence is the handwriting of the testator in said will. It is necessary that
there be a comparison between sample handwritten statements of the testator and
the handwritten will. But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that the
execution and the contents of a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen and/or read such will The will
itself must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity. But, in Footnote 8 of said
decision, it says that Perhaps it may be proved by a photographic or photostatic

copy. Even a mimeographed or carbon copy; or by other similar means, if any,


whereby the authenticity of the handwriting of the deceased may be exhibited and
tested before the probate court. Evidently, the photostatic or xerox copy of the lost
or destroyed holographic will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellants motion for reconsideration dated August 9, 1979, of the Order dated July
23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is
hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana,Vasquez and Gutierrez, Jr.,
JJ., concur.
o0o

[No. L-14003. August 5, 1960]


FEDERICO AZAOLA, petitioner and appellant, vs.CESARIO SINGSON, oppositor
and appellee.
1. 1.WILLS AND LAST TESTAMENT; HOLOGRAPHIC WILL; PROBATE OF;
REQUISITE AS TO NUMBER OF WITNESSES.Since the authenticity of the
holographic will was not contested, proponent was not required to produce more
than one witness; but even if the genuineness of the holographic will were
contested, Article 811 of our present Civil Code cannot be interpreted as to require
the compulsory presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no witness may have
been present at the execution of a holographic will, none being required by law, it
becomes obvious that the existence of witnesses possessing the requisite
qualifications is a matter beyond the control of the proponent.

1. 2.ID.; ID.; ID.; PRODUCTION OF WITNESSES MERELY PREREQUISITE.


Where the will is holographic, no witness need be present and the rule requiring
production of three witnesses must be deemed merely permissive if absurd results
are to be avoided'.
1. 3.ID.; RESORT TO EXPERT EVIDENCE.Under Article 811, the resort to expert
evidence is conditioned by the words "if the Court deem it necessary", which reveals
that what the law deems essential is that the Court should be convinced of the
will's authenticity.

APPEAL from a judgment of the Court of First Instance of Rizal (Quezon City).
Yatco, J.
The facts are stated in the opinion of the Court.
F. Lavides and L. B. Alcuaz for appellant.
Vicente J. Cuna and P. S. Singson for appellee.
REYES, J. B. L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by
the Court of First Instance of Quezon City in its Special Proceedings No. Q2640,
involves the determination of the quantity of evidence required for the probate of a
holographic will.
The established facts are thus summarized in the decision appealed from (Rec.
App. pp. 22-24) :
"Briefly speaking, the following facts were established by the petitioner; that on September
9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the
holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros
Azaola was made the sole heir as against the nephew of the deceased Cesario Singson; that
witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month,
more or less, before the death of the testatrix, as the same was handed to him and his wife;
that the witness testified also that he recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the testatrix and to reinforce, said
statement, witness presented the mortgage (Exh. E), the special power of attorney (Exh. F),
and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1)

including an affidavit (Exh. G-2), and that there were further exhibited in court two
residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for
comparison purposes; that said witness, Azaola, testified that the penmanship appearing in
the aforesaid documentary evidence is in the handwriting of -the testatrix as well as the
signatures appearing therein are the signatures of the testatrix; that said witness, in
answer to a question of his counsel admitted that the holographic will was handed to him
by the testatrix, "apparently it must have been written by her" (t.s.n., p. 11). However, on
page 16 on the same transcript of the stenographic notes, when the same witness was asked
by counsel if he was familiar with the penmanship and handwriting of the deceased
Fortunata Vda. de Yance, he answered positively in the affirmative and when he was asked
again whether the penmanship referred to in the previous answer as appearing in the
holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is
hers"; that it was also established in the proceedings that the assessed value of the property
of the deceased in Luskot, Quezon City, is in the amount of P7,000.00."

The opposition to the probate was on the ground that (1) the execution of the will
was procured by undue and improper pressure and influence on the part of the
petitioner and his wife, and (2) that the testatrix did not seriously intend the
instrument to be her last will, and that the same was actually written either on the
5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code,
the proponent must present three witnesses who could declare that the will and the
signature are in the writing of the testatrix, the probate being contested; and
because the lone witness presented by the proponent "did not prove sufficiently that
the body of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more
than one witness because the will's authenticity was not questioned; and second,
that
Article 811 does not mandatorily require the production of three witnesses to
identify the handwriting and signature of a holographic will, even if its authenticity
should be denied by the adverse party. Article 811 of the Civil Code of the
Philippines is to the following effect:
"ART. 811. In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicity declare that the

will and the signature are in the handwriting of the testator. If the will is contested, at least
three of such witnesses shall be required.
In the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to. (691a)"

We agree with the appellant that since the authenticity of the will was not
contested, he was not required to produce more than one witness; but even if the
genuineness of the holographic will were contested, we are of the opinion that
Article 811 of our present Civil Code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no witness may have
been present at the execution of a holographic will, none being required by law (Art.
810, new Civil Code), it becomes obvious that the existence of witnesses possessing
the requisite qualifications is a matter beyond the control of the proponent. For it is
not merely a question of finding and producing any three witnesses; they must be
witnesses "who know the handwriting and signature of the testator" and who -can
declare (truthfully, of course, even if the law does not so express) "that the will and
the signature are in the handwriting of the testator". There may be no available
witness acquainted with the testator's hand; or even if so familiarized, the witnesses
may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1
of Article 811 may thus become an impossibility. That is evidently the reason why
the second paragraph of Article 811 prescribes that
"in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to."

As can be seen, the law foresees the possibility that no qualified witness may be
found (or what amounts to the same thing, that no competent witness may be
willing to testify to the authenticity of the will), and provides for resort to expert
evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no -contest is had) was derived from
the rule established for ordinary testaments (cf. Cabang vs.Delfinado, 45 Phil.,
291; Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the
requirement can be considered mandatory only in the case of ordinary testaments,
precisely because the presence of at least three witnesses at the execution of

ordinary wills is made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (Art. 10), and the rule requiring production
of three witnesses must be deemed merely permissive if absurd results are to be
avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the
words "if the Court deem it necessary", which reveal that what the law deems
essential is that the Court should be convinced of the will's authenticity. Where the
prescribed number of witnesses is produced and the court is convinced by their
testimony that the will is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or none of those
produced is convincing, the Court may still, and in fact it should, resort to
handwriting experts. The duty of the court, in fine, is to exhaust all available lines
of inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of
1889, the noted Commentator, Mucius Scaevola (Vol. 12, 2nd Ed., p. 421), sagely
remarks:
"La manera como est concebida la redaccin del ltimo apartado de dicho precepto induce
la conclusin de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe
acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento
olgrafo, aunque ya estn insertas en los autos del expediente las declaraciones testificales.
La prudencia con que el Juez debe de proceder en resoluciones de transcendencia asi lo
exige, y la ndole delicada y peligrosa del testamento olgrafo lo hace necesario para mayor
garanta de todos los intereses comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho
profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al
Juez acerca de la autenticidad que trata de averiguar y declarar. Para eso se ha escrito la
frase del citado ltimo apartado, (siempre que el Juez lo estime conveniente), haya habido o
no testigos y dudaran o no estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe de formarse con independencia de los sucesos y de
su significacin, para responder debidamente de las resoluciones que haya de dictar."

And because the law leaves it to the trial court to decide if experts are still needed,
no unfavourable inference can be drawn from a party's failure to offer expert

evidence, until and unless the court expresses dissatisfaction with the testimony of
the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil
Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been
called upon to construe the import of said article, the interest of justice would be
better served, in our opinion, by giving the parties ample opportunity to adduce
additional evidence, including expert witnesses, should the Court deem them
necessary.
In view of the foregoing, the decision appealed from is set aside, and the records
ordered remanded to the Court of origin, with instructions to hold a new trial in
conformity with this opinion. But evidence already on record shall not be retaken.
No costs.
Bengzon, Padilla, Bautista
Angelo, Labrador,Concepcin, Barrera, and Gutirrez David, JJ., concur.
Judgment set aside, records remanded to lower court for new trial.
______________

G.R. No. 123486. August 12, 1999.

EUGENIA
RAMONAL
CODOY
and
MANUEL
RAMONAL,
petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO and
EUFEMIA PATIGAS, respondents.
Wills and Succession; Holographic Wills; Statutory Construction; Words and
Phrases; Article 811 of the Civil Code is mandatory; Shall in a statute commonly denotes
an imperative obligation and is inconsistent with the idea of discretion and that the
presumption is that the word shall, when used in a statute, is mandatory.We are
convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The

word shall connotes a mandatory order. We have ruled that shall in a statute commonly
denotes an imperative obligation and is inconsistent with the idea of discretion and that the
presumption is that the word shall, when used in a statute, is mandatory.
Same; Same; Same; The goal to be achieved by Article 811 is to give effect to the wishes
of the deceased and the evil to be prevented is the possibility that unscrupulous individuals
who for their benefit will employ means to defeat the wishes of the testator.Laws are enacted
to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In
the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil
to be prevented is the possibility that unscrupulous individuals who for their benefit will
employ means to defeat the wishes of the testator.
Same; Same; Same; The possibility of a false document being adjudged as the will of
the testator cannot be eliminated, which is why if the holographic will is contested, the law
requires three witnesses to declare that the will was in the handwriting of the deceased.In
the case of Ajero vs. Court of Appeals, we said that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will
of the testator, which is why if the holographic will is contested, that law requires three
witnesses to declare that the will was in the handwriting of the deceased.

PETITION for review on certiorari of a decision of the Court of Appeals.


The facts are stated in the opinion of the Court.
Amadeo D. Seno for petitioners.
Roderico C. Villaroya for private respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of
Appeals and its resolution denying reconsideration, ruling:
1

Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators holographic will has been established and

the handwriting and signature therein (Exhibit S) are hers, enough to probate said will.
Reversal of the judgment appealed from and the probate of the holographic will in question
be called for. The rule is that after plaintiff has completed presentation of his evidence and
the defendant files a motion for judgment on demurrer to evidence on the ground that upon
the facts and the law plaintiff has shown no right to relief, if the motion is granted and the
order to dismissal is reversed on appeal, the movant loses his right to present evidence in
his behalf (Sec. 1, Rule 35, Revised Rules of Court). Judgment may, therefore, be rendered
for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered allowing the
probate of the holographic will of the testator Matilde Seo Vda. de Ramonal.
2

The facts are as follows:


On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de
Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a
petition for probate of the holographic will of the deceased, who died on January 16,
1990.
3

In the petition, respondents claimed that the deceased Matilde Seo Vda. de
Ramonal, was of sound and disposing mind when she executed the will on August
30, 1978, that there was no fraud, undue influence, and duress employed in the
person of the testator, and the will was written voluntarily.
The assessed value of the decedents property, including all real and personal
property was about P400,000.00, at the time of her death.
4

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition to the petition for probate, alleging that the holographic will was a
forgery and that the same is even illegible. This gives an impression that a third
hand of an interested party other than the true hand of Matilde Seo Vda. de
Ramonal executed the holographic will.
5

Petitioners argued that the repeated dates incorporated or appearing on the will
after every disposition is out of the ordinary. If the deceased was the one who
executed the will, and was not forced, the dates and the signature should appear at
the bottom after the dispositions, as regularly done and not after every disposition.
And assuming that the holographic will is in the handwriting of the deceased, it was

procured by undue and improper pressure and influence on the part of the
beneficiaries, or through fraud and trickery.
Respondents presented six (6) witnesses and various documentary evidence.
Petitioners instead of presenting their evidence, filed a demurrer to evidence,
claiming that respondents failed to establish sufficient factual and legal basis for
the probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal.
6

On November 26, 1990, the lower Court issued an order, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having
being well taken, same is granted, and the petition for probate of the document (Exhibit
S) on the purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied
for insufficiency of evidence and lack of merits.
7

On December 12, 1990, respondents filed a notice of appeal, and in support of their
appeal, the respondents once again reiterated the testimony of the following
witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal
Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
8

To have a clear understanding of the testimonies of the witnesses, we recite an


account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where
the special proceedings for the probate of the holographic will of the deceased was
filed. He produced and identified the records of the case. The documents presented
bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose
of laying the basis for comparison of the handwriting of the testatrix, with the
writing treated or admitted as genuine by the party against whom the evidence is
offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produce
and identify the voters affidavit of the decedent. However, the voters affidavit was
not produced for the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matildes husband, the latter

lived with her in her parents house for eleven (11) years, from 1958 to 1969. During
those eleven (11) years of close association with the deceased, she acquired
familiarity with her signature and handwriting as she used to accompany her
(deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various
tenants of commercial buildings, and the deceased always issued receipts. In
addition to this, she (witness Matilde Binanay) assisted the deceased in posting the
records of the accounts, and carried personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978, which
was personally and entirely written, dated and signed, by the deceased and that all
the dispositions therein, the dates, and the signatures in said will, were that of the
deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan
de Oro, he was a practicing lawyer, and handled all the pleadings and documents
signed by the deceased in connection with the intestate proceedings of her late
husband, as a result of which he is familiar with the handwriting of the latter. He
testified that the signature appearing in the holographic will was similar to that of
the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testified that
she processed the application of the deceased for pasture permit and was familiar
with the signature of the deceased, since the deceased signed documents in her
presence, when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived
with the deceased since birth, and was in fact adopted by the latter. That after a
long period of time she became familiar with the signature of the deceased. She
testified that the signature appearing in the holographic will is the true and
genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as
follows:
Instruction

***
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelrys shall be divided among:
1. 1.Eufemia Patigas
2. 2.Josefina Salcedo
3. 3.Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R.
Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal

August 30,1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered deci-sion ruling that the appeal
was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102,
penned by Mr. Justice J.B.L. Reyes, a recognized authority in civil law, the Court of
Appeals held:
9

x x x even if the genuineness of the holographic will were contested, we are of the opinion
that Article 811 of our present civil code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at the execution of the
holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious
that the existence of witnesses possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses who know the handwriting and signature of the
testator and who can declare (truthfully, of course, even if the law does not express) that
the will and the signature are in the handwriting of the testator. There may be no
available witness acquainted with the testators hand; or even if so familiarized, the witness
may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of
article 811 may thus become an impossibility. That is evidently the reason why the second
paragraph of article 811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found
(or what amounts to the same thing, that no competent witness may be willing to testify to
the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented
if the will is contested and only one if no contest is had) was derived from the rule

established for ordinary testaments (CF Cabang vs. Delfinado, 45 Phil. 291; Tolentino v.
Francisco, 57 Phil. 742). But it can not be ignored that the requirement can be considered
mandatory only in case of ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law essential to their validity
(Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule
requiring production of three witnesses must be deemed merely permissive if absurd results
are to be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by the words if the
court deem it necessary, which reveal that what the law deems essential is that the court
should be convinced of the wills authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the will is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the court may still, and in fact
it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
the having the probate denied. No witness need be present in the execution of the
holographic will. And the rule requiring the production of three witnesses is merely
permissive. What the law deems essential is that the court is convinced of the authenticity
of the will. Its duty is to exhaust all available lines of inquiry, for the state is as much
interested in the proponent that the true intention of the testator be carried into effect. And
because the law leaves it to the trial court to decide if experts are still needed, no
unfavorable inference can be drawn from a partys failure to offer expert evidence, until and
unless the court expresses dissatisfaction with the testimony of the lay witnesses.
10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay


and other witnesses definitely and in no uncertain terms testified that the
handwriting and signature in the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity
of the holographic will and the handwriting and signature therein, and allowed the
will to probate.
Hence, this petition.

The petitioners raise the following issues:


1. (1)Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied
upon by the respondent Court of Appeals, was applicable to the case.

2. (2)Whether or not the Court of Appeals erred in holding that private respondents
had been able to present credible evidence to prove that the date, text, and
signature on the holographic will were written entirely in the hand of the testatrix.
3. (3)Whether or not the Court of Appeals erred in not analyzing the signatures in the
holographic will of Matilde Seo Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil
Code are permissive or mandatory. The article provides, as a requirement for the
probate of a contested holographic will, that at least three witnesses explicitly
declare that the signature in the will is the genuine signature of the testator.
We are convinced, based on the language used, that Article 811 of the Civil Code
is mandatory. The word shall connotes a mandatory order. We have ruled that
shall in a statute commonly denotes an imperative obligation and is inconsistent
with the idea of discretion and that the presumption is that the word shall, when
used in a statute, is mandatory.
11

Laws are enacted to achieve a goal intended and to guide against an evil or
mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect
to the wishes of the deceased and the evil to be prevented is the possibility that
unscrupulous individuals who for their benefit will employ means to defeat the
wishes of the testator.
So, we believe that the paramount consideration in the present petition is to
determine the true intent of the deceased.
An exhaustive and objective consideration of the evidence is imperative to establish
the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified
explicitly that they were familiar with the handwriting of the testator. In the case of
Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely
identified the record of Special Proceedings No. 427 before said court. He was not

presented to declare explicitly that the signature appearing in the holographic was
that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented
to identify the signature of the deceased in the voters affidavit, which was not even
produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:

Q
.

And you said for eleven (11) years Matilde Vda. de


Ramonal resided with your parents at Pinikitan, Cagayan
de Oro City. Would you tell the court what was your occ
upation or how did Matilde Vda. de Ramonal keep her self
busy that time?

A
.

Collecting rentals.

Q
.

From where?

A
.

From the land rentals and commercial buildings at


Pabayo-Gomez streets.
12

xxx
Q
.

Who sometime accompany her?

A
.

I sometimes accompany her

Q
.

In collecting rentals does she issue receipts?

A
.

Yes, sir.

13

xxx
Q
.

Showing to you the receipt dated 23 October 1979, is this


the one you are referring to as one of the receipts which
she issued to them?

A
.

Yes, sir.

Q
.

Now there is that signature of Matilde Vda. De Ramonal,


whose signature is that Mrs. Binanay?

A
.

Matilde Vda. De Ramonal.

Q
.

Why do you say that that is a signature of Matilde Vda.


De Ramonal?

A
.

I am familiar with her signature.

Q
.

Now, you tell the court Mrs. Binanay, whether you know
Matilde Vda. de Ramonal kept records of the accounts of
her tenants?

A
.

Yes, sir.

Q
.

Why do you say so?

A
.

Because we sometimes post a record of accounts in behalf


of Matilde Vda. De Ramonal.

Q
.

How is this record of accounts made? How is this


reflected?

A
.

In handwritten.

14

xxx
Q
.

In addition to collection of rentals, posting records of


accounts of tenants and deed of sale which you said what
else did you do to acquire familiarity of the signature of
Matilde Vda. De Ramonal?

A
.

Posting records.

Q
.

Aside from that?

A
.

Carrying letters.

Q
.

Letters of whom?

A
.

Matilde

Q
.

To whom?

A
.

To her creditors.

15

xxx
Q
.

You testified that at the time of her death she left a will. I
am showing to you a document with its title tugon is
this the document you are referring to?

A
.

Yes, sir.

Q
.

Showing to you this Exhibit S, there is that handwritten


tugon, whose handwriting is this?

A
.

My aunt.

Q
.

Why do you say this is the handwriting of your aunt?

A
.

Because I am familiar with her signature.

16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased,
which she either mailed or gave to her tenants. She did not declare that she saw the
deceased sign a document or write a note.

Further, during the cross-examination, the counsel for petitioners elicited the fact
that the will was not found in the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:

Q
.

Mrs. Binanay, when you were asked by counsel for the


petitioners if the late Matilde Seno Vda. de Ramonal left a
will you said, yes?

A
.

Yes, sir.

Q
.

Who was in possession of that will?

A
.

I.

Q
.

Since when did you have the possession of the will?

A
.

It was in my mothers possession.

Q
.

So, it was not in your possession?

A
.

Sorry, yes.

Q
.

And when did you come into possession since as you said
this was originally in the possession of your mother?

A
.

1985.

17

xxx
Q
.

Now, Mrs. Binanay was there any particular reason why


your mother left that will to you and therefore you have
that in your possession?

A
.

It was not given to me by my mother, I took that in the


aparador when she died.

Q
.

After taking that document you kept it with you?

A
.

I presented it to the fiscal.

Q
.

For what purpose?

A
.

Just to seek advice.

Q
.

Advice of what?

A
.

About the will.

18

In her testimony it was also evident that Ms. Binanay kept the fact about the will
from petitioners, the legally adopted children of the deceased. Such actions put in

issue her motive of keeping the will a secret to petitioners and revealing it only after
the death of Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:

Q
.

Now, in 1978 Matilde Seno Vda. de Ramonal was not yet


a sickly person is that correct?

A
.

Yes, sir.

Q
.

She was up and about and was still uprightly and she
could walk agilely and she could go to her building to
collect rentals, is that correct?

A
.

Yes, sir.

19

xxx
Q
.

Now, let us go to the third signature of Matilde Ramonal.


Do you know that there are retracings in the word Vda.?

A
.

Yes, a little. The letter L is continuous.

Q
.

And also in Matilde the letter L is continued to letter D?

A
.

Yes, sir.

Q
.

Again the third signature of Matilde Vda. de Ramonal the


letter L in Matilde is continued towards letter D.

A
.

Yes, sir.

Q
.

And there is a retracing in the word Vda.?

A
.

Yes, sir.

20

xxx
Q
.

Now, that was 1979, remember one year after the alleged
holographic will. Now, you identified a document marked
as Exhibit R. This is dated January 8, 1978 which is
onlyabout eight months from August 30, 1978. Do you
notice that the signature Matilde Vda. de Ramonal is
beautifully written and legible?

A
.

Yes, sir the handwriting shows that she was very


exhausted.

Q
.

You just say that she was very exhausted while that in
1978 she was healthy was not sickly and she was agile.
Now, you said she was exhausted?

A
.

In writing.

Q
.

How did you know that she was exhausted when you were
not present and you just tried to explain yourself out

because of the apparent inconsistencies?


A
.

That was I think. (sic)

Q
.

Now, you already observed this signature dated 1978, the


same year as the alleged holographic will. In exhibit I, you
will notice that there is no retracing; there is no hesitancy
and the signature was written on a fluid movement. x x x
And in fact, the name Eufemia R. Patigas here refers to
one of the petitioners?

A
.

Yes, sir.

Q
.

You will also notice Mrs. Binanay that it is not only with
the questioned signature appearing in the alleged
holographic will marked as Exhibit X but in the
handwriting themselves, here you will notice the hesitancy
and tremors, do you notice that?

A
.

Yes, sir.

21

Evangeline Calugay declared that the holographic will was written, dated and
signed in the handwriting of the testator. She testified that:

Q
.

You testified that you stayed with the house of the spouses
Matilde and Justo Ramonal for the period of 22 years.
Could you tell the court the services if any which you
rendered to Matilde Ramonal?

A
.

During my stay I used to go with her to the church, to the


market and then to her transactions.

Q
.

What else? What services that you rendered?

A
.

After my college days I assisted her in going to the bank,


paying taxes and to her lawyer.

Q
.

What was your purpose of going to her lawyer?

A
.

I used to be her personal driver.

Q
.

In the course of your stay for 22 years did you acquire


familiarity of the handwriting of Matilde Vda. de
Ramonal?

A
.

Yes, sir.

Q
.

How come that you acquired familiarity?

A
.

Because I lived with her since birth.

22

xxx
Q
.

Now, I am showing to you Exhibit S which is captioned


tugon dated Agosto 30, 1978 there is a signature here
below item No. 1, will you tell this court whose signature
is this?

Yes, sir, that is her signature.

.
Q
.

Why do you say that is her signature?

A
.

I am familiar with her signature.

23

So, the only reason that Evangeline can give as to why she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:

Q
.

Do you know Matilde Vda. de Ramonal?

A
.

Yes, sir I know her because she is my godmother the


husband is my godfather. Actually I am related to the
husband by consanguinity.

Q
.

Can you tell the name of the husband?

A
.

The late husband is Justo Ramonal.

xxx

24

Q
.

Can you tell this court whether the spouses Justo Ramonal
and Matilde Ramonal have legitimate children?

A
.

As far as I know they have no legitimate children.

25

xxx
Q
.

You said after becoming a lawyer you practice your


profession? Where?

A
.

Here in Cagayan de Oro City.

Q
.

Do you have services rendered with the deceased Matilde


Vda. de Ramonal?

A
.

I assisted her in terminating the partition, of properties.

Q
.

When you said assisted, you acted as her counsel? Any


sort of counsel as in what case is that, Fiscal?

A
.

It is about the project partition to terminate the property,


which was under the court before.
26

xxx
Q
.

Appearing in special proceeding No. 427 is the amended


inventory which is marked as Exhibit N of the estate of
Justo Ramonal and there appears a signature over the type
written word Matilde vda de Ramonal, whose signature is

this?
A
.

That is the signature of Matilde Vda. de Ramonal.

Q
.

Also in Exhibit n-3, whose signature is this?

A
.

This one here that is the signature of Mrs. Matilde Vda. de


Ramonal.
27

xxx
Q
.

Aside from attending as counsel in that Special


Proceeding Case No. 427 what were the other assistance
wherein you were rendering professional service to the
deceased Matilde Vda. de Ramonal?

A
.

I can not remember if I have assisted her in other matters


but if there are documents to show that I have assisted
then I can recall.
28

xxx
Q
.

Now, I am showing to you exhibit S which is titled


tugon, kindly go over this document, Fiscal Waga and
tell the court whether you are familiar with the handw
riting contained in that document marked as exhibit S?

A
.

I am not familiar with the handwriting.

This one, Matilde Vda. de Ramonal, whose signature is

this?

A
.

I think this signature here it seems to be the signature of


Mrs. Matilde Vda. de Ramonal.

Q
.

Now, in item No. 2 there is that signature here of Matilde


Vda. de Ramonal, can you tell the court whose signature is
this?

A
.

Well, that is similar to that signature appearing in the


project of partition.

Q
.

Also in item no. 3 there is that signature Matilde Vda. de


Ramonal, can you tell the court whose signature is that?

A
.

As I said, this signature also seems to be the signature of


Matilde Vda. de Ramonal.

Q
.

Why do you say that?

A
.

Because there is a similarity in the way it is being written.

Q
.

How about this signature in item no. 4, can you tell the
court whose signature is this?

A
.

The same is true with the signature in item no. 4. It seems


that they are similar.
29

xxx

Q
.

Mr. Prosecutor, I heard you when you said that the


signature of Matilde Vda. de Ramonal Appearing in
exhibit S seems to be the signature of Matilde Vda. de
Ramonal?

A
.

Yes, it is similar to the project of partition.

So you are not definite that this is the signature of Matilde


Vda. de Ramonal. You are merely supposing that it seems
to be her signature because it is similar to the signature of
the project of partition which you have made?

A
.

That is true.

30

From the testimonies of these witnesses, the Court of Appeals allowed the will to
probate and disregard the requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola vs. Singson, ruling that the
requirement is merely directory and not mandatory.
31

In the case of Ajero vs. Court of Appeals, we said that the object of the
solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore, the laws on this subject should be interpreted in such a
way as to attain these primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will.
32

However, we cannot eliminate the possibility of a false document being adjudged


as the will of the testator, which is why if the holographic will is contested, that law
requires three witnesses to declare that the will was in the handwriting of the
deceased.
The will was found not in the personal belongings of the deceased but with one of
the respondents, who kept it even before the death of the deceased. In the testimony

of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or
five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by her
during her lifetime. The only chance at comparison was during the crossexamination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to
compare the documents which contained the signature of the deceased with that of
the holographic will and she is not a handwriting expert. Even the former lawyer of
the deceased expressed doubts as to the authenticity of the signature in the
holographic will.
A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The
signature of the testator in some of the disposition is not readable. There were
uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978, and the
33

signatures in several documents such as the application letter for pasture permit
dated December 30, 1980, and a letter dated June 16, 1978, the strokes are
34

35

different. In the letters, there are continuous flows of the strokes, evidencing that
there is no hesitation in writing unlike that of the holographic will. We, therefore,
cannot be certain that the holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are
ordered remanded to the court of origin with instructions to allow petitioners to
adduce evidence in support of their opposition to the probate of the holographic will
of the deceased Matilde Seo Vda. de Ramonal.
No costs.
SO ORDERED.
Davide, Jr. (C.J.), Puno, Kapunan and Ynares-Santiago, JJ.,concur.
Appealed decision set aside.

Notes.The requirements of Article 813 of the New Civil Code affects the validity of the
dispositions contained in the holographic will, but not its probate. (Ajero vs. Court of
Appeals, 236 SCRA 488 [1994])
A will is essentially ambulatoryat any time prior to the testators death, it may be
changed or revoked, and until admitted to probate, it has no effect whatever and no right can be claimed thereunder; An
owners intention to confer title in the future to persons possessing property by his
tolerance is not inconsistent with the formers taking back possession in the meantime for
any reason deemed sufficient. (Caiza vs. Court of Appeals, 268 SCRA 640[1997])

o0o

G.R. No. 106720. September 15, 1994.

SPOUSES ROBERTO AND THELMA AJERO, petitioners,vs. THE COURT OF


APPEALS AND CLEMENTE SAND, respondents.
Succession; Wills; Holographic Wills; Probate Proceedings;The grounds enumerated in
the Civil Code and Rules of Court for the disallowance of wills are exclusive; Issues in a
petition to admit a holographic will to probate.Section 9, Rule 76 of the Rules of Court
provides the cases in which wills shall be disallowed. In the same vein, Article 839 of the
New Civil Code enumerates the grounds for disallowance of wills. These lists are exclusive;
no other grounds can serve to disallow a will. Thus, in a petition to admit a holographic will
to probate, the only issues to be resolved are: (1) whether the instrument submitted is,
indeed, the decedents last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent had the
necessary testamentary capacity at the time the will was executed; and, (4) whether the
execution of the will and its signing were the voluntary acts of the decedent.
Same; Same; Same; Same; Statutory Construction; The object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud,
accordingly, laws on this subject should be interpreted to attain these primordial ends.We
reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that: The object
of the solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless
and frustrative of the testators last will, must be disregarded. For purposes of probating
non-holographic wills, these formal solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of the New Civil Code.
Same; Same; Same; Same; Failure to strictly observe other formalities will not result in
the disallowance of a holographic will that is unquestionably handwritten by the testator.

In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator himself, as
provided under Article 810 of the New Civil Code. Failure to strictly observe other
formalities will not result in the disallowance of a holographic will that is unquestionably
handwritten by the testator.
Same; Same; Same; Same; The requirement of Article 813 of the New Civil Code affects
the validity of the dispositions contained in the holographic will, but not its probate.A
reading of Article 813 of the New Civil Code shows that its requirement affects the validity
of the dispositions contained in the holographic will, but not its probate. If the testator fails
to sign and date some of the dispositions, the result is that these dispositions cannot be
effectuated. Such failure, however, does not render the whole testament void.
Same; Same; Same; Same; Unauthenticated alterations, cancellations or insertions do
not invalidate a holographic will, unless they were made on the date or on testators
signature.Likewise, a holographic will can still be admitted to probate, notwithstanding
noncompliance with the provisions of Article 814. Thus, unless the unauthenticated
alterations, cancellations or insertions were made on the date of the holographic will or on
testators signature, their presence does not invalidate the will itself. The lack of
authentication will only result in disallowance of such changes.
Same; Same; Same; Same; Only the requirements of Article 810 of the New Civil Code
and not those found in Articles 813 and 814are essential to the probate of a holographic
will.It is also proper to note that the requirements of authentication of changes and
signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from
that which provides for the necessary conditions for the validity of the holographic will
(Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil
Code, from which the present provisions covering holographic wills are taken. This
separation and distinction adds support to the interpretation that only the requirements of
Article 810 of the New Civil Codeand not those found in Article 813 and 814 of the same
Codeare essential to the probate of a holographic will.
Same; Same; Same; Same; Probate Courts; While courts in probate proceedings are
generally limited to pass only upon the extrinsic validity of the will sought to be probated, in
exceptional cases, courts are not powerless to do what the situation constrains them to do,
and pass upon certain provisions of the will.As a general rule, courts in probate
proceedings are limited to pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not powerless to do what the
situation constrains them to do, and pass upon certain provisions of the will. In the case at
bench, decedent herself indubitably stated in her holographic will that the Cabadbaran

property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero
to question her conveyance of the same in its entirety). Thus, as correctly held by
respondent court, she cannot validly dispose of the whole property, which she shares with
her fathers other heirs.

PETITION for review on certiorari of a decision of the Court of Appeals.


The facts are stated in the opinion of the Court.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of Appeals in CA-G.R.
CV No. 22840, dated March 30, 1992, the dispositive portion of which reads:
1

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial
court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, in Sp.
Proc. No. Q-37171, and the instrument submitted for probate is the holographic will
of the late Annie Sand, who died on November 25, 1982.
2

In the will, decedent named as devisees, the following: petitioners Roberto and
Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand,
Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their
children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance
of decedents holographic will. They alleged that at the time of its execution, she was
of sound and disposing mind, not acting under duress, fraud or undue influence, and
was in every respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the
testaments body nor the signature therein was in decedents handwriting; it
contained alterations and corrections which were not duly signed by decedent; and,

the will was procured by petitioners through improper pressure and undue
influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the
disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte.
He claimed that said property could not be conveyed by decedent in its entirety, as
she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedents
holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only the question of
identity of the will, its due execution and the testamentary capacity of the testatrix, this
probate court finds no reason at all for the disallowance of the will for its failure to comply
with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is different from
the will actually executed by the testatrix. The only objections raised by the oppositors x x x
are that the will was not written in the handwriting of the testatrix which properly refers to
the question of its due execution, and not to the question of identity of will. No other will
was alleged to have been executed by the testatrix other than the will herein presented.
Hence, in the light of the evidence adduced, the identity of the will presented for probate
must be accepted, i.e., the will submitted in Court must be deemed to be the will actually
executed by the testatrix.
x x x

xxx

xxx

While the fact that it was entirely written, dated and signed in the handwriting of the
testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court
that the holographic will in question was indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of
the handwriting of the testatrix have been presented and have explicitly and categorically
identified the handwriting with which the holographic will in question was written to be the
genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will be entirely written, dated and signed in
the handwriting of the testatrix has been complied with.
x x x

xxx

xxx

As to the question of the testamentary capacity of the testatrix, (private respondent)


Clemente Sand himself has testified in Court that the testatrix was completely in her sound
mind when he visited her during her birthday celebration in 1981, at or around which time

the holographic will in question was executed by the testatrix. To be of sound mind, it is
sufficient that the testatrix, at the time of making the will, knew the value of the estate to
be disposed of, the proper object of her bounty, and thecharacter of the testamentary act x x
x. The will itself shows that the testatrix even had detailed knowledge of the nature of her
estate. She even identified the lot number and square meters of the lots she had conveyed by
will. The objects of her bounty were likewise identified explicitly. And considering that she
had even written a nursing book which contained the law and jurisprudence on will and
succession, there is more than sufficient showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will, its due execution and the testamentary
capacity of the testatrix has to be resolved in favor of the allowance of probate of the will
submitted herein.
Likewise, no evidence was presented to show sufficient reason for the disallowance of
herein holographic will. While it was alleged that the said will was procured by undue and
improper pressure and influence on the part of the beneficiary or of some other person, the
evidence adduced have not shown any instance where improper pressure or influence was
exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix
was still alert at the time of the execution of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also established that she is a very intelligent person
and has a mind of her own. Her independence of character and to some extent, her sense of
superiority, which has been testified to in Court, all show the unlikelihood of her being
unduly influenced or improperly pressured to make the aforesaid will. It must be noted that
the undue influence or improper pressure in question herein only refer to the making of a
will and not as to the specific testamentary provisions therein which is the proper subject of
another proceeding. Hence, under the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine in the law on succession that in
case of doubt, testate succession should be preferred over intestate succession, and the fact
that no convincing grounds were presented and proven for the disallowance of the
holographic will of the late Annie Sand, the aforesaid will submitted herein must be
admitted to probate. (Citations omitted.)
3

On appeal, said Decision was reversed, and the petition for probate of decedents
will was dismissed. The Court of Appeals found that, the holographic will fails to
meet the requirements for its validity. It held that the decedent did not comply
with Articles 813 and 814 of the New Civil Code, which read, as follows:
4

Article 813: When a number of dispositions appearing in a holographic will are signed
without being dated, and the last disposition has a signature and date, such date validates
the dispositions preceding it, whatever be the time of prior dispositions.
Article 814: In case of insertion, cancellation, erasure or alteration in a holographic will,
the testator must authenticate the same by his full signature.

It alluded to certain dispositions in the will which were either unsigned and
undated, or signed but not dated. It also found that the erasures, alterations and
cancellations made thereon had not been authenticated by decedent.
Thus, this appeal is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in
any of the following cases:
1. (a)If not executed and attested as required by law;
2. (b)If the testator was insane, or otherwise mentally incapable to make a will, at the
time of its execution;
3. (c)If it was executed under duress, or the influence of fear, or threats;
4. (d)If it was procured by undue and improper pressure and influence, on the part of
the beneficiary, or of some other person for his benefit;
5. (e)If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature
thereto.

In the same vein, Article 839 of the New Civil Code reads:
Article 839: The will shall be disallowed in any of the following cases:
1. (1)If the formalities required by law have not been complied with;
2. (2)If the testator was insane, or otherwise mentally incapable of making a will, at
the time of its execution;
3. (3)If it was executed through force or under duress, or the influence of fear, or
threats;

4. (4)If it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person;
5. (5)If the signature of the testator was procured by fraud;
6. (6)If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a
petition to admit a holographic will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the decedents last will and
testament; (2) whether said will was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the necessary testamentary
capacity at the time the will was executed; and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedent.
5

In the case at bench, respondent court held that the holographic will of Anne
Sand was not executed in accordance with the formalities prescribed by law. It held
that Articles 813 and 814 of the New Civil Code, ante, were not complied with,
hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479
(1919), that:
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore, the laws on this subject should be interpreted in such a
way as to attain these primordial ends. But, on the other hand, also one must not lose sight
of the fact that it is not the object of the law to restrain and curtail the exercise of the right
to make a will. So when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testators last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include


the subscription, attestation, and acknowledgment requirements under Articles 805
and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is
the requirement that they be totally autographic or handwritten by the testator
himself,7 as provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to no other form, and may be made in or out
of the Philippines, and need not be witnessed. (Italics supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects
the validity of the dispositionscontained in the holographic will, but not its probate.
If the testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding
non-compliance with the provisions of Article 814. In the case of Kalaw vs.
Relova,132 SCRA 237, 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations made by the
testator in a holographic Will have not been noted under his signature, x x x the Will is not
thereby invalidated as a whole, but at most only as respects the particular words erased,
corrected or interlined. Manresa gave an identical commentary when he said la omision de
la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895. (Citations omitted.)
8

Thus, unless the unauthenticated alterations, cancellations or insertions were made


on the date of the holographic will or ontestators signature, their presence does not
invalidate the will itself. The lack of authentication will only result in disallowance
of such changes.
9

10

It is also proper to note that the requirements of authentication of changes and


signing and dating of dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to Articles 678 and 688

of the Spanish Civil Code, from which the present provisions covering holographic
wills are taken. They read as follows:
Article 678: A will is called holographic when the testator writes it himself in the form and
with the requisites required in Article 688.
Article 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper corresponding to the
year of its execution, written in its entirety by the testator and signed by him, and must
contain a statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator must identify
them over his signature. Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Codeand not those found in Articles
813 and 814 of the same Codeare essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly
dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its
entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional
instances, courts are not powerless to do what the situation constrains them to do,
and pass upon certain provisions of the will. In the case at bench, decedent herself
indubitably stated in her holographic will that the Cabadbaran property is in the
name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus, as correctly held by
respondent court, she cannot validly dispose of the whole property, which she shares
with her fathers other heirs.
11

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the


Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED
and SET ASIDE, except with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial
Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19,

1988, admitting to probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the Cabadbaran property.
No costs.
SO ORDERED.
Narvasa (C.J., Chairman) Padilla, Regalado andMendoza, JJ., concur.
Petition granted. Judgment reversed and set aside.
Note.Attestation clause is valid even if in a language not known to testator.
(Caneda vs. Court of Appeals, 222 SCRA 781 [1993])
o0o

No. L-40207. September 28, 1984.

ROSA K. KALAW, petitioner, vs. HON. JUDGE BENJAMIN RELOVA, Presiding


Judge of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW,
respondents.
Settlement of Estate; Ordinarily erasures or alterations in a holographic will does not
invalidate the will itselfOrdinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have not been noted under his
signature, x x x the Will is not thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or interlined. Manresa gave an identical commentary
when he said la omision de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895.
Same; Where a holographic will has designate only one heir to the entire estate and the
designation was cancelled and another sole heir designated, without the cancellation being
authenticated by full signature of testator, entire will is void.However, when as in this
case, the holographic Will in dispute had only one substantial provision, which was altered
by substituting the original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator, the effect must be that
the entire Will is voided or revoked for the simple reason that nothing remains in the Will
after that which could remain valid. To state that the Will as first written should be given

efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind
can neither be given effect because she failed to authenticate it in the manner required by
law by affixing her full signature.
Same; Same.The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of
the altered words themselves but not the essence and validity of the Will itself. As it is, with
the erasures, cancellations and alterations made by the testatrix herein, her real intention
cannot be determined with certitude.

TEEHANKEE, J., concurring:


Settlement of Estate; Certiorari; Petitioner Rosa is bound by the factual finding of the
trial court that testator herself crossed-out Rosas name as sole heir. Hence, the substitution
of Gregorio as sole heir even if void for not being authenticated as prescribed by law will not
result in Rosa being declared heir.I concur. Rosa, having appealed to this Court on a sole
question of law, is bound by the trial courts factual finding that the peculiar alterations in
the holographic will crossing out Rosas name and instead inserting her brother Gregorios
name as sole heir and sole executrix were made by the testatrix in her own handwriting.
(I find it peculiar that the testatrix who was obviously an educated person would
unthinkingly make such crude alterations instead of consulting her lawyer and writing an
entirely new holographic will in order to avoid any doubts as to her change of heir. It should
be noted that the first alteration crossing out sister Rosa K. Kalaw and inserting brother
Gregorio Kalaw as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out sister Rosa K. Kalaw and inserting brother Gregorio Kalaw as
sole executrix is initialed.) Probate of the radically altered will replacing Gregorio for Rosa
as sole heir is properly denied, since the same was not duly authenticated by the full
signature of the executrix as mandatorily required by Article 814 of the Civil Code. The
original unaltered will naming Rosa as sole heir cannot, however, be given effect in view of
the trial courts factual finding that the testatrix had by her own handwriting substituted
Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net
result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kin
succeed to her intestate estate.

PETITION for certiorari to review the decision of the Court of First Instance of
Batangas, Br. VI. Relova, J.
The facts are stated in the opinion of the Court.
Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.


MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be
the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the
Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her
holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw
opposed probate alleging, in substance, that the holographic Will contained
alterations, corrections, and insertions without the proper authentication by the full
signature of the testatrix as required by Article 814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will,
the testator must authenticate the same by his full signature.

ROSAs position was that the holographic Will, as first written, should be given
effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 1973,
reading in part:
The document Exhibit C was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same person. Consequently, Exhibit C
was the handwriting of the decedent, Natividad K. Kalaw. The only question is whether the
will, Exhibit C, should be admitted to probate although the alterations and/or insertions or
additions above-mentioned were not authenticated by the full signature of the testatrix
pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru
their counsel to submit the Document to the NBI FOR EXAMINATIONS. This is untenable.
The parties did not agree, nor was it impliedly understood, that the oppositors would be in
estoppel.

The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit C. Finding the insertions, alterations and/or additions in Exhibit C
not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court
will deny the admission to probate of Exhibit C.
WHEREFORE, the petition to probate Exhibit C as the holographic will of Natividad
K. Kalaw is hereby denied.
SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the
alterations and/or insertions were made by the testatrix, the denial to probate of her
holographic Will would be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November 2, 1973, on the ground
that Article 814 of the Civil Code being clear and explicit, (it) requires no necessity
for interpretation.
From that Order, dated September 3, 1973, denying probate, and the Order dated
November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on
Certiorari on the sole legal question of whether or not theoriginal unaltered text
after subsequent alterations and insertions were voided by the Trial Court for lack
of authentication by the full signature of the testatrix, should be probated or not,
with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the
testator in a holographic Will have not been noted under his signature, x x x the
Will is not thereby invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined. Manresa gave an identical
commentary when he said la omision de la salvedad no anula el testamento, segun
la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895.
1

However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication by
the full signature of the testator, the effect must be that the entire Will is voided or
revoked for the simple reason that nothing remains in the Will after that which
could remain valid. To state that the Will as first written should be given efficacy is
to disregard the seeming change of mind of the testatrix. But that change of mind

can neither be given effect because she failed to authenticate it in the manner
required by law by affixing her full signature.
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only the
efficacy of the altered words themselves but not the essence and validity of the Will
itself. As it is, with the erasures, cancellations and alterations made by the testatrix
herein, her real intention cannot be determined with certitude. As Manresa had
stated in his commentary on Article 688 of the Spanish Civil Code, whence Article
814 of the new Civil Code was derived:
x x x No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no
declara la nulidad de un testamento olografo que contenga palabras tachadas, enmendadas
o entre renglones, no salvadas por el testador bajo su firma, segun previene el parrafo
tercero del mismo, porque, en realidad, tal omision solo puede afectar a la validez o eficacia
de tales palabras, y nunca al testamento mismo, ya por estar esa disposition en parrafo
aparte de aquel que determina las condiciones necesarias para la validez del testamento
olografo, ya porque, de admitir lo contrario, se llegaria al absurdo de que pequeas
enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del
testamento, vinieran a anular este, y ya porque el precepto contenido en dicho parrafo ha de
entenderse en perfecta armonia y congruencia con el art. 26 de la ley del Notariado, que
declara nulas las adiciones, apostillas, entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma prevenida, pero no el documento
que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del pensamiento
del testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin
trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es
preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar, sean de palabras que
no afecten, alteren ni varien de modo substancial la expresa voluntad del testador manifiesta
en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo
un testamento olografo por no estar salvada por el testador la enmienda del guarismo
ultimo del ao en que fue extendido (Italics ours).
3

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent


Judge, dated September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.

Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.


Teehankee, (Chairman), J., concurs in a separate opinion.
Relova, J., took no part.
o0o

No. L-20234. December 23, 1964.


PAULA DE LA CERNA, ET AL., petitioners, vs.MANUELA REBACA POTOT, ET
AL., and THE HONORABLE COURT OF APPEALS, respondents.
Judgments; Probate courts; Error of law does not affect jurisdiction, of probate court
nor conclusive effect of its decision.An error of law committed in admitting a joint will to
probate does not affect the jurisdiction of the probate court nor the conclusive effect of its
final decision.
Same; Same; Probate decree of joint will affects only share of deceased spouse.A final
probate decree of a joint will of husband and wife affects only the share of the deceased
spouse and cannot include the disposition of said joint will, in so far as the estate of the
latter spouse is concerned, must be, on her death, reexamined and adjudicated de novo.
Wills; Effects of validity of joint will as to share of wife who dies later than the
husband.Where a husband and wife executed a joint will and upon the death of the

husband said will was admitted to probate by a final decree of the court although
erroneous, and the wife dies later, it is held that said first decree of probate affects only the
estate of the husband but cannot affect the estate of the wife, considering that a joint will is
a separate will of each testator; and a joint will being prohibited by law, the estate of the
wife should pass upon her death to her intestate heirs and not to the testamentary heir,
unless some other valid will is shown to exist in favor of the latter or unless the
testamentary heir is the only heir of said wife.

APPEAL from a decision of the Court of Appeals.


The facts are stated in the opinion of the Court.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals,
Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First
Instanceof Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for
partition.
The factual background appears in the following portion of the decision of the
Court of Appeals (Petition, Annex A, pp. 24):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that our
two parcels of land acquired during our marriage together with all improvements thereon
shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood,
because God did not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot, and that while each of the testators is yet living, he or she will continue to
enjoy.the fruits of the two lands aforementioned, the said two parcels of land being covered
by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of
Borbon, province of Cebu. Bernabe de la Serna died on August 30, 1939, and the aforesaid
will was submitted to probate by said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required by law and there being no
opposition, heard the evidence, and, by Order of October 31; 1939; in Special Proceedings
No. 499, declara legalizado el documento Exhibit A como el testamento y ultima voluntad
del finado Bernabe de la Serna con derecho por parte du su viuda superstite Gervasia

Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar de los frutos de los
terranos descritos en dicho documento; y habido consideracion de la de dichos bienes, se
decreta la distribucion sumaria de los mismos en favor de la logataria universal Manuela
Rebaca de Potot previa prestacion por parte de la misma de una fianza en la sum de
P500.00 para responder de reclamaciones que se presentare contra los bienes del finado
Bernabe de la Serna de los aos desde esta fecha. (Act Esp. 499, Testamentaria Finado
Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another
petition for the probate of the same will insofar as Gervasia was concerned was filed on
November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First
Instance of Cebu, but for failure of the petitioner, Manuela R. Potot, and her attorney,
Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March
30, 1954 (Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia
Rebaca)."

The Court of First Instance ordered the petition heard and declared the testament
null and void, for being executed contrary to the prohibition of joint wills in the Civil
Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but
on appeal by the testamentary heir, the Court of Appeals reversed, on the ground
that the decree of probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
x x x. It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) prohibits the
making of a will jointly by two or more persons either for their reciprocal benefit or for the
benefit of a third person. However, this form of will has long been sanctioned by use, and
the same has continued to be used; and when, as in the present case, one such joint last will
and testament has been admitted to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to give effect to the provisions thereof
that are not contrary to law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267,
wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned,
saying, assuming that the joint will in question is valid'."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la
Cerna.
The appealed decision correctly held that the final decree of probate, entered in
1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la
Cerna, died), has conclusive effect as to his last will and testament, despite the fact
that even then the Civil Code already decreed the invalidity of joint wills, whether

in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the probate court was an error of law, that
should have been corrected by appeal, but which did not affect the jurisdiction of the
probate court, nor the conclusive effect of its final decision, however erroneous. A
final judgment rendered on a petition for the probate of a will is binding upon the
whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil.
156); and public policy and sound practice demand that at the risk of occasional
errors judgment of courts should become final at some definite date fixed by
law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil. 521, and
other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded
by the 1939 decree admitting his will to probate. The contention that being void the
will cannot be validated, overlooks that the ultimate decision on whether an act is
valid or void rests with the courts, and here they have spoken with finality when the
will was probated in 1939. On this court, the dismissal of their action for partition
was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1939 could only affect the share of the
deceased husband, Bernabe de la Cerna. It could not include the disposition of the
share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest
in the conjugal properties the probate court acquired no jurisdiction, precisely
because her estate could not then be in issue. Be it remembered that prior to the
new Civil Code, a will could not be probated during the testators lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a joint
will is considered a separate will of each testator. Thus regarded, the holding of the
Court of First Instance of Cebu that the joint will is one prohibited by law was
correct as to the participation of the deceased Gervasia Rebaca in the properties in
question, for the reasons extensively discussed in our decision in Bilbao vs.
Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs.
Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death
to her heirs intestate, and not exclusively to the testamentary heir, unless some

other valid will in her favor is shown to exist, or unless she be the only heir intestate
of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common
usage could not make them valid when our Civil Codes consistently invalidated
them, because laws are only repealed by other subsequent laws, and no usage to the
contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil
Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of
Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.
Bengzon,
C.J., Bautista
Angelo, Concepcion,Barrera, Paredes, Dizon, Regala, Makalintal, Bengzon,
J.P., and Zaldivar, JJ., concur.
Judgment affirmed with modification.
No. L-37453. May 25, 1979.

RIZALINA GABRIEL GONZALES, petitioner, vs.HONORABLE


APPEALS and LUTGARDA SANTIAGO, respondents.

COURT

OF

Court of Appeals; Evidence; Factual findings of Court of Appeals not generally


reviewable.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.
Same; Same; Same.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
ventiliated 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.
Will; Settlement of Estate; It is presumed that a witness to a will has the qualifications
prescribed by law, unless the contrary is established by the oppositor.We reject petitioners
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.
Same; Same; Evidence; Naturalization Law; Word credible with regards to witnesses
to a will does not have the meaning of term credible witness used in the Naturalization
Law.We also reject as without merit petitioners 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.
Same; Same; Same; Words competent witness and credible witness compared.In
the strict sense, the competency of a person to be an instrumental witness to a will is
determined by the statute, that is Arts. 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.
Same; Same; To be considered a credible witness to a will it is not mandatory that
witness good community standing and probity be first established.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.

Same; Same; Same; Attorneys; Contracts; A will duly acknowledged before a notary
public has in its favor the presumption of regularity, as for example, regarding the date when
the notary was furnished the residence certificates of the witnesses.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.
Same; Same; Same; Findings that testatrix dictated her will to her attorney without any
note is a finding of fact.It is also a factual findings 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.
Same; Same; Same; Attestation clause best evidence of date the will was signed.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.
Same; Same; Same; Fact that there was conflict of testimony as to identity of
photographer who took a photograph of the signing and attestation of the will, not a
requirement of law, is of minor importance. What matters most is the photograph itself.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 and Maria Gimpaya, Isabel Gabriel
and Atty. Paraiso.

Same; Same; It cannot be expected that the testimony of all the witness will be identical
in all their minutest details.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,
(Pascua vs. de la Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of
every person will 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.
Same; Same; Findings of facts of trial court may be reviewed and reversed where it
overlooked and misinterpreted the facts on record.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 lies 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.
Same; Same; The three instrumental witnesses to the will constitute the best evidence to
the making of the will.Petitioners 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 fact of the respondent Court of Appeals.

PETITION for review of the decision of the Court of Appeals.


The facts are stated in the opinion of the Court.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:

This is a petition for review of the decision of the Court of Appeals, First
Division, promulgated on May 4, 1973 inCA-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.
1

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 and 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 bawat 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 will 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 Evangelina, Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all 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 (testatrixs) 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. 1.that the same is not genuine; and in the alternative
2. 2.that the same was not executed and attested as required by law;

1. 3.that, at the time of the alleged execution of the purported will, the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative

2. 4.that the purported will 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. 1.That there is no iota of evidence to support the contention 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. 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. 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. 4.That the evidence is likewise conclusive that the document presented for probate,
Exhibit F is not the purported will 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 will and
testament of the deceased Isabel Gabriel, is hereby 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 allowed probate.
2

Oppositor Rizalina Gabriel Gonzales moved for reconsideration of the aforesaid


decision and such motion was opposed by petitioner-appellant Lutgarda Santiago.
3

Thereafter, parties submitted their respective Memoranda, and on August 28, 1973,
respondent Court, Former Special First Division, by Resolution denied the motion
for reconsideration stating that:
5

The oppositor-appellee contends that the preponderance of evidence shows that the
supposed last will and testament of Isabel Gabriel was hot 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 reversing 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 of private respondent thereon, We denied the petition by Resolution on
November 26, 1973, the question raised being factual and for insufficient showing
that the findings of fact by respondent Court were unsupported by substantial
evidence.
8

Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales


filed a Motion for Reconsideration which private respondent answered by way of
her Comment or Opposition 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.
10

11

The petitioner in her brief makes the following assignment of errors:


1. 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 witnesses.

2. II.The Court of Appeals erred in reversing the finding of the lower court that the
preparation and execution of the will Exhibit F, was unexpected and coincidental.
3. 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.
4. 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.

5. V.The Court of Appeals erred in reversing the trial courts finding that it was
incredible that Isabel Gabriel could have dictated the will, Exhibit F, without any
note or document, to Atty. Paraiso.
1. VI.The Court of Appeals erred in reversing the finding of the trial court that Matilde
Orubia 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.
2. VII.The Court of Appeals erred in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed.
3. 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.
4. 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.
5. 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) and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), and in the more
recent cases of Baptista vs. Carillo and CA(L-32192, 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:
12

x x x 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 this 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. x x x

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 petitioners 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 requirement 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 wills with
respect to the qualifications of witnesses.
We find no merit to petitioners 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 will. 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 805 of this Code.
Art. 21. The following are disqualified from being witnesses to a will:
1. (1)Any person not domiciled in the Philippines,
2. (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 trustworthiness 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 petitioners 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 petitioners 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 testators 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 crediblerequires 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 social 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, Off.
Gaz., 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 a 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 will 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. (italics 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 will,
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 disqualified to testify by mental incapacity, crime, or
other cause. Historical Soc. of Dauphin (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. (Ibid, p. 341).
Expression credible witness in relation to attestation of wills means competent
witness; that is, one competent under the law to testify to fact of execution of will. Vernons
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 time it is offered for probate. Smith vs. Goodell, 101 N.E. 255, 256, 258 Ill. 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 petitioners 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 will consider and
discuss hereinafter. We are convinced that the appellate courts 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 will 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 Gabriels house which was
nearby and from said house, they left in a car to the lawyers office, which
testimonies are recited in the respondent Courts 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 Gimpayas residence certificate No. A-5114942 was issued at
Navotas, Rizal on April 13, 1961 while Maria Gimpayas residence certificate No. A5114974 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 Gabriels will.
We also agree with the respondent Courts 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 Orobias 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 Paraisos 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 courts 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 T, 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 petitioners 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 pangalar and tinitirahan
were left blank shows beyond cavil that the three attesting witnesses were all
present in the same occasion merits Our approval because this 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. Paraisos
even the saie 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 eighty-one 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 co-administratrix in the Intestate Estate of
her deceased husband Eligio Naval. The text of the will 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.
Petitioners 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 cowitnesses Celso Gimpaya and Maria Gimpaya. The trial courts conclusion that
Orobias 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 dayis
purely conjectural. Witness Orobia did not admit having given piano lessons to the
appellants 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 will was improperly executed, We agree with the reasoning of the
respondent court that: Matilde Orobias 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 Courts rationalization in conformity with logic, law and
jurisprudence which do not require picture-taking 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 will 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. Inasmuch 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 lies 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 courts unbelief

that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;
that the trial courts 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 latters 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 lefthand 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. Paraisos
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 courts 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 evidencewhich the trial court itself believed
was unshakenthat 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 Gabriels 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. L22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co.,G.R. No. L-22533, Feb. 9,
1967; Hilario, Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioners 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 Courts
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 synthesizes the resolutions we have heretofore made in respect to petitioners
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 Courts 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.
Petitioners 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.
Teehankee, Makasiar, De Castro and Herrera, JJ.,concur.
Judgment affirmed.
Notes.The cumulative effect of circumstances may lead to the conclusion that the testator was indeed
mentally incapacitated to make a will, that is, to know the nature of his estate which is to be disposed of the
proper objects of his bounty, and the character of the testamentary act. (Ramirez vs. Ramirez, 39 SCRA 147.)
An acknowledging notary cannot serve as a witness to a will at the same time. (Cruz vs. Villasor, 54 SCRA
31.)

Even if its allowance is not opposed, the court must be convinced of the authenticity and due execution of the
will which requires that in such a situation at least one attesting witness must testify. ( Vda. de Precilla vs.
Narciso, 46 SCRA 538.)
Nothing less than the best evidence should be required to be presented to the court before a document
purporting to be a will is to be admitted to probate or be denied probate. (Vda. de Precilla vs. Narciso, 46 SCRA
538.)
The jurisdiction of a probate court becomes vested upon the delivery thereto of the will even if no petition for
its allowance was filed until later, because, upon the will being deposited, the court could, motu proprio have
taken steps to fix the time and place for proving the will and issued the corresponding notices conformably to
what is prescribed by Section 3, Rule 76, of the Revised Rules of Court (Section 3, Rule 77, of the Old Rules of
Court.) (Rodriguez vs. Borja, 17 SCRA 418.)
Where intestate proceedings before a court of first instance had already been commenced, the probate of the
will should be filed in the same court, either in a separate special proceeding or in an appropriate motion for
said purpose filed is already pending intestate proceeding. (Uriarte vs. Court of First Instance of Negros
Occidental, 33 SCRA 252.)
A will maybe allowed even if some witnesses do not remember having attested to it, if other evidence
satisfactorily show due execution, and that failure of witness to identify his signature does not provate.
(Maravilla vs. Maravilla, 37 SCRA 672.)

[No. 26317. January 29, 1927]


Estate

of

Miguel

Mamuyac,

deceased.

FRANCISCO

GAGO,

petitioner

and

appellant, vs. CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and


CATALINA MAMUYAC, opponents and appellees.
WILLS, CANCELLATION OF; PRESUMPTION.The law does not require any evidence of
the revocation or cancellation of the will to be preserved. It therefore becomes difficult at times to
prove the cancellation or revocation of wills. The fact that such cancellation or revocation has
taken place must either remain unproved or 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.

APPEAL from a judgment of the Court of First Instance of La Union. Teodoro, J.


The facts are stated in the opinion of the court.
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 f or 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 Anastasio 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 copy of its original which remained in the possession of
the deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of
witnesses Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar,
who saw on December 30, 1920, the original of 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 of 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 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 f rom alleging that f
act.
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 the 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 or 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 fact that the original will of 1919 could not be f ound af ter the death of the
testator Miguel Mamuyac and in view of the positive proof that the same had been
cancelled, we are f orced 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
proof 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 the original has been lost and was not cancelled or destroyed by the testator.
(Borromeo vs.Casquijo, G. R. No. 26063.)

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.
Street, Malcolm, Villamor, Ostrand, Romualdez, andVillaReal, JJ., concur.
Judgment affirmed.

No. L-76464. 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.
Civil Law; Wills; Revocation of Will; To constitute an effective revocation, the physical
act of destruction of a will must be coupled with animus revocandi on the part of the testator.
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.
Same; Same; Same; Same; Intention to revoke must be accompanied by overt physical
act of burning, tearing, obliterating or cancelling the will by the testator or by another person
in his presence and under his express direction.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 proferred as a will were burned.
Civil Procedure; Res Adjudicata; Doctrine of res adjudicata finds no application in the
case at bar; Requisites of res adjudicata.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. We
do not find here the presence of all the enumerated requisites.
Same; Same; Same; Strictly speaking, no final judgment rendered insofar as the
probate of Adriana Maloto's will is concerned.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 Adria iana. As such, that j udgment 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. 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.

PETITION for certiorari to review the decision of the Court of Appeals.


The facts are stated in the opinion of the Court.
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, 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 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. 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.
1

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 partiesAldina, Constancio,
Panfilo, and Felinoexecuted 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.
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 PAGBULUT-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. 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.
3

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 collecti vely, 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. (1)By implication of law; or
2. (2)By some will, codicil, or other writing executed as provided in case of wills; or
3. (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. (Italics 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 herpresence. 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 will is not denied legalization on dubious grounds. Otherwise, the
very institution of testamentary succession will be shaken to its very foundations x
x x."
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. We do
not find here the presence of all the enumerated requisites.
5

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. 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.
6

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.
Yap (Chairman), Melencio-Herrera, and Paras JJ.,concur.
Padilla, J., no part in the deliberation.
Judgment reversed and set aside.
Notes.Under Article 1056 of the Civil Code of 1899 which governs this case a
person during his lifetime may partition his property among his heirs take effect
after his death and this deed is neither a will or a donation. (Mang-oy vs. Court of
Appeals, 144 SCRA 33.)
Rights to inheritance of a person who died after the New Civil Code took effect
shall be governed by said Code. (Yap vs. Court of Appeals, 145 SCRA 229.)
o0o

[No. L-2538. September 21, 1951]


Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA.
DE MOLO, petitioner and appellee, vs. Luz, GLICERIA and CORNELIO MOLO,
oppositors and appellants.
1. 1.WILLS; REVOCATION
BY
SUBSEQUENT
WILL;EFFECT
OF
VOID
REVOCATORY CLAUSE.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 annuling the previous will,
inasmuch as said revocatory clause is void (Samson vs.Naval, 41 Phil., 838).
1. 2.ID.; PROBATE; DEPENDENT RELATIVE REVOCATION.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 where it is founded on the
mistaken belief that the later will has been validly executed and would be given due
effect. The earlier will can still be admitted to probate under the principle of
"dependent relative revocation". The theory on which this principle is predicated is
that the testator did not intend to die intestate. And this intention is clearly
manifest where he executed two wills on two different occasions and instituted his
wife as his universal heir.

APPEAL from an order of the Court of First Instance of Rizal. Tan, J.


The facts are stated in the opinion of the Court.

Claro M. Recto and Serafin C. Dizon for 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 oppositors-appellants, 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 latter will contains a clause which expressly revokes
the 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 f or 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 as already stated in the early part of this decision.
From this order the oppositors appealed assigning six errors, to wit:
1. "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 1918.
2. "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.

1. "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.

2. "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.
3. "V.The probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself.
4. "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 which in their opinion indicate that petitioner
connived with witness Canuto Perez in an effort to defeat and frustrate the probate
of the 1939 will because of her knowledge that said will was intrinsically defective in

that "the one and only testamentary disposition thereof was a 'disposicin
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 deceased.
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 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 rehearing has also been explained,
and it appears that petitioner has failed because his whereabouts could not be
found. Whether this is true or not is not 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 take 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 f or 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 the 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 strength 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 "disposicin captatoria", which knowledge she may easily acquire through
consultation with a lawyer, there was no need for her to go through the ordeal 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 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 to 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 of estoppel which would prevent her
from seeking the probate of the 1918 will simply because her effort to obtain the

allowance of the 1939 will has failed considering that in both the 1918 and 1939
wills she was instituted 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 for being zealous in protecting her
interest.
The next contention of appellants refers to the revocatory clause contained in the
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 will 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 in that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the
Samson case and 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 why 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 there are many cases which uphold the view entertained by counsel for
oppositors, and that view appears to be controlling in the states where the decisions
had been promulgated, however, we are reluctant to fall in line with the assertion
that 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 on the subject of revocation of wills. But the
impression we gathered from a review and 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 prior 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 nontestamentary 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 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." Mortvs. Baker University (1935) 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 abandoning it as now suggested
by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of Civil Procedure) provides
that a will may be revoked "by some will, codicil, or other writing executed as
provided 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 contend 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 revocatory
clause contained in said will, himself deliberately destroyed the original of the 1918
will, and that for this 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 inhis
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 left to mere
inference or conjecture.
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 some reason. The
doctrine is not 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 the 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 the new
testamentary disposition, upon whose validity the revocation depends, is equivalent to the
non-fulfillment of a suspensive condition, and hence prevents the revocation of the original
will. But a mere intent to make at some time a will in 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. 233.)

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 occasions
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.
Pars, C. J., Feria, Pablo, Bengzon, Tuason, and Jugo, JJ., concur.
Reyes, J., concurs in the result.
Order affirmed.

[No. 17714. May 31, 1922]


In the matter of the estate of Jesus de Leon. IGNACIA DIAZ, petitioner and
appellant, vs. ANA DE LEON, opponent and appellee.
WILLS; REVOCATION; "ANIMO REVOCANDI."According to the statute
governing the subject in this jurisdiction the destruction animo revocandi of a will
constitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.) The
original will herein presented for probate having been destroyed animo revocandi, cannot
be declared the will and last testament of the testator.

APPEAL from a judgment of the Court of First Instance of Iloilo. Camus, J.


The facts are stated in the opinion of the court.
Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Trenas for appellee.
ROMUALDEZ, J.:
The only question raised in this case is whether or not the will executed by Jesus de
Leon, now deceased, 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 clothed
with all the necessary rSquisites to constitute a sufficient revocation.
But according to the statute governing the subject in this jurisdiction, the
destruction of a will with 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 cution 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 h&d 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.
Judgment is affirmed with costs against the petitioner. So ordered.
Araullo, C. J., Malcolm, Avancea, Ostrand, andJohns, JJ., concur.
Villamor, J., did not take part.
Judgment affirmed.

[No. 38050. September 22, 1933]

In the matter of the will of Donata Manahan. TIBURCIA MANAHAN, petitioner


and appellee, vs. ENGRACIA MANAHAN, opponent and appellant.
1. 1.WILL; PROBATE OF WILL.The appellant was not entitled to notification of the
order admitting the will to probate, inasmuch as she was not an interested party,
not having filed an opposition to the petition for the probate thereof. Her allegation
that she had the status of an heir, being the decedent's sister, did not confer upon
her the right to be notified in view of the fact that the testatrix died leaving a will
in which the appellant has not been instituted heir. Furthermore, not being a forced
heir, she did not acquire any successional right.
1. 2.ID. ; ID. ; AUTHENTICATION AND PROBATE.In the phraseology of the
procedural law there is no essential difference between the authentication of a will
and the probate thereof. The words authentication and probate are synonymous in
this case. All the law requires is that the competent court declare that in the
execution of the will the essential external formalities have been complied with and
that, in view thereof, the document, as a will, is valid and effective in the eyes of the
law.
1. 3.ID. ; ID. ; CONCLUSIVE CHARACTER OF THE DECREE OF PROBATE.The
decree admitting a will to probate is conclusive -with respect to the due execution
thereof and it cannot be impugned on any of the grounds authorized by law, except
that of a fraud, in any separate or independent action or proceeding.
1. 4.ID. ; ID. ; PROCEEDINGS "!N REM".The proceedings followed in a
testamentary case being in rem, the decree admitting the will to probate was
effective and conclusive against the appellant, in accordance with section 306 of the
Code of Civil Procedure.
1. 5.ID. ; ID. ; INTERLOCUTORY ORDER.The appellant could not appeal from the
trial court's order denying her motion for reconsideration and a new trial in view of
the fact that said order was interlocutory in character.

APPEAL from an order of the Court of First Instance of Bulacan. Lesaca, J.


The facts are stated in the opinion of the court.
J. Fernando Rodrigo for appellant.
Heraclio H. del Pilar for appellee.

IMPERIAL, J.:
This is an appeal taken by the appellant herein, Engracia Manahan, from the order
of the Court of First Instance of Bulacan dated July 1, 1932, in the matter of the
will of the deceased Donata Manahan, special proceedings No. 4162, denying her
motion for reconsideration and new trial filed on May 11, 1932.
The facts in the case are as follows:
On August 29, 1930, Tiburcia Manahan instituted special proceedings No. 4162,
for the probate of the will of the deceased Donata Manahan, who died in Bulacan,
Province of Bulacan, on August 3, 1930. The petitioner herein, niece of the testatrix,
was named the executrix in said will. The court set the date for the hearing and the
necessary notice required by law was accordingly published. On the day of the
hearing of the petition, no opposition thereto was filed and, after the evidence was
presented, the court entered the decree admitting the will to probate as prayed for.
The will was probated on September 22, 1930. The trial court appointed the herein
petitioner executrix with a bond of P1,000, and likewise appointed the committee on
claims and appraisal, whereupon the testamentary proceedings followed the usual
course. One year and seven months later, that is, on May 11, 1932, to be exact, the
appellant herein filed a motion for reconsideration and a new trial, praying that the
order admitting the will to probate be vacated and the authenticated will declared
null and void ab initio. The appellee herein, naturally filed her opposition to the
petition and, after the corresponding hearing thereof, the trial court entered its
order of denial on July 1, 1932. Engracia Manahan, under the pretext of appealing
from this last order, likewise appealed from the judgment admitting the will to
probate.
In this instance, the appellant assigns seven (7) alleged errors as committed by
the trial court. Instead of discussing them one by one, we believe that, essentially,
her claim narrows down to the following: (1) That she was an interested party in the
testamentary proceedings and, as such, was entitled to and should have been
notified of the probate of the will; (2) that the court, in its order of September 22,
1930, did not really probate the will but limited itself to decreeing its
authentication; and (3) that the will is null and void ab initio on the ground that the
external formalities prescribed by the Code of Civil Procedure have not been
complied with in the execution thereof.

The appellant's first contention is obviously unfounded and untenable. She was
not entitled to notification of the probate of the will and neither had she the right to
expect it, inasmuch as she was not an interested party, not having filed an
opposition to the petition for the probate thereof.
Her allegation that she had the status of an heir, being the deceased's sister, did not
confer on her the right to be notified on the ground that the testatrix died leaving a
will in which the appellant has not been instituted heir. Furthermore, not being a
forced heir, she did not acquire any successional right.
The second contention is puerile. The court really decreed the authentication and
probate of the will in question, which is the only pronouncement required of the
trial court by the law in order that the will may be considered valid and duly
executed in accordance with the law. In the phraseology of the procedural law, there
is no essential difference between the authentication of a will and the probate
thereof. The words authentication and probate are synonymous in this case. All the
law requires is that the competent court declare that in the execution of the will the
essential external formalities have been complied with and that, in view thereof, the
document, as a will, is valid and effective in the eyes of the law.
The last contention of the appellant may be refuted merely by stating that, once a
will has been authenticated and admitted to probate, questions relative to the
validity thereof can no more be raised on appeal. The decree of probate is conclusive
with respect to the due execution thereof and it cannot be impugned on any of the
grounds authorized by law, except that of fraud, in any separate or independent
action or proceeding (sec. 625, Code of Civil Procedure; Castaeda vs. Alemany, 3
Phil., 426; Pimentelvs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil.,
347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs.Suesa, 14 Phil., 676; In
re Estate
of
Johnson, 39
Phil.,
156;Riera vs. Palmaroli, 40
Phil.,
105; Austria vs. Ventenilla,21
Phil.,
180; Ramirez vs. Gmur, 42
Phil.,
855;
and Chiong Joc-Soy vs. Vao, 8 Phil., 119).
But there is another reason which prevents the appellant herein from
successfully maintaining the present action and it is that inasmuch as the
proceedings followed in a testamentary case are in rem, the trial court's decree
admitting the will to probate was effective and conclusive against her, in accordance

with the provisions of 'section 306 of the said Code of Civil Procedure which reads as
follows:
"SEC. 306. EFFECT OF JUDGMENT.* * *.
"1. In case of a judgment or order against a specific thing, or in respect to the
probate of a will, or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or relation of a particular person,
the judgment or order is conclusive upon the title of the thing, the will or
administration, or the condition or relation of the person:Provided, That the probate
of a will or granting of letters of administration shall only be prima facie evidence of
the death of the testator or intestate; * * *."
On the other hand, we are at a loss to understand how it was possible for the
herein appellant to appeal from the order of the trial court denying her motion for
reconsideration and a new trial, which is interlocutory in character. In view of this
erroneous interpretation, she' succeeded in appealing indirectly from the order
admitting the will to probate which was entered one year and seven months ago.
Before closing, we wish to state that it is not timely to discuss herein the validity
and sufficiency of the execution of the will in question. As we have already said, this
question can no more be raised in this case on appeal. After due hearing, the court
found that the will in question was valid and effective and the order admitting it to
probate, thus promulgated, should be accepted and respected by all. The probate of
the will in question now constitutes res judicata.
Wherefore, the appeal taken herein is hereby dismissed, with costs against the appellant. So
ordered.
Avancea, C. J., Malcolm, Villa-Real, and Hull, JJ.,concur.
Appeal dismissed.

No. L-29300. June 21, 1978.*


PEDRO

D.

H.

GALLANOSA,

CORAZON

GRECIA-GALLONOSA

and

ADOLFO FORTAJADA, the deceased Pedro Gallanosa being substituted by


his legal heirs, namely, his above-named widow and his children, ISIDRO

GALLANOSA and LEDY GALLANOSA, and grandchildren named IMELDA


TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of

the late SIKATUNA GALLANOSA. son of Pedro D.H. GALLONOSA,


petitioners, vs. HON. UBALDO Y. ARCANGEL, Judge of Branch I of the
Court of First Instance of Sorsogon and FLORENTINO G. HITOSIS,
CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G. HITOSIS,
EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE

CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R.


HITOSIS, DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R.

HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS,

minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented by


their legal guardian and mother LOURDES RELUCIO VDA. DE HITOSIS,
PETRONA

HITOSISBALBIDO,

MODESTO

HITOSIS-GACILO,

CLETO

HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA HITOSIS-BANARES VDA.


DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE, RESTITUTO
HITOSISBANARES,

DAMIAN

HITOSIS-BANARES,

FIDEL

HITOSIS-

BANARES, SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS,


LOLITA HITOSISBANEGA. minors MILAGROS HITOSIS-BANEGA, ALICIA
HITOSIS-BANEGA AND ELISA HITOSISBANEGA, represented by their
legal guardian and father ERNESTO BANEGA, FELICITAS HITOSISPENAFLOR,
PEDRO

GENOVEVA

HITOSIS,

HITOSIS-ADRIATICO,

LIBRATA

HITOSIS-BALMES,

MANUEL

HITOSIS,

JUANITA

HITOSIS-

GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA


and LEONAHITOSIS-GABITO GAMBA, respondents.

Settlement of Estate; Wills; Res Judicata; Prescription; An action instituted in 1967 for
the annulment of a last will and testament duly probated way back in 1939 will not prosper.
What the plaintiffs seek is the annulment of a last will and testament duly probated in
1939 by the lower court itself. The proceeding is coupled with an action to recover the lands
adjudicated to the defendants by the same court in 1943 by virtue of the probated will,
which action is a resuscitation of the complaint of the same parties that the same court
dismissed in 1952. It is evident from the allegations of the complaint and from defendants
motion to dismiss that plaintiffs 1967 action is barred by res judicata, a double-barrelled
defense, and by prescription, acquisitive and extinctive, or by what are known in the jus
civile and the jus gentium as usucapio, longi temporis possesio and praescriptio (See Ramos
vs. Ramos, L-19872, December 3, 1974 61 SCRA 284).

Same; Same; Pleadings and Practice. The Rules of Court does not sanction an action
for annulment of a will.Our procedural law does not sanction an action for the
annulment of a will. In order that a will may take effect, it has to be probated, legalized or
allowed in the proper testamentary proceeding. The probate of the will is mandatory (Art.
838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs.
Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249). The testamentary proceeding is
a special proceeding for settlement of the testators estate. A special proceeding is distinct
and different from an ordinary action (Secs. 1 and 2, Rule 2 and sec. 1, Rule 72. Rules of
Court).
Same; Same; Res Judicata; Consequences of due probate of a will.The 1939 decree of
probate is conclusive as to the due execution or formal validity of the will (Sec. 625, Act 190,
sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 828, Civil Code). That
means that the testator was of sound and disposing mind at the time when he executed the
will and was not acting under duress, menace, fraud, or undue influence; that the will was
signed by him in the presence of the required number of witnesses, and that the will is
genuine and is not a forgery. Accordingly, these facts cannot again be questioned in a
subsequent proceeding, not even in a criminal action for the forgery of the will. (3 Morans
Comments on the Rules of Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil.
448). After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797, September 22,
1966, 18 SCRA 47).
Same; Same; Same; Decree of adjudication in a testate proceeding is binding on the
whole world.On the other hand, the 1943 decree of adjudication rendered by the trial
court in the testate proceeding for the settlement of the estate of Florentino Hitosis, having
been rendered in a proceeding in rem, is, under the abovequoted section 49(a), binding upon
the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De
la Cerha vs. Potot, 120 Phil. 1361, 1364; McMaster vs. Henry Reissmann & Co., 68 Phil.
142).
Same; Same; Same; Judgment; Grounds for annulment of judgment after period for
filing petition for relief expires.After the period for seeking relief from a final order or
judgment under Rule 38 of the Rules of Court has expired, a final judgment or order can be
set aside only on the grounds of (a) lack of jurisdiction or lack of due process of law or (b)
that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case,
the period for annulling the judgment is four years from the discovery of the fraud (2
Morans Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs.
Villanueva, 106 Phil. 1159).

Same; Same; Contracts; Prescription; The Civil Law rule that an action for declaration
of inexistence of a contract does not prescribe cannot be applied to last wills and testaments.
To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of
plaintiffs counsel, held that the action for the recovery of the lands had not prescribed
because the rule in Article 1410 of the Civil Code, that the action or defense for the
declaration of the inexistence of a contract does not prescribe, applies to wills. That ruling
is a glaring error. Article 1410 cannot possibly apply to last wills and testaments.

ORIGINAL ACTION in the Supreme Court. Certiorari with preliminary injunction.


The facts are stated in the opinion of the Court.
Haile Frivaldo for petitioners.
Joaquin R. Hitosis for private respondents.
AQUINO, J.:
In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek
to annul the orders of respondent Judge dated May 3 and June 17, 1968, wherein he
reconsidered his order of January 10, 1968, dismissing, on the ground of
prescription, the complaint in Civil Case No. 2233 of the Court of First Instance of
Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino
Hitosis, with an estimated value of P50,000, and claims for damages exceeding one
million pesos. The undisputed facts are as follows:
1.Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he
was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless
widower, he as survived by his brother, Leon Hitosis. His other brothers, named
Juan, Tito (Juancito), Leoncio (Aloncio) and Apolonio and only sister, Teodora, were
all dead.
2.On June 24, 1939 a petition for the probate of his will was filed in the Court of
First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was
duly published. In that will, Florentino bequeathed his one-half share in the
conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease
him, as was the case, his one-half share would be assigned to the spouses Pedro

Gallanosa and Corazon Grecia, the reason being that Pedro, Teclas son by her first
marriage, grew up under the care of Florentino; he had treated Pedro as his foster
child, and Pedro has rendered services to Florentino and Tecla. Florentino likewise
bequeathed his separate properties consisting of three parcels of abaca land and
parcel of riceland to his protege (sasacuyang ataman), Adolfo Fortajada, a minor.
3.Opposition to the probate of the will was registered by the testators legal heirs,
namely, his surviving brother, Leon, and his nephews and nieces. After a hearing,
wherein the oppositors did not present any evidence in support of their opposition,
Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to
probate and appointed Gallanosa as executor. Judge Rivera specifically found that
the testator executed his last will gozando de buena salud y facultades mentales y
no obrando en virtud de amenaza, fraude o influencia indebida.
4.On October 24, 1941, the testamentary heirs, the Gallanosa spouses and Adolfo
Fortajada, submitted a project of partition covering sixty-one parcels of land located
in various parts of Sorsogon, large cattle and several pieces of personal property
which were distributed in accordance with Florentinos will. The heirs assumed the
obligations of the estate amounting to P7,129.27 in the portion of P2,376.42 for
Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition
was approved by Judge Doroteo Amador in his order of March 13, 1943, thus
confirming the heirs possession of their respective shares. The testators legal heirs
did not appeal from the decree of probate and from the order of partition and
distribution.
5.On February 20, 1952, Leon Hitosis and the heirs of Florentinos deceased
brothers and sisters instituted an action in the Court of First Instance of Sorsogon
against Pedro Gallanosa for the recovery of the said sixty-one parcels of land. They
alleged that they, by themselves or through their predecessors-in-interest, had been
in continuous possession of those lands en concepto de dueoand that Gallanosa
entered those lands in 1951 and asserted ownership over the lands. They prayed
that they be declared the owners of the lands and that they be restored to the
possession thereof. They also claimed damages (Civil Case No. 696).
6.Gallanosa moved to dismiss the above complaint for lack of cause of action and
on the ground of bar by the prior judgment in the probate proceeding. Judge

Anatolio C. Maalac dismissed the complaint on the ground of res judicata in his
order of August 14, 1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-in-interest had intervened
in the testate proceedings in Civil Case No. 3171 of this Court for the purpose of contesting
the probate of the will of (the) late Florentino Hitosis; and had their opposition prospered
and the will denied of probate, the proceedings would have been converted into one of
intestacy (Art. 960 Civil Code) and the settlement of the estate of the said deceased would
have been made in accordance with the provisions of law governing legal or intestate
succession x x x, in which case the said plaintiffs, as the nearest of kin or legal heirs of said
Florentino Hitosis, would have succeeded to the ownership and possession of the 61 parcels
of land in question forming part of his estate (art. 1003, Civil Code).
However, the decision of the Court was adverse to them, when it dismissed their
opposition and ordered the probate of his will. From this decision (Annex K) legalizing the
said will, the oppositors did not file any appeal within the period fixed by law, despite the
fact that they were duly notified thereof, so that the said decision had become final and it
now constitutes a bar to any action that the plaintiffs may institute for the purpose of
seeking a redetermination of their rights to inherit the properties of the late Florentino
Hitosis.
In other words, the said decision of this Court in Civil Case (Special Proceeding) No.
3171, in which the herein plaintiffs or their predecessors-in-interest had intervened as
parties oppositors, constitutes a final judicial determination of the issue that the said
plaintiffs, as ordinary heirs, have no legal rights to succeed to any of the properties of the
late Florentino Hitosis; consequently, their present claim to the ownership and possession
of the 61 parcels of land in question is without any legal merit or basis.

7.The plaintiffs did not appeal from that order of dismissal which should have set
the matter at rest. But the same plaintiffs or oppositors to the probate of the will,
and their heirs, with a persistence befitting a more meritorious case, filed on
September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696 and
twenty-eight years after the probate of the will another action in the same court
against the Gallanosa spouses and Adolfo Fortajada for the annulment of the will
of Florentino Hitosis and for the recovery of the same sixty-one parcels of land. They
prayed for the appointment of a receiver.
8.As basis of their complaint, they alleged that the Gallanosa spouses, through
fraud and deceit, caused the execution and simulation of the document purporting

to be the last will and testament of Florentino Hitosis. While in their 1952
complaint the same plaintiffs alleged that they were in possession of the lands in
question, in their 1967 complaint they admitted that since 1939, or from the death
of FlorentinoHitosis, the defendants (now the petitioners) have been inpossession of
the disputed lands (Par. XIV of the complaint, p.70, Rollo in Civil Case No. 555,
Gubat Branch, which wastransferred to Branch I in Sorsogon town where Special
Proceeding No. 3171 and Civil Case No. 696 were decided andwhich was re-docketed
as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now
the petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for
reconsideration Respondent Judge granted it and set aside the order of dismissal.
He denied defendants motion for the reconsideration of his order setting aside that
dismissal order.
The petitioners or the defendants below contend in this certiorari case that the
lower court has no jurisdiction to set aside the 1939 decree of probate and the 1952
order of dismissal in Civil Case No. 696 and that it acted with grave abuse of
discretion in not dismissing private respondents 1967 complaint.
The issue is whether, under the facts set forth above, the private respondents
have a cause of action for the annulment of the will of Florentino Hitosis and for
the recovery of the sixty-one parcels of land adjudicated under that will to the
petitioners.
We hold that the lower court committed a grave abuse of discretion in
reconsideration its order of dismissal and in ignoring the 1939 testamentary case
and the 1952 Civil Case No. 696 which is the same as the instant 1967 case.
A rudimentary knowledge of substantive law and procedure is sufficient for an
ordinary lawyer to conclude upon a causal perusal of the 1967 complaint that it is
baseless and unwarranted.
What the plaintiffs seek is the annulment of a last will and testament duly
probated in 1939 by the lower court itself. The proceeding is coupled with an action
to recover the lands adjudicated to the defendants by the same court in 1943 by
virtue of the probated will, which action is a resuscitation of the complaint of the
same parties that the same court dismissed in 1952.

It is evident from the allegations of the complaint and from defendants motion to
dismiss that plaintiffs 1967 action is barred by res judicata, a double-barrelled
defense, and by prescription, acquisitive and extinctive, or by what are known in
the jus civile and the jus gentium as usucapio, longi temporis possesio and
praescriptio (See Ramos vs. Ramps, L-19872, December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the annulment of a will. In
order that a will may take effect, it has to be probated, legalized or allowed in the
proper testamentary proceeding. The probate of the will is mandatory (Art. 838,
Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs.
Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the
testators estate. A special proceeding is distinct and different from an ordinary
action (Secs. 1 and 2, Rule 2 and sec. 1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs
1967 complaint, is a two-pronged defense because (1) the 1939 and 1943 decrees of
probate and distribution in Special Proceeding No. 3171 and (2) the 1952 order of
dismissal in Civil Case No. 696 of the lower court constitute bars by former
judgment. Rule 39 of the Rules of Court provides:
SEC. 49. Effect of judgments.The effect of a judgment or final order rendered by a
court or judge of the Philippines, having jurisdiction to pronounce the judgment or order,
may be as follows:
(a) In case of a judgment or order against a specific thing, or in respect to the probate of
a will or the administration of the estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his relationship to another,
the judgment or order is conclusive upon the title to the thing, the will or administration, or
the condition, status or relationship of the person; however, the probate of a will or granting
of letters of administration shall only be prima facie evidence of the death of the testator or
intestate;
(b) In other cases the judgment or order is, with respect to the matter directly adjudged
or as to any other matter that could have been raised in relation thereto, conclusive between
the parties and their successors in interest by title subsequent to the commencement of the
action or special proceeding, litigating of the same thing and under the same title and in
the same capacity;

(c) In any other litigation between the same parties or their successors in interest, that
only is deemed to have been adjudged in a former judgment which appears upon its face to
have been so adjudged, or which was actually and necessarily included therein or necessary
thereto.

The 1939 decree of probate is conclusive as to the due execution or formal validity
of the will (Sec. 625, Act 190; sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court;
Last par. of art. 838, Civil Code).
That means that the testator was of sound and disposing mind at the time when
he executed the will and was not acting under duress, menace, fraud, or undue
influence; that the will was signed by him in the presence of the required number of
witnesses, and that the will is genuine and is not a forgery. Accordingly, these facts
cannot again be questioned in a subsequent proceeding, not even in a criminal
action for the forgery of the will. (3 Morans Comments on the Rules of Court, 1970
Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797,
September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a petition for annulment of a will was
not entertained after the decree of probate had become final. That case is
summarized as follows:
Wills; Probate; Alleged Fraudulent Will; Appeal.V. died. His will was admitted to
probate without objection. No appeal was taken from said order. It was admitted that due
and legal notice had been given to all parties. Fifteen months after the date of said order, a
motion was presented in the lower court to have said will declared null and void, for the
reason that fraud had been practiced upon the deceased in the making of his will.
Held: That under section 625 of Act No. 190, the only time given parties who are
displeased with the order admitting to probate a will, for an appeal is the time given for
appeals in ordinary actions; but without deciding whether or not an order admitting a will
to probate will be opened for fraud, after the time allowed for an appeal has expired, when
no appeal is taken from an order probating a will, the heirs can not, in subsequent litigation
in the same proceedings, raise questions relating to its due execution. The probate of a will
is conclusive as to its due execution and as to the testamentary capacity of the testator.
(See Austria vs. Heirs of Ventenilla, 99 Phil. 1069).

On the other hand, the 1943 decree of adjudication rendered by the trial court in
the testate proceeding for the settlement of the estate of Florentino Hitosis, having
been rendered in a proceeding in rem, is under the abovequoted section 49(a),
binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of
Johnson, 39 Phil. 156;De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs.
Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res
judicata with respect to private respondents complaint. The 1952 order of dismissal
rendered by Judge Maalac in Civil Case No. 696, a judgment in personam, was an
adjudication on the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar
by former judgment under the aforequoted section 49(b) (Anticamara vs. Ong, L29689, April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for the
annulment of the testamentary proceeding and the proceeding in Civil Case No.
696. Obviously, they realized that the final adjudications in those cases have the
binding force of res judicata and that there is no ground, nor is it timely, to ask for
the nullification of the final orders and judgments in those two cases.
It is a fundamental concept in the organization of every jural system, a principle
of public policy, that, at the risk of occasional errors, judgments of courts should
become final at some definite date fixed by law. Interest rei publicae ut finis sit litum.
The very object for which the courts were constituted was to put an end to
controversies. (Dy Cay vs. Crossfield and OBrien, 38 Phil. 521; Pealosa vs.
Tuason,22 Phil. 303; De la Cerna vs. Potot, supra).
After the period for seeking relief from a final order or judgment under Rule 38 of
the Rules of Court has expired, a final judgment or order can be set aside only on
the grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the
judgment was obtained by means of extrinsic or collateral fraud. In the latter case,
the period for annulling the judgment is four years from the discovery of the fraud
(2 Morans Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs.
Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting the
theory of plaintiffs counsel, held that the action for the recovery of the lands had

not prescribed because the rule in article 1410 of the Civil Code, that the action or
defense for the declaration of the inexistence of a contract does not prescribe,
applies towills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills and
testaments. The trial court and plaintiffs counsel relied upon the case of Dingle vs.
Guillermo. 48 O. G. 4410, allegedly decided by this Court, which cited the ruling
in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to
void contracts, a ruling elevated to the category of a codal provision in article 1410.
The Dingle case was decided by the Court of Appeals. Even the trial court did not
take pains to verify the misrepresentation of plaintiffs counsel that the Dinglecase
was decided by this Court. An elementary knowledge of civil law could have alerted
the trial court to the egregious error of plaintiffs counsel in arguing that article
1410 applies to wills.
WHEREFORE, the lower courts orders of May 3 and June 17, 1968 are reversed and set aside and its order
of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.
SO ORDERED.

Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.


Concepcion Jr., J., is on leave.
Lower courts orders reversed and set aside and order of dismissal affirmed.
Notes.An intestate courts approval of the inventory of assets of the deceased is not conclusive
as to what assets really belongs to the estate and is without prejudice to a judgment in an action on
the title thereto. (Sebial vs. Sebial, 64 SCRA 385).
A statement in a last will and testament that the testator owns the southern half of the conjugal
estate is contrary to law because the spouses are pro indiviso owners thereof.
To determine whether or not a summary settlement of an estate is called for, the probate court
should ascertain the value of the estate left by the deceased by preponderance of evidence. (Sebial vs.
Sebial, 64 SCRA 385).
The probate court may approve a project of partition of a parcel of land claimed by one of the
parties as exclusively his and not part of the decedents estate. (Ermac vs. Modelo, 64 SCRA 358).

The Court, under its supervisory authority over all inferior courts may properly decree that
venue, in a case involving the settlement of the estate of a deceased, was properly assumed by the
Quezon City court, and decree, in turn, that the CFI of Laguna desist from further continuing with
the case and instead transfer all its records to the Quezon City court for the continuation of the
proceedings. (Garcia Fule vs. Court of Appeals, 74 SCRA 203 citing the doctrine laid down in Cuenco
vs. Court of Appeals, 53 SCRA 381).
Where an heir has not received his share, the better practice is for him to demand his share
through a proper motion in the same probate court or administration proceedings, or for reopening of
the probate or administration proceedings if it had already been closed. (Guilas vs. Judge of CFI, 43
SCRA 111; Macias vs. Uy Kim,45 SCRA 251).
Testate proceedings for the settlement of the estate of a deceased person take precedence over
intestate proceedings for the same purpose. (Cuenco vs. Court of Appeals, 53 SCRA 360).
The jurisdiction of a probate court becomes vested upon thedelivery thereto of the will even if no
petition for its allowance was filed until later, because, upon the will being deposited, the court could,
motu proprio have taken steps to fix the time and place of proving the will, and issued the
corresponding notices conformably to what is prescribed by Section 3, Rule 76, of the Revised Rules
of Court (Section 3, Rule 77, of the old Rules of Court; (Rodriguez vs. Borja, 17 SCRA 418.)
Although it is true that final orders in probate cases partake the nature of a judgment in rem,
binding upon the whole world, it does not follow therefrom that said final orders, like any other
judgment or final order, cannot, within the statutory period of prescription, be annulled upon the
ground of extrinsic fraud. (Vda. de Serrano vs. Court of Appeals, 33 SCRA 865.)

o0o
No. L-62952. October 9, 1985.

SOFIA J. NEPOMUCENO, petitioner, vs. THE HONORABLE COURT OF


APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG CARMELITA JUGO,
respondents.
Succession; Wills; Jurisdiction; The fact that the probate court declared a devise made
in a will null and void will be sustained where no useful purpose will be served by requiring
the filing of a separate civil action and restricting the court only to the issue of extrinsic
validity of the will.We are of the opinion that in view of certain unusual provisions of the
will, which are of dubious legality, and because of the motion to withdraw the petition f or

probate (which the lower court assumed to have been filed with the petitioner's
authorization), the trial court acted correctly in passing upon the will's intrinsic validity
even before its formal validity had been established. The probate of a will might become an
idle ceremony if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed upon, even before it
is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449.
Compare with Sumilang v. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho
v. Udan, L-19996, April 30, 1965, 13 SCRA 693).
Same; Same; Same; Same.We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again before us on the
same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort,
expense, plus added anxiety. These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the validity 01 the provisions of the
will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517,
522). After all, there exists a justiciable controversy crying f or solution.
Same; Same; A devise given by a married man estranged from his wife for 22 years
prior to his death, to a woman with whom he has been living for said period of time is void.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of
a donation between persons who are living in adultery or concubinage. It is the donation
which becomes void. The giver cannot give even assuming that the recipient may receive.
The very wordings of the Will invalidate the legacy because the testator admitted he was
disposing the properties to a person with whom he had been living in concubinage.

PETITION for certiorari to review the decision of the Court of Appeals.


The facts are stated in the opinion of the Court.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision of the
respondent Court of Appeals (now Intermediate Appellate Court) dated June 3,
1982, as amended by the resolution dated August 10, 1982, declaring as null and
void the devise in favor of the petitioner and the resolution dated December 28, 1982
denying petitioner's motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and
Testament duly signed by him at the end of the Will on page three and on the left
margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C.
Cortez, and Leandro Leao, who in turn, affixed their signatures below the
attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was
acknowledged before the Notary Public Romeo Escareal by the testator and his
three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J.
Nepomuceno as his sole and only executor of his estate. It is clearly stated in the
Will that the testator was legally married to a certain Rufina Gomez by whom he
had two legitimate children, Oscar and Carmelita, but since 1952, he had been
estranged from his lawfully wedded wife and had been living with petitioner as
husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the
petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the
Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife
Rufina Gomez and his children Oscar and Carmelita his entire estate and the free
portion thereof to herein petitioner. The Will reads in part:
"Art. III. That I have the following legal heirs, namely: my aforementioned legal wife,
Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I
declare and admit to be legally and properly entitled to inherit from me; that while I have
been estranged from my above-named wife for so many years, I cannot deny that I was
legally married to her or that we have been separated up to the present for reasons and
justifications known fully well by them;
"Art. IV. That since 1952, I have been living, as man and wife,with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all the
things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has
with my full knowledge and consent, did comport and represent myself as her own husband,
in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy
bonds of matrimony because of my aforementioned previous marriage;"

On August 21, 1974, the petitioner filed a petition for the probate of the last Will
and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal,
Branch XXXIV, Caloocan City and asked for the issuance to her of letters
testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children
filed an opposition alleging inter alia that the execution of the Will was procured by
undue and improper influence on the part of the petitioner; that at the time of the
execution of the Will, the testator was already very sick and that petitioner having
admitted her living in concubinage with the testator, she is wanting in integrity and
thus letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground
that as the testator admitted in his Will to cohabiting with the petitioner from
December 1952 until his death on July 16, 1974, the Will's admission to probate will
be an idle exercise because on the face of the Wills the invalidity of its intrinsic
provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the Will. The respondent court declared the
Will to be valid except that the devise in favor of the petitioner is null and void
pursuant to Article 739 in relation with Article 1028 of the Civil Code of the
Philippines. The dispositive portion of the decision reads:
"WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid
except the devise in favor of the appellant which is declared null and void. The properties so
devised are instead passed on in intestacy to the appellant in equal shares, without
pronouncement as to costs."

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for
Correction of Clerical Error" praying that the word "appellant" in the last sentence
of the dispositive portion of the decision be changed to "appellees" so as to read:
"The properties so devised are instead passed on intestacy to the appellees in equal
shares, without pronouncement as to costs." The motion was granted by the
respondent court on August 10,1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was
denied by the respondent court in a resolution dated December 28,1982.
The main issue raised by the petitioner is whether or not the respondent court
acted in excess of its jurisdiction when after declaring the last Will and Testament

of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic
validity of the testamentary provision in favor of herein petitioner,
The petitioner submits that the validity of the testamentary provision in her
favor cannot be passed upon and decided in the probate proceedings but in some
other proceedings because the only purpose of the probate of a Will is to establish
conclusively as against everyone that a Will was executed with the formalities
required by law and that the testator has the mental capacity to execute the same.
The petitioner further contends that even if the provisions of paragraph 1 of Article
739 of the Civil Code of the Philippines were applicable, the declaration of its nullity
could only be made by the proper court in a separate action brought by the legal
wife for the specific purpose of obtaining a declaration of the nullity of the
testamentary provision in the Will in favor of the person with whom the testator
was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and
Testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and the petitioner and the fact that petitioner
herself initiated the presentation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix
Nuguid, et al (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et
al (G.R. No. L-39247, June 27, 1975). Respondents also submit that the admission of
the testator of the illicit relationship between him and the petitioner put in issue
the legality of the devise.
We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will
to be validly drawn, it went on to pass upon the intrinsic validity of the Will and
declared the devise in f avor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is
limited to an examination and resolution of the extrinsic validity of the Will. The
rule is expressed thus:
xxx

xxx

xxx

' 'x x x It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his last Will
and testament, irrespective of whether its provisions are valid and enforceable or
otherwise." (Fernandez v. Dimagiba, 21 SCRA 428)
"The petition below being for the probate of a Will, the court's area of inquiry is limited
to the extrinsic validity thereof. The testator s testamentary capacity and the compliance
with the formal requisites or solemnities prescribed by law are the only questions presented
for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the
provisions of the will or the legality of any devise or legacy is premature.
xxx

xxx

xxx

"True or not, the alleged sale is no ground for the dismissal of the petition for probate.
Probate is one thing; the validity of the testamentary provisions is another, The first decides
the execution of the document and the testamentary capacity of the testator; the second
relates to descent and distribution."(Sumilang v. Ramagosa, 21 SCRA 1369)
xxx

xxx

xxx

"To establish conclusively as against everyone, and once for all, the f acts that a will was
executed with the formalities required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings under the new code for the probate of a
will. (Sec. 625). The judgment in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the validity of any provisions made in
the will. It can not decide, for example, that a certain legacy is void and another one valid. x
x x" (Castaeda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances,
the probate court is not powerless to do what the situation constrains it to do and
pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator
instituted the petitioner as universal heir and completely preterited her surviving
forced heirs. A will of this nature, no matter how valid it may appear extrinsically,
would be null and void. Separate or latter proceedings to determine the intrinsic
validity of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay, Jr.
v. Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.

Invoking "practical considerations", we stated:


"The basic issue is whether the probate court erred in passing upon the intrinsic validity of
the will, bef ore ruling on its allowance or formal validity, and in declaring it void.
"We are of the opinion that in view of certain unusual provisions of the will, which are of
dubious legality, and because of the motion to withdraw the petition for probate (which the
lower court assumed to have been filed with the petitioner's authorization), the trial court
acted correctly in passing upon the will's intrinsic validity even before its formal validity
had been established. The probate of a will might become an idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the
issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang v.
Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan, L-19996, April 30,
1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the
Will. Both parties are agreed that the Will of Martin Jugo was executed with all the
formalities required by law and that the testator had the mental capacity to execute
his Will. The petitioner states that she completely agrees with the respondent court
when in resolving the question of whether or not the probate court correctly denied
the probate of Martin Jugo's last Will and Testament, it ruled:
"This being so, the will is declared validly drawn." (Page 4, Decision, Annex A of Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals'
decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v.
Nuguid, (supra):
"We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, probability exists that the case
will come up once again before us on the same issue of the intrinsic validity or nullity of the
will. Result. waste of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well meet head-on the issue of the

validity of the provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et
al. v. Jugo, et al., 77 Phil. 517, 522).

After all, there exists a justiciable controversy crying for solution. We see no useful
purpose that would be served if we remand the nullified provision to the proper
court in a separate action for that purpose simply because, in the probate of a will,
the court does not ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
"The following donations shall be void:
1. (1)Those made bet ween persons who were guilty of adultery or concubinage at the
time of the donation;
1. (2)Those made between persons found guilty of the same criminal offense, in
consideration thereof;
2. (3)Those made to a public officer or his wife, descendants and ascendants, by reason
of his office.
"In the case referred to in No. 1, the action for declaration of nullity may be brought by the
spouse of the donor or donee; and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:


"The prohibitions mentioned in Article 739, concerning donationsinter vivos shall apply to
testamentary provisions."

In Article III of the disputed Will, executed on August 15, 1968, or almost six years
before the testator's death on July 16, 1974, Martin Jugo stated that respondent
Rufina Gomez was his legal wife from whom he had been estranged "for so many
years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his
legitimate children. In Article IV, he stated that he had been living as man and wife
with the petitioner since 1952. Testator Jugo declared that the petitioner was
entitled to his love and affection. He stated that Nepomuceno represented Jugo as
her own husband but "in truth and in fact, as well as in the eyes of the law, l could
not bind her to me in the holy bonds of matrimony because of my af orementioned
previous marriage.''

There is no question from the records about the fact of a prior existing marriage
when Martin Jugo executed his Will. There is also no dispute that the petitioner
and Mr. Jugo lived together in an ostensible marital relationship for 22 years until
his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno
contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man
was then 51 years old while the woman was 48. Nepomuceno now contends that she
acted in good faith for 22 years in the belief that she was legally married to the
testator.
The records do not sustain a finding of innocence or good faith. As argued by the
private respondents:
"First. The last will and testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and petitioner, the devisee.
"Second. Petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to present
contrary evidence,
"In short, the parties themselves dueled on the intrinsic validity of the legacy given in
the will to petitioner by the deceased testator at the start of the proceedings.
"Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as
man and wife, as already married was an important and specific issue brought by the
parties before the trial court, and passed upon by the Court of Appeals.
"Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner
who opted to present evidence on her alleged good faith in marrying the testator.
(Testimony of Petitioner, TSN of August 1,1982, pp. 56-57 and pp. 62-64).
"Private respondents, naturally, presented evidence that would refute the testimony of
petitioner on the point.
"Sebastian Jugo, younger brother of the deceased testator, testified at length on the
meretricious relationship of his brother and petitioner. (TSN of August 18, 1975).
"Clearly, the good faith of petitioner was by option of the parties made a decisive issue
right at the inception of the case.

- "Confronted by the situation, the trial court had to make a ruling on the question.
"When the court a quo held that the testator Martin Jugo and petitioner 'were deemed
guilty of adultery or concubinage', it was a finding that petitioner was not the innocent
woman she pretended to be."
xxx

xxx

xxx

"3 If a review of the evidence must be made nonetheless, then private respondents
respectfully offer the f ollowing analysis:
'

"FIRST:

The secrecy of the marriage of petitioner with the


deceased testator in a town in Tarlac where
neither she nor the testator ever resided. If there
was nothing to hide from, why the concealment?
Of course, it maybe argued that the marriage of
the deceased with private respondent Rufina
Gomez
was likewise done in secrecy. But it should be
remembered that Rufina Gomez was already in
the family way at that time and it would seem
that the parents of Martin Jugo were not in favor
of the marriage so much so that an action in court
wasbrought concerning the marriage. (Testimony
of Sebastian Jugo, TSN of August 18, 1975, pp.
29-30)

"SECOND
:

Petitioner was a sweetheart of the deceased


testator when they were still both single. That
would be in 1922 as Martin Jugo married
respondent Rufina Gomez on November 29,
1923 (Exh. 3). Petitioner married the testator
only on December 5, 1952. There was a space of
about 30 years inb etween. During those 30
years, could it be believed that she did not even
wonder why Martin Jugo did not marry her nor
contact her anymore after November, 1923
facts that should impel her to ask her groom
before she married him in secrecy, especially so

when she was already about 50 years old at the


time of marriage.
'THIRD:

The fact that petitioner broke off from Martin


Jugo in 1923 is by itself conclusive
demonstration that she knew that the man she
had openly lived for 22 years as man and wife
was a married man with already two children.

"FOURTH: Having admitted that she knew the children of


respondent Rufina Gomez, is it possible that she
would not have asked Martin Jugo whether or
not they were his illegitimate or legitimate
children and by whom? That is un-Filipino.
"FIFTH:

Having often gone to Pasig to the residence of


the parents of the deceased testator, is it possible
that she would not have known that the mother of
private respondent Oscar Jugo and Carmelita
Jugo was respondent Rufina Gomez, considering
that the houses of the parents of Martin Jugo
(where he had lived for many years) and that of
respondent Rufina Gomez were just a few meters
away?

"Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently
improbable, for they are against the experience in common life and the ordinary instincts and promptings of
human nature that a woman would not bother at all to ask the man she was going to marry whether or not he
was already married to another, knowing that her groom had children. It would be a story that would strain
human credulity to the limit if petitioner did not know that Martin Jugo was already a married man in view of
the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to break
off with the deceased during their younger years."
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons
who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even
assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the
testator admitted he was disposing the properties to a person with whom he had been living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now
Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana,Relova, De la Fuente and Patajo, JJ., concur.
Petition dismissed. Decision affirmed.
Notes.Where circumstances demand that intrinsic validity of testamentary provisions be passed upon
even before the extrinsic validity of will is resolved, probate court should meet the issue. (Cayetano vs.
Leonidas, 129 SCRA 522.)
Will should not be denied legality based on dubious grounds. (Maninang vs, Court of Appeals 114 SCRA
478.)
Generally, the probate of a will is mandatory. The law enjoins the probate of the will and public requires it,
because unless the will is probated and notice thereof given to the whole word, the right of a person to dispose of
his property by will maybe rendered nugatory. (Id.) The law on the formal requirements of a will should be
liberally construed. While perfection in drafting is desirable, unsubstantial departures should be ignored.(Perez
vs. Rosal, 118 SCRA 195.)

[No. 48840.December 29, 1943]


ERNESTO M. GUEVARA, petitioner and appellant, vs. ROSARIO GUEVARA and
her husband PEDRO BUISON, respondents and appellees.

1.WILLS; PRESENTATION OF WILL FOR PROBATE IS MANDATORY; SETTLEMENT OF


ESTATE ON BASIS OF INTESTACY WHEN DECEDENT LEFT A WILL, AGAINST THE
LAW.We hold that under section 1 of Rule 74, in relation to Rule 76, if the
decedent left a will and no debts and the heirs and legatees desire" to make an
extrajudicial partition of the estate, they must first present that will to the court
for probate and divide the estate in accordance with the will. They may not
disregard the provisions of the will unless those provisions are contrary to law.
Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy.
The law enjoins the probate of the will and public policy requires it, because
unless the will is probated and notice thereof given to the whole world, the right
of a person to dispose of his property by will may be rendered nugatory, as is
attempted to be done in the instant case. Absent legatees and devisees, or such of

them as may have no knowledge of the will, could be cheated of their inheritance
thru the collusion of some of the heirs who might agree to the partition of the
estate among themselves to the exclusion of others.
2.ID.; ID.; ID.Even if the decedent left no debts and nobody raises any question as
to the authenticity and due execution of the will, none of the heirs may sue for
the partition of the estate in accordance with that will without first securing its
allowance or probate of the court: first, because the law expressly provides that
"no will shall pass either real or personal estate unless it is proved and allowed in
the proper court"; and, second, because the probate of a will, which is a
proceeding in rem, cannot be dispensed with and substituted by any other
proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator's right to dispose of his property by will in
accordance with law and to protect the rights of the heirs and legatees under the
will thru the means provided by law, among which are the publication and the
personal notices to each and all of said heirs and legatees. Nor may the court
approve and allow the will presented in evidence in such an an action for
partition, which is one in personam, any more than it could decree the
registration under the Torrens system of the land involved in an ordinary action
for reivindieacion or partition.
3.TORRENS REGISTRATION; REGISTRATION DOES NOT AFFECT RIGHTS OF PARTITION
BETWEEN LEGATEES. It results that the interested parties consented to the
registration of the land in question in the name of E. M. G. alone subject to the
implied trust on account of which he is under obligation to deliver and convey to
them their corresponding shares after all the debts of the original owner of said
land had been paid. Such finding does not constitute a reversal of the decision
and decree of registration, which merely confirmed the petitioner's title; and in
the absence of any intervening innocent third party, the petitioner may be
compelled to fulfil the promise by virtue of which he acquired his title. That is
authorized by section 70 of the Land Registration Act, cited by the Court of
Appeals, and by the decision of this Court in Severino vs. Severino, 44 Phil., 343,
and the cases therein cited.
PETITION to review on certiorari a decision of the Court of Appeals.
The facts are stated in the opinion of the court.
Primicias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.

OZAETA,J.:
Ernesto M. Guevara and Rosario Guevara, legitimate son and natural daughter,
respectively, of the deceased Victorino L. Guevara, are litigating here over their
inheritance from the latter. The action was commenced on November 12, 1937, by
Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict
ligitime as an acknowledged natural daughter of the deceasedto wit, a portion of
423,492 square meters of a large parcel of land described in original certificate of
title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M.
Guevara and to order the latter to pay her P6,000 plus P2,000 a year as damages
for withholding such legitime from her. The defendant answered the complaint
contending that whatever right or rights the plaintiff might have had, had been
barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit
A), apparently with all the formalities of the law, wherein he made the following
bequests: To his stepdaughter Candida Guevara, a pair of earrings worth P150 and
a gold chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and
all the furniture, pictures, statues, and other religious objects found in the residence
of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario
Guevara," a pair of earrings worth P120; to his stepson Pio Guevara, a ring worth
P120; and to his wife by second marriage, Angustia Posadas, various pieces of
jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M.
Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Cndida y Po, apellidados
Guevara," a residential lot with its improvements situate in the town of Bayambang,
Pangasinan, having an area of 960 square meters and assessed at P540; to his wife
Angustia Posadas he confirmed the donation propter nuptias theretofore made by
him to her of a portion of 25 hectares of the large parcel of land of 259-odd hectares
described in plan Psu-66618. He also devised to her a portion of 5 hectares of the
same parcel of land by way of complete settlement of her usufructuary right.
He set aside 100 hectares of the same parcel of land to be disposed bf either by
him during his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay
all his pending debts and to defray his expenses and those of his family up to the
time of his death.
The remander of said parcel of land he disposed of in the following manner:

"(d).Toda la porcin restante de mi terreno arriba descrito, de la extensin


superficial aproximada de ciento veintinueve (129) hectreas setenta (70) reas, y
veinticinco (25) centareas, con todas sus mejoras existentes en la misma, dejo y
distribuyo, proindiviso, a mis siguientes herederos como sigue:
"A mi hijo legtimo Ernesto M. Guevara, ciento ocho (108) hectreas, ocho (8)
reas y cincuenta y cuatro (54) centareas, hacia la parte que colinda al Oeste de las
cien (100) hectareas referidas en el inciso (a) de este prrafo del testamento, como
su propiedad absoluta y exclusiva, en la cual extensin superficial estn includas
cuarenta y tres (43) hectreas, veintitrs (23) reas y cuarenta y dos (42) centareas
que le doy en concepto de mejora.
"A mi hija natural reconocida, Hosario Guevara, veintiun (21) hectreas, sesenta
y un (61) reas y setenta y un (71) centareas, que es la parte restante.
"Duodecimo.Nombro por la presente como Albacea Tes-tamentario a mi hi jo
Ernesto M. Guevara, con relevacin de fianza. Y una yez legalizado este testamento,
y en cuanto sea posible, es mi deseo, que los herederos y legatarios aqu nombrados
se repartan extrajudicialmente mis bienes de conformidad con mis disposiciones
arriba consignadas."
Subsequently, and on July 12, 1933, Victorino L. Guevara executed a deed of sale
(exhibit 2) in favor of Ernesto M. Guevara whereby he conveyed to him the southern
half of the large parcel of land of which he had theretofore disposed by the will
above mentioned, in consideration of the sum of P1 and other valuable
considerations, among which were the payment of all his debts and obligations
amounting to not less than P16,500, his maintenance up to his death, and the
expenses of his last illness and funeral expenses. As to the northern half of the same
parcel of land, he declared : "Hago constar tambin que reconozco a mi referido hi jo
Ernesto M. Guevara como dueo de la mitad norte de la totalidad y con junto de los
referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T.
Puzon a quien haba vendido con anterioridad."
On September 27, 1933, final decree of registration was issued in land
registration case No. 15174 of the Court of First Instance of Pangasinan, and
pursuant thereto original certificate of title No. 51691 of the same province was
issued on October 12 of the same year in favor of Ernesto M. Guevara over the whole
parcel of land described in the deed of sale above referred to. The registration
proceeding had been commenced on November 1, 1932, by Victorino L. Guevara and
Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but

before the trial of the case Victorino L. Guevara withdrew as applicant and Ros-ario
Guevara and her co-oppositors also withdrew their opposition, .thereby facilitating
the issuance of the title in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevara died. His last will and testament,
however, was never presented to the court for probate, nor has any administration
proceeding ever been instituted for the settlement of his estate. Whether the various
legatees mentioned in the will have received their respective legacies or have even
been given due notice of the execution of said will and of the dispositions therein
made in their favor, does not affirmatively appear from the record of this case. Ever
since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara
appears to have possessed the land adjudicated to him in the registration
proceeding and to have disposed of various portions thereof for the purpose of
paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will
and testament in her custody, did nothing judicially to invoke the testamentary
dispositions made therein in her favor, whereby the testator acknowledged her as
his natural daughter and, aside from certain legacies and bequests, devised to her a
portion of 21.6171 hectares of the large parcel of land described in the will. But a
little over four years after the testator's demise, she (assisted by her husband)
commenced the present action against Ernesto M. Guevara alone for the purpose
hereinbefore indicated; and it was only during the trial of this case that she
presented the will to the court, not for the purpose of having it probated but only to
prove that the deceased Victorino L. Guevara had acknowledged her as his natural
daughter. Upon that proof of acknowledgment she claimed her share of the
inheritance from him, but on the theory or assumption that he died intestate,
because the will had not been probated, for which reason, she asserted, the
betterment therein made by the testator in favor of his legitimate son Ernesto M.
Guevara should be disregarded. Both the trial court and the Court of Appeals
sustained that theory.
Two principal questions are before us for determination: (1) the legality of the
procedure adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the
efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to
the defendant (petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Gueyara, it
being in our opinion in violation of procedural law and an attempt to circumvent and

disregard the last will and testament of the decedent. The Code of Civil Procedure,
which was in force up to the time this case was decided by the trial court, contains
the following pertinent provisions:

"Sec. 625. Allotvance Necessary, and Conclusive as to Execution.No will shall pass
either the real or personal estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real
and personal estate shall be conclusive as to its due execution.
"Sec. 626. Custodian of Will to Deliver.The person who has the custody of a will shall,
within thirty days after he knows of the death of the testator, deliver the will into the court
which has jurisdiction, or to the executor named in the will.
"Sec. 627. Executor to Present Will and Accept or Refuse Trust.A person named as
executor in a will, shall within thirty days after he knows of the death of the testa tor, or
within thirty days after he knows that he is named executor, if he obtained such knowledge
after knowing of the death of the testator, present such will to the court which has
jurisdiction, unless the will has been otherwise returned to said court, and shall, within
such period, signify to the court his acceptance of the trust, or make known in writing his
refusal to accept it.
"Sec. 628. Penalty.A person who neglects any of the duties required in the two
preceding sections, unless he gives a satisfactory excuse to the court) shall be subject to a
fine not exceeding one thousand dollars.
"Sec. 629. Person Retaining Will may be Committed.If a person having custody of a will
after the death of the testator neglects without reasonable cause to deliver the same to the
court having jurisdiction, after notice by the court so to do, he may be committed to the
prison of the province by a warrant issued by the court, and there kept in close confinement
until he delivers the will."

The foregoing provisions are now embodied in Rule 76 of the new Rules of Court,
which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem,with notice by publication to
the whole world and with personal notice to each of the known heirs, legatees, and
devisees of the testator (section 630, C. C. P., and sections 3 and 4, Rule 77). Altho
not contested (section 5, Rule 77), the due execution of the will and the fact that the
testator at the time of its execution was of sound and disposing mind and not acting
under duress, menace, and undue influence or fraud, must be proved to the
satisfaction of the court, and only then may the will be legalized and given effect by
means of a certificate of its allowance, signed by the judge and attested by the seal,
of the court; and when the will devises real property, attested copies thereof and of

the certificate of allowance must be recorded in the register of deeds of the province
in which the land lies. (Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation
of a will to the court for probate is mandatory and its allowance by the court is
essential and indispensable to its efficacy. To assure and compel the probate of a
will, the law punishes a person who neglects his duty to present it to the court with
a fine not exceeding P2,000, and if he should persist in not presenting it, he may be
committed to prison and kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of the law and
held that a will, unless probated, is ineffective. Nevertheless it sanctioned the
procedure adopted by the respondent for the following reasons :
"The majority of the Court is of the opinion that if this case is dismissed ordering
the filing of testate proceedings, it would cause injustice, inconvenience, delay, and
much expense to the parties, and that therefore, it is preferable to leave them in the
very status which they themselves have chosen, and to decide their controversy once
and for all, since, in a similar case, the Supreme Court applied that same criterion
(Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74 of the
Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which
the court ought to follow in the exercise of its jurisdiction is not specifically pointed
out by the Rules of Court, any suitable process or mode of procedure may be adopted
which appears most consistent to the spirit of the said Rules. Hence, we declare the
action instituted by the plaintiff to be in accordance with law."
Let us look into the validity of these considerations. Section 1 of Rule 74 provides
as follows:

"Section 1. Extrajudicial settlement by agreement between heirs.If the decedent left no


debts and the heirs and legatees are all of age, or the minors are represented by their
judicial guardians, the parties may, without securing letters of administration, divide the
estate among themselves as they see fit by means of a public instrument filed in the office of
the register of deeds, and should they disagree, they may do so in an ordinary action of
partition. If there is only one heir or one legatee, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the register of deeds. It shall be
presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent."

That is a modification of section 596 of the Code of Civil Procedure, which reads
as follows:

"Sec. 596. Settlement of Certain Intestates Without Legal Proceedings.Whenever all the
heirs of a person who died intestate are of lawful age and legal capacity and there are no
debts due from the estate, or all the debts have been paid the heirs may, by agreement duly
executed in writing by all of them, and not otherwise, apportion and divide the estate
among themselves, as they may see fit, without proceedings in court."

The implication is that by the omission of the word "intestate" and the use of the
word "legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a
deceased person's estate, whether he died testate or intestate, may be made under
the conditions specified. Even if we give retroactive effect to section 1 of Rule 74 and
apply it here, as the Court of Appeals did, we do not believe it sanctions the
nonpresentation of a will for probate and much less the nullification of such will
thru the failure of its custodian to present it to the court for probate; for such a
result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74
merely authorizes the extrajudicial or judicial partition of the estate of a decedent
"without securing letters of administration." It does not say that in case the
decedent left a will the heirs and legatees may divide the estate among themselves
without the necessity of presenting the will to the court for probate.The petition to
probate a will and the petition to issue letters of administration are two different
things, altho both may be made in the same case. The allowance of a will precedes
the issuance of letters testamentary or of administration (section 4, Rule 78). One
can have a will probated without necessarily securing letters testamentary or of
administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the
decedent left a will and no debts arid the heirs and legatees desire to make an
extrajudicial partition of the estate, they must first present that will to the court for
probate and divide the estate in accordance with the will. They may not disregard
the provisions of the will unless those provisions are contrary to law. Neither may
they do away with the presentation of the will to the court for probate, because such
suppression of the will is contrary to law and public policy. The law enjoins the
probate of the will and public policy requires it, because unless the will is probated
and notice thereof given to the whole world, the right of a person to dispose of his
property by will may be rendered nugatory, as is attempted to be done in the instant
case. Absent legatees and devisees, or such of them as may have no knowledge of the
will, could be cheated of their inheritance thru the collusion of some of the heirs who
might agree to the partition of the estate among themselves to the exclusion of
others.
In the instant case there is no showing that the various legatees other than the
present litigants had received their respective legacies or that they had knowledge

of the existence and of the provisions of the will. Their right under the will cannot
be disregarded, nor may those rights be obliterated on account of the failure or
refusal of the custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobody raises any question as to the
authenticity and due execution of the will, none of the heirs may sue for the
partition of the estate in accordance with that will without first securing its allowance or probate by the court, first, because the law expressly provides that "no will
shall pass either real or personal estate unless it is proved and allowed in the proper
court"; and, second, because the probate of a will, which is a proceeding in
rem, cannot be dispensed with and substituted by any other proceeding, judicial or
extrajudicial, without offending against public policy designed to effectuate the
testator's right to dispose of his property by will in accordance with law and to
protect the rights of the heirs and legatees under the will thru the means provided
by law, among which are the publication and the personal notices to each and all of
said heirs and legatees. Nor may the court approve and allow the will presented in
evidence in such an action for partition, which is one in personam, any more than it
could decree the registration under the Torrens system of the land involved in an
ordinary action forreivindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the
Court of Appeals, does not sanction the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like
section 1 of Rule 74, sanctions the extrajudicial partition by the heirs of the
properties left by a decedent, but not the nonpresentation of a will for probate. In
that case one Paulina Ver executed a will on October 11, 1902, and died on
November 1, 1902. Her will was presented for probate on November 10, 1902, and
was approved and allowed by the Court on August 16, 1904. In the meantime, and
on November 10, 1902, the heir 3 went ahead and divided the properties among
themselves and some of them subsequently sold and disposed of their shares to
third persons. It does not affirmatively appear in the decision in that case that the
partition made by the heirs was not in accordance with the will or that they in any
way disregarded the will. In closing the case by its order dated September 1, 1911,
the trial court validated the partition, and one of the heirs, Cunegunda Leao,
appealed. In deciding the appeal this Court said:
"The principal assignment of error is that the lower court committed an error in
deciding that the heirs and legatees of the estate of Da. Paulina Ver had

voluntarily divided the estate among themselves." In resolving that question this
Court said:
"In view of the positive finding of the judge of the lower court that there had been
a voluntary partition of the estate among the heirs and legatees, and in the absence
of positive proof to the contrary, we must conclude that the lower court had some
evidence to support its conclusion."
Thus it will be seen that as a matter of fact no question of law was raised and
decided in that case. That decision cannot be relied upon as an authority for the
unprecedented and unheard of procedure adopted by the respondent whereby she
seeks to prove her status as an acknowledged natural child of the decedent by his
will and attempts to nullify and circumvent the testamentary dispositions made by
him by not presenting the will to the court for probate and by claiming her legitime
as an acknowledged natural child on the basis of intestacy; and that in the face of
express mandatory provisions of the law requiring her to present the will to the
court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court
departed from the procedure sanctioned by the trial court and impliedly approved by
this Court in the Leano case, by holding that an extrajudicial partition is not proper
in testate succession. In the Riosa case the Court, speaking thru Chief Justice
Avancena, held:
"1.Extrajudicial Partition; Not Proper in Testate Succession.Section 596 of
the Code of Civil Procedure, authorizing the heirs of a person who died intestate to
make extrajudicial partition of the property of the deceased, without going into any
court of justice, makes express reference to intestate succession, and therefore
excludes testate succession.
"2.Id.; Effects of; Testate Succession.In the instant case, which is a testate
succession, the heirs made an extrajudicial partition of the estate and at the same
time instituted proceeding for the probate of the will and the administration of the
estate. When the time came for making the partition, they submitted to the court
the extrajudicial partition previously made by them, which the court
approved. Held: That for the purposes of the reservation and the rights and
obligations created thereby, in connection with the relatives benefited, the property
must not be deemed transmitted to the heirs from the time the extrajudicial
partition was made, but from the time said partition was approved by the court."
(Syllabus.)

The Court of Appeals also cites section 6 of Rule 124, which provides that if the
procedure which the court ought to follow in the exercise of its jurisdiction is not
specifically pointed out by the Rules of Court, any suitable process or mode of
proceeding may be adopted which appears most conformable to the spirit of the said
Rules. That provision is not applicable here for the simple reason that the procedure
which the court ought to follow in the exercise of its jurisdiction is specifically
pointed out and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing
of testate proceedings, it would cause injustice, inconvenience, delay, and much
expense to the parties." We see no injustice in requiring the plaintiff not to violate
but to comply with the law. On the contrary, an injustice might be committed
against the other heirs and legatees mentioned in the will if the attempt of the
plaintiff to nullify said will by not presenting it to the court for probate should be
sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to
blame because she was the custodian of the will and she violated the duty imposed
upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said will
to the court on pain of a fine not exceeding P2,000 and of imprisonment for contempt
of court. As for the defendant, he is not complaining of inconvenience, delay, and
expense, but on the contrary he is insisting that the procedure prescribed by law be
followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action
instituted by the plaintiff to be in accordance with law. It also erred in awarding
relief to the plaintiff in this action on the basis of intestacy of the decedent
notwithstanding the proven existence of a will left by him and solely because said
will has not been probated due to the failure of the plaintiff as custodian thereof to
comply with the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor
in said will, did not take any step to have it presented to the court for probate and
did not signify his acceptance of the trust or refusal to accept it as required by
section 3 of Rule 76 (formerly section 627 of the Code of Civil Procedure), because
his contention is that said will, insofar as the large parcel of land in litigation is
concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent
issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the
efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to

the defendant Ernesto M. Guevara. So that the parties may not have litigated here
in vain insofar as that question is concerned, we deem it proper to decide it now and
obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and
Ernesto M. Guevara before a notary public on July 12, 1933, may be divided into
two parts: (a) insofar as it disposes of and conveys to Ernesto M. Guevara the
sourthern half of Victorino L. Guevara's hacienda of 259-odd hectares in
consideration of P1 and other valuable considerations therein mentioned;
and (b)insofar as it declares that Ernesto M. Guevara became the owner of the
northern half of the same hacienda by repurchasing it with his own money from
Rafael T. Puzon.
A.As to the conveyance of the southern half of the hacienda to Ernesto M.
Guevara in consideration of the latter's assumption of the obligation to pay all the
debts of the deceased, the Court of Appeals found it to be valid and efficacious
because: " (a) it has not been proven that the charges imposed as a condition is [are]
less than the value of the property; and (b) neither has it been proven that the defendant did not comply with the conditions imposed upon him in the deed of
transfer." As a matter of fact the Court of Appeals found: "It appears that the
defendant has been paying the debts left by his father. To accomplish this, he had to
alienate considerable portions of the abovementioned land. And we cannot brand
such alienation as anomalous unless it is proven that they have exceeded the value
of what he has acquired by virtue of the deed of July 12, 1933, and that of his
corresponding share in the inheritance." The finding of the Court of Appeals on this
aspect of the case is final and conclusive upon the respondent, who did not appeal
therefrom.
B.With regard to the northern half of the hacienda, the findings of fact and of
law made by the Court of Appeals are as follows:
"The defendant has tried to prove that with his own money, he bought from
Rafael Puzon one-half of the land in question, but the Court a quo,after considering
the evidence, found it not proven; we hold that such conclusion is well founded. The
acknowledgment by the deceased, Victorino L. Guevara, of the said transactions,
which was inserted incidentally in the document of July 12, 1933, is clearly belied
by the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to
whom Victorino L. Guevara had sold a parcel of land with the right of repurchase.
The defendant, acting for his father, received the money and delivered it to Rafael
Puzon to redeem the land in question, and instead of executing a deed of redemption

in favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the
defendant.
"The plaintiff avers that she withdrew her opposition to the registration of the
land in the name of the defendant, because of the latter's promise that after paying
all the debts of their father, he would deliver to her and to the widow their
corresponding shares. As their father then was still alive, there was no reason to
require the delivery of her share and that was why she did not insist on her
opposition, trusting on the reliability and sincerity of her brother's promise. The
evidence shows that such promise was really made. The registration of land under
the Torrens system does not have the effect of altering the laws of succession, or the
rights of partition between coparceners, joint tenants, and other cotenants nor does
it change or affect in any other way any other rights and liabilities created by law
and applicable to unregistered land (sec. 70, Land Registration Law). The plaintiff
is not, then, in estoppel, nor can the doctrine of res judicata be invoked against her
claim. Under these circumstances, she has the right to compel the defendant to
deliver her corresponding share in the estate left by the deceased, Victorino L.
Guevara."
In his tenth to fourteenth assignments of error the petitioner assails the
foregoing findings of the Court of Appeals. But the findings of fact made by said
court are final and not reviewable by us on certiorari. The Court of Appeals found
that the money with which the petitioner repurchased the northern half of the land
in question from Rafael Puzon was not his own but his father's, it being the proceeds
of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said court
also found that the respondent withdrew her opposition to the registration of the
land in the name of the petitioner upon the latter's promise that after paying all the
debts of their father he would deliver to her and to the widow their corresponding
shares. From these facts, it results that the interested parties consented to the
registration of the land in question in the name of Ernesto M. Guevara alone subject
to the implied trust on account of which he is under obligation to deliver and convey
to them their corresponding shares after all the debts of the original owner of said
land had been paid. Such finding does not constitute a reversal of the decision and
decree of registration, which merely confirmed the petitioner's title; and in the
absence of any intervening innocent third party, the petitioner may be compelled to
fulfil the promise by virtue of which he acquired his title. That is authorized by
section 70 of the Land Registration Act, cited by the Court of Appeals, and by the

decision of this Court in Severino vs. Severino, 44 Phil., 343, and the cases therein
cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals
that the northern half of the land described in the will exhibit A and in original
certificate of title No. 51691 still belongs to the estate of the deceased Victorino L.
Guevara. In the event the petitioner Ernesto M. Guevara has alienated any portion
thereof, he is under obligation to compensate the estate with an equivalent portion
from the southern half of said land that has not yet been sold. In other words, to the
estate of Victorino L. Guevara still belongs one half of the total area of the land
described in said original certificate of title, to be taken from such portions as have
not yet been sold by the petitioner, the other half having been lawfully acquired by
the latter in consideration of his assuming the obligation to pay all the debts of the
deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in
effect that notwithstanding exhibit 2 and the issuance of original certificate of title
No. 51691 in the name of Ernesto M. Guevara, one half of the land described in said
certificate of title belongs to the estate of Victorino L. Guevara and the other half to
Ernesto M. Guevara in consideration of the latter's assumption of the obligation to
pay all the debts of the deceased, is hereby affirmed; but the judgment of said court
insofar as it awards any relief to the respondent Rosario Guevara in this action is
hereby reversed and set aside, and the parties herein are hereby ordered to present
the document exhibit A to the proper court for probate in accordance with law,
without prejudice to such action as the provincial fiscal of Pangasinan may take
against the responsible party or parties under section 4 of Rule 76. After the said
document is approved and allowed by the court as the last will .and testament of the
deceased Victorino L. Guevara, the heirs and legatees therein named may take such
action, judicial or extrajudicial, as may be necessary to partition the estate of the
testator, taking into consideration the pronouncements made in part II of this
opinion. No finding as to costs in any of the three instances.
Yulo, C. J., and Hontiveros,1 J., concur.
BOCOBO, J., concurring:
I concur in the result. Extrajudicial settlement by agreement among the heirs is
authorized by section 1 of Rule 74 only "if the decedent left no debts." In this case,
according to the findings of the Court of Appeals, Ernesto M. Guevara "has been
paying the debts left by his father." It is true that said Ernesto M. Guevara, in
consideration of the conveyance to him of the southern half of the hacienda, as-

sumed all the debts of the deceased, but this agreement is binding only upon the
parties to the contract but not upon the creditors who did not consent thereto. (Art.
1205, Civil Code.) There being debts when the father died, section 1 of Rule 74 is
not applicable.
MORAN,J., concurring in part and dissenting in part:
I would be agreeable to the majority decision but for a statement therein made
which in my view repeals by an erroneous interpretation the provisions of Rule 74,
section 1, of the Rules of Court, which reads as follows:
"EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS.If the decedent
left no debts and the heirs and legatees are all of age, or the minors are represented
by their judicial guardians, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means of a
public instrument filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition. If there is only one heir
or one legatee, he may adjudicate to himself the entire estate by means of an
affidavit filed in the office of the register of deeds. It shall be presumed that the
decedent left no debts if no creditor files a petition for letters of administration
within two years after the death of the decedent."
The majority holds that under this provision, the heirs and legatees, even if all of
them are of age, and there are no debts to be paid, cannot make an extrajudicial
settlement of the estate left by the decedent without first submitting in court for
probate the will left by the testator. This erroneous interpretation clearly overlooks
not only the letter and the spirit but more specially the whole background of the
provision.
It is admitted that the provision has been taken from section 596 of Act No. 190
but with a modification consisting in that it is made to apply in testate succession.
Said section 596 reads:
"Settlement of Certain Intestate Estates without Legal Proceedings.Whenever all the
heirs of a person who died intestate are of lawful age and legal capacity, and there are no
debts due from the estate, or all the debts have been paid the heirs may, by agreement duly
executed in writing by all of them, and not otherwise, apportion and divide the estate
among themselves, as they may see fit, without proceedings in court."

It must be observed that the procedure contemplated in this legal provision is


completely extrajudicial and the same procedure intended in section 1 of Rule 74
above quoted which is captioned "Extrajudicial Settlement by Agreement * * *".

Justice Laurel, who was one of the members of this Court when the new Rules were
promulgated, in commenting upon Rule 74, said:
"Rule 74. Summary Settlement of Estates.The corresponding provisions in the
Code of Civil Procedure are sections 596-598. There is substantial analogy between
the provisions of the Code of Civil Procedure and those of Rule 74, save that:
(1) Under section 1 of Rule 74, there may be extrajudicial settlement whether a
person died testate or intestate, while under section 596 of the Code of Civil
Procedure extrajudicial settlement can be had only when a person died intestate. (2)
Under Rule 74, section 1, extrajudicial settlement may take place 'if the decedent
left no debts,' while under section 596 of the Code of Civil Procedure it may take
place 'when there are no debts due from the estate, or all the debts have been paid.'
(3) Under section 596 of the Code of Civil Procedure, extrajudicial settlement may
take place when all the heirs are of lawful age and legal capacity, while under
section 1 of Rule 74 it may take place when 'the heirs and legatees are all of legal
age, or the minors are represented by their judicial guardians'. (4) Unlike the Code
of Civil Procedure, section 596, section 1 of Rule 74 requires the extrajudicial
agreement to be filed in the office of the register of deeds; provides that should the
heirs disagree, 'they may do so in an ordinary action of partition', and that 'if there
is only one heir or one legatee, he may adjudicate to himself the entire estate by
means of an affidavit filed in the office of the register of deeds', and that 'it shall be
presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent" [ (Italics
mine) ; Laurel, Procedural Reform in the Philippines, pp.137-138].
The phrase "extrajudicial settlement" unquestionably means liquidation and
distribution of the estate without judicial proceeding. In other words, even in cases
of testate succession, the heirs and legatees, when they are all of age or Are
represented by their judicial guardians, and there are no debts to be paid, are
allowed by section 1 of Rule 74 of the Rules of Court to liquidate and distribute
among themselves the estate left by the decedent and need not go to court even for
the probate of the will. Unless legal terms mean nothing, this is clearly what is
meant in said provision by the words "extrajudicial settlement" and by the clause "*
* * the parties may, without securing letters of administration, divide the estate
among themselves as they see fit" * * *. When judicial administration is made
unnecessary by the provision, the inevitable implication is that the probate of the
will is also unnecessary, the probate having no other object than administration for

purposes of distribution according to the provisions of the will. That is why section 4
of Rule 78 provides :
"Estate, How Administered.When a will is thus allowed, the court shall grant
letters testamentary, or letters of administration with the will annexed, and such
letters testamentary or of administration shall extend to all the estate of the
testator in the Philippines. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of according to such will, so far as such
will may operate upon it; and the residue, if any, shall be disposed of as is provided
by law in cases of estates in the Philippines belonging to persons who are
inhabitants of another state or country."
If judicial administration and distribution is made unnecessary by section 1 of
Rule 74, then, I repeat, the probate of the will being purposeless, becomes
unnecessary. If the parties have already divided the estate in accordance with the
will, the probate of the will is a useless ceremony. If they have divided the estate in
a different manner, the probate of the will is worse than useless; it is ridiculous. The
following words of this Court in a previous case may well be here reiterated:
"These sections provide for the voluntary division of the whole property of the
decedent without proceedings in court. The provisions which they contain are
extremely important. The wisdom which underlies them is apparent. It is the
undisputed policy of every people which maintains the principle of private
ownership of property that he who owns a thing shall not be deprived of its
possession or use except for the most urgent and imperative reasons and then only
so long as is necessary to make the rights which underlie those reasons effective. It
is a principle of universal acceptance which declares that one has the instant right
to occupy and use that which he owns, and it is only in the presence of reasons of the
strongest and most urgent nature that that principle is prevented from
accomplishing the purpose which underlies it. The force which gave birth to this
stern and imperious principle is the same force which destroyed. the feudal
despotism and created the democracy of private owners.
"These provisions should, therefore, be given the most liberal construction so that
the intent of the framers may be fully carried out. They should not be straitened or
narrowed but should rather be given that widenessand fullness of application
without which they cannot produce their most beneficial effects.* * * The purpose
which underlies them, as we have already intimated, is to put into one's hands the
property which belongs to him not only at the earliest possible moment but also

with the least possible expense. By permitting the partition and division without
proceedings in court no time is lost and substantially all expense and waste are
saved. This is as it should be. The State fails wretchedly in its duty to its citizens if
the machinery furnished by it for the division and distribution of the property of a
decedent is so cumbersome, unwieldly and expensive that a considerable portion of
the estate is absorbed in the process of such division."
*
*
*
(McMicking vs. Sy Conbieng, 21 Phil., 211; 219-220).
Indeed, there can be no valid reason why the probate of a will may not be
dispensed with by agreement of all the parties interested and the estate left by the
decedent settled extrajudicially among all the heirs and legatees, as is now provided
in section 1 of Rule 74. It is well recognized that the allowance of a will gives
conclusiveness merely to its due execution, but not to the intrinsic validity of its
provisions which are governed by the substantive law regarding descent and
distribution. If so, why cannot all the parties interested agree, without going to
court, that the will of the decedent is in form valid (this being the only point to be
litigated in a probate proceeding), and that they will divide the inheritance in the
manner acceptable to them? The procedure would not be against public policy or the
law placing in the hands of the courts the probate of wills, because what the courts
are enjoined to do for the benefit of the parties, the latter have already done. As long
as the extrajudicial partition of the estate does not affect the rights of third parties
and is not rendered invalid by any provision of the substantive law, no possible
objection can be raised thereto. On practical considerations, it would be useless to
force the parties, at their expense, to go thru the formality of probating a will and
dividing the estate in accordance therewith, because as soon as the routine is over,
they are of course free to make such transfers to one another as will be necessary to
effect a partition which they would have made if they were allowed to settle the
estate extrajudicially. It is true that there are provisions in the Rules of Court
compelling the delivery of a will to the competent court and punishing omissions to
do so, but said provisions are calculated to protect the interests of the persons
entitled to share in the inheritance. The latter may waive such benefit. This waiver
cannot be said to be a withdrawal or diminution of the jurisdiction of the court,
since it only implies a desire of the parties not to litigate. The fear that "absent
legatees and devisees, or such of them as may have no knowledge of the will, could
be cheated of their inheritance thru the collusion of some of the heirs who might
agree to the partition of the estate among themselves to the exclusion of others", is
wisely provided against in the requirement of the Rule that all the parties

interested and all the beneficiaries under the will should be parties to the extrajudicial settlement. The participation of all the interested parties excludes the
probability of fraud or collusion and, even in that eventuality, the aggrieved
beneficiaries are not without adequate remedy for the voidance of the partition
under the Civil Code.
And this is in accordance with the weight of authority in this and other
jurisdictions. In Leao vs. Leao (25 Phil., 180), all the heirs and legatees have
made an extrajudicial partition of the estate left by the decedent and then filed the
will in court which was probated. Nine years of costly probate proceedings have
followed after which the extrajudicial partition was made known to court. Such
extrajudicial partition was objected to by one party upon the ground that it was not
in conformity with the provisions of the will. But the trial Court held:
"Naturally the partition made by the heirs voluntarily and spontaneously must produce
and has produced a legal status, which cannot be annulled merely for the caprice of one
person. And it cannot be said that, because the partition was not made in accordance with
the will, if such be the case, the latter has to be annulled, for by voluntarily and
spontaneously concurring therein they implicitly renounced the effects of said will, of which
they were'aware."On appeal, this Court affirmed the ruling with the following

pronouncement:

"In view of the positive finding of the judge of the lower court that there had been a
voluntary partition of the estate among the heirs and legatees and in the absence of positive
proof to the contrary, we must conclude that the lower court had some evidence to support
his conclusion. If the heirs and legatees had voluntarily divided the estate among themselves, then their division is conclusive, unless and until it is shown that there were debts
existing against the estate which had not been paid. No claim is made whatever by third
parties nor objections of any character are made by others than the heirs against said
partition. We see no reason why the heirs and legatees should not be bound by their
voluntary acts." (Pages 183-184).

This case furnishes precisely a valuable experience as to the practical wisdom


underlying the procedure established in section 1 of Rule 74. After the will was
probated and after nine years of costly administration proceedings, nothing
absolutely nothingwas accomplished by the court except to make the belated
pronouncement that the extrajudicial partition made by the parties prior to the
institution of the proceedings was proper and binding upon them. Thus, the whole
proceedings for nine years have proved no more than a futile chronicle of wasted
time and money for the. parties and the court. This disgraceful experience could not

and did not pass unnoticed to the members of this Court wljo drafted the new Rules
of Court. The solemn admonition made by this Court in a previous case
(McMicking vs. Sy Conbieng, supra) when it said that "the State fails wretchedly in
its duty to its citizens if the machinery furnished by it for the division and
distribution of the property of a decedent is so cumbersome, unwieldly aiid
expensive that a considerable portion of the estate is absorbed in the process of such
division", rang with re-echoing insistence and was heeded to when the new Rules of
Court was drafted and promulgated. The fundamental policy pervading the whole
system of procedure adopted in said Rules is speed, economy and justice. Thus,
features of procedure were done away with when, without them, the same purpose
may be achieved. The result is brevity and simplicity of procedure with, such
guarantees as are necessary to assure due process. And to remedy such evil as is
disclosed in the Leafio case, a completely extrajudicial settlement is allowed even in
testate succession with the probate of the will dispensed with, when the heirs and
legatees who are all of age or represented by their judicial guardians, so agree, and
there are no debts to be paid. Thus, the scope of section 596 of Act No. 190 was
amplified and with it the ruling of this Court in Riosa vs. Rocha (48 Phil. 737). The
procedure is in consonance with the almost unanimous weight of authority in other
jurisdictions:

"The complaint, to which a demurrer was sustained, shows that all the persons
interested in a decedent's estate, as widow, heirs, distributees, legatees, or devisees, includ ing the person appointed executrix by the will, and the husbands of femes covert,(all being
adults), by agreement divided among themselves all the property of the estate according to
the direction of the will, paid off all debts against the estate, and delivered the note
described to the plaintiff, as a part of her share; and all this was done without probate of
the will, or administration of the estate. The effect of such a division was to invest the
plaintiff with an equitable title to the note. In the absence' of the will, the decisions of this
court, heretofore made, would meet every argument in favor of an opposite conclusion.
(Anderson vs. Anderson,
37
Ala.,
683;
Marshall vs. Crow,
29
Ala.,
278;
Vanderveer vs. Alston, 16 Ala., 494; Miller vs. Eatman, 11 Ala., 609). Does the presence of
an unprobated will, as a feature of this case, take it out of the principle of those de cisions?
We can perceive no sufficient reason why it should. All the parties interested, or to be
affected, may as well by agreement divide property, where there is a will, without employing
the agency of courts, as in case of intestacy. Parties, competent to act, ought to do that,
without the agency of courts, which the courts would ultimately accomplish.

To deny them the privilege of so doing, would manifest a judicial abhorrence of


harmony. By the probate of the will, the claims of heirs and distributees and of the

widow, would have been subordinated to the directions of the will. This has been
accomplished by agreement. There being no debts, the executrix would have had no
other duty to perform, than to divide the property according to the will. This, too,
has been done by agreement of competent parties. All the ends and objects of
judicial proceedings have been accomplished, by agreement of the parties; and that
agreement must be effective." (Carter vs. Owens, 41 Ala., 215; 216-217).
"The absence of sound objection on this ground, to a contract having for its sole
purpose the disposition of property in a manner different from that proposed by a
testator, even where the contract contemplates the rejection of the will when offered
for probate or its setting aside when admitted to probate, when it is entirely free
from fraud, and is made by all the parties in interest, may be freely conceded. As
has often been substantially said, the public generally has no interest in the matter
of the probate of. a will; and only those interested in the estate under the will or
otherwise are affected by such a contract. If they all agree upon some course to be
followed, and their contract is otherwise free from contemplated fraud or violation of
any law, no one else has any such interest as warrants complaint. Such was the
character of contract involved in Spangenberg vs. Spangenberg (App.), 126 Pac, 379,
especially relied on by plaintiff here, where the contract purported to affect only
such property of the deceased as should in fact be received by the parties thereto. In
Estate of Garcelon, 104 Cal., 570; 38 Pac, 414; 32 L. R. A., 595; 43'Am. St. Rep., 134,
another case much relied on by plaintiff, a contract by an heir to refrain from
contesting a will was involved. It was said that the contract was one that concerned
the parties alone, and one that did not appear to be against public policy."
(Gugolz vs. Gehrkens, 130 Pac. Rep., 8, 10; 164 Cal., 596).
"The question of public policy is introduced. The disposition of one's property
after death is controlled by statute. One of the next of kin has no vested interest in
such property. In cases of intestacy, a next of kin has such interest as the statute
declares. In case there is a will, he has an interest which gives him a standing and
right to contest the will. This right is his alone; in it the public has no interest; he
may refrain from exercising it, or he may dispose of it as he wishes, by release or
assignment or settlement, and the law of public policy is not offended."(In re Cook's
Will, 217 N. Y. S., 176, 180-181).
"Agreement.'It has been definitely decided by the courts of this state, and of
many other states, that the beneficiaries under a will have a right to agree among
themselves upon any distribution they see proper of the property bequeathed to

them. * * * That holding is based upon the proposition that the property is theirs.
No one else is interested in its disposition, and they may, with propriety, make any
distribution of it that suits them, so long as they do not invade the rights of other
parties or infringe some rule of public policy'." (Fore vs. McFadden, 276 N. W., 327;
329).
"The first assignment of error presented by appellants complains of the action of
the court in sustaining exceptions to averments asking the enforcement of the
agreement that the will should not be probated, and that the estate should be
divided among the parties as they would be entitled as heirs at law of the deceased,
the proponent of the will surrendering thereby his rights as principal legatee. This
assignment must be sustained. It cannot be seen that the agreement is contrary to
public policy. Parties may make any contract with reference to their property rights
that is not illegal, may adjust by compromise their differences and disputes
concerning the same and, as they bind themselves, so shall they be bound. It is
difficult to understand why this cannot be effected by an agreement not to probate a
will, or how it interferes with public policy. The power to litigate and to establish a
right by appeal to the courts is as much the subject of contract as any other right in
property. Such adjustments by contract are favored by the law and the courts, and
are not deemed to be an unwarranted interference with the jurisdiction of the
courts, or against public policy. On the contrary, public policy favors them.
"Appellants have cited a case in point,the case of Phillips v. Phillips, 8 Watts,
197, in which it is held competent for devisees and legatees to bind themselves by a
written or parol agreement to destroy a will before probate, and that a party to the
agreement would be estopped from claiming any interest under the will. The court
says: 'It cannot admit of doubt that before probate the parties in interest under a
will would have the right to set aside a will, and such an act would be favored, when
the object was to avert a family controversy'. The agreement that the will should not
be probated, and that the parties would take the property as heirs at law of the
deceased, destroyed the legal effect of the will; and it could not thereafter have legal
existence in conferring rights upon the legatees." (String-fellow vs. Early, 40 SW.
871, 873-874; 15 Tex. Civ. App., 597).
"The contention that the complaint does not state a cause of action, because the
contract sued on is against public policy, and therefore void, is made here for the
first time. It is to the interest of the public generally that the right to make contract
should not be unduly restricted, and no agreement will be pronounced void, as being
against public policy, unless it clearly contravenes that which has been declared by

statutory enactment or by judicial decisions to be public policy, or unless the


agreement manifestly tends in some way to injure the public. Whether or not a
contract in any given case is contrary to public policy is a question of law, to be
determined from the circumstances of each particular. case. Smith vs. Du Bose, 78
Ga., 413; 3 SE., 309-316; 6 Am. St. Rep., 260; Weber vs. Shay, 56 Ohio St., 116; 46
NE., 377; 37 L. R. A., 230; 60 Am. St. Rep., 743; Pierce vs. Randolph, 12 Tex., 290;
Printing Numerical Registering Co. vs. Sampson, 19 L. R. Eq. Cas., 465.
"The contract in controversy is in effect but an agreement whereby the parties
thereto, 'because of their love and affection for one another' and 'being desirous of
avoiding litigation over the estate' of their father 'in case of his death,' agreed to
ignore his will in the event that he made one, and then share his estate equally as if
he had died intestate. In other words, the contract was but an agreement of heirs
apparent not to contest the will of an ancestor. There is nothing to be found in our
code or statutory law prohibiting the making and enforcement of such a contract,
and it has been held in this state that a contract, made after the death of the
deceased, not to contest his will, is purely personal to the parties making it, that it
is not against public policy, and that, when fairly made, it will be enforced."
(Spangenberg vs. Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App., 439).
"Probate Dispensed With.Probate of a will may be dis-pened with by an
agreement between the persons interested ; or it may be dispensed with where the
testator, before his death, conveyed to the devisees all the property which he had
devised to them, or where the will makes no other disposition of the testator's
property than the law would have done had he died intestate, and the rights sought
to be established are admitted by all concerned. But where the language of the will
expressly invokes the jurisdiction of the probate court the fact that no
administration is necessary does not affect the power of the court to probate the
will." (68 C. J., pp. 877-878).
"Agreement between Persons Interested: a. Requisites and Validity. (1) In General.
It has been held that, since the nature of a probate proceeding is one in rem, the
parties cannot submit a controversy arising therein to arbitration. The law, however,
favors the settlement, in good faith, of will contests, by a so-called 'family
settlement', although it changes the mode of disposition of the estate; and, therefore,
subject to the limitation that a contestant cannot compromise anything beyond his
own personal interest in the contest, persons, such as devisees, legatee, heirs, or
next of kin, having interests in the will or estate, sufficient to entitle them to oppose

probate or contest the will, may enter into an agreement which, in the absence of
fraud or misrepresentation, is valid and binding on all the parties thereto, whereby
they waive probate of the will and bind themselves to abide by its provisions, or
whereby they agree that the will is not to be probated or is to be superseded or
destroyed; or whereby any controversy relative to the probate or contest of the will is
compromised or settled, and a contest is avoided, whether or not there were, in fact,
valid grounds for the contest. Such an agreement, in order to be valid, must not
exclude anyone entitled under the will, must be entered into by all the persons
affected thereby, and all the parties thereto must be competent to make the
agreement, and either they or their representative must fully execute it, and, under
some statutes, it must be properly approved by the court." ([Italics supplied] 68 C.
J., pp. 909-910).
"As to Probate.The operation and effect of the agreement may be not to
supersede the provisions of the will, but to carry out its provisions without a
probate, and under such an agreement the parties are precluded from denying the
probate, or insisting on the invalidating of the will for want of probate. So, also, a
person who agrees not to contest the will is precluded from opposing probate; or the
probate of a will may be dispensed with, and the persons interested in the estate
under the will given at least an equitable interest in the property, where they, being
under no disability, divide the estate, pursuant to an agreement among themselves.
Where the effect of the agreement of all interested parties is to repudiate or renounce
the will, it will not be probated, especially where the agreement expressly so
provides; but it has been held that, where the executor, defending a torn will,
agrees, for a consideration, not to probate it, the court should not refuse probate
without notifying other beneficiaries and requiring testimony as to the tearing of the
will by the testator. Probate, however, is not prevented by an agreement executed by
a part only of the beneficiaries, and the parties to such agreement are not prevented
thereby from taking under the will which is probated by another interested person."
([Italics supplied] 68 C. J., pp 914-915).
"Thus, where the parties, being in doubt as to the instrument being construed as
a will, and for the purpose of saving a family controversy and for the purpose of dividing the estate, enter into a compromise and settlement agreement, under the
terms of which the entire estate is to be, and has in part been, divided, and agree
that the instrument shall not be offered for probate, it is sufficient to prevent a
probate." (Brownvs. Burk, 26 NW [2d ed.], 415).

"Validity of Agreements to Dispense with Probate or to Modify, or Set Aside Will.


Though in some jurisdictions an agreement to dispense with the probate of a will
has been declared to be against public policy and void, in a majority of the decisions
on the point it has been held that all the persons interested in a decedent's estate
may by agreement divide the estate among themselves, without probating such
decedent's will or administering the estate, and the validity of a contract having for
its sole purpose the disposition of property in a manner different from that proposed
by a testator, even where the contract contemplates the rejection of the will when
offered for probate or its setting aside when admitted to probate, when it is entirely
free from fraud, and is made by all the parties in interest, would seem to be freely
conceded. Thus it has been held that all the parties in interest may agree to
eliminate from a will a clause providing for survivorship among them. But an
agreement to resist the probate of a will and procure it to be set aside so as to cut off
the interest of one who is not a party to such agreement is against public policy, Nor
does the right of all the parties in interest to set aside or disregard a will extend to
the case of an active trust, for a definite term, created by a testator as he deems
proper for the protection of his beneficiaries. A contract between the next of kin of a
decedent, that they will each have a certain portion of the estate, does not amount
to an agreement to divide the estate without probating the will." (28 R. C. L., pp.
357-358).
The minority decision pointed out in the last quotation from the Ruling Case Law
(Vol. 28, pp. 357-358) is from the Supreme Court of only one Statethat of
Wisconsin, in re Will of Dardis (135 Wis., 457; 115 NW., 332). All the other States
held the contrary doctrine that is now embodied in section 1 of Kiile 74.
Commenting upon the Wisconsin rule, the Editor of the L. R. A. says the following:
"No case has been found other than Re Dardis wherein any court passed upon the
validity of a stipulation to secure the denial to probate of a will theretofore offered
for probate, on the ground that the testator was mentally incompetent to make a
will at the time of its execution. The decision of the court is based upon the doctrine
therein enunciated, that proceedings to probate a will are proceedings in rem,which
public interest demands should be pursued to a final adjudication, regardless of the
wishes of the interested parties. In this connection and with reference to this
broader question, it is of interest to note that courts of other jurisdictions, although
generally recognizing that proceedings to probate a will are proceedings in rem, hold
that the proceeding is inter partes to the extent that all the parties in interest may

control the probate proceedings, even to the extent of doing away with the probate."
(23 L. R. A. [N.S.],p. 783).

For the sake of fixity in judicial policy, this Court in the exercise of its constitutional powers, has
solemnly given a form of a rulesection 1, Rule 74to what was merely the consensus of judicial
opinion. We cannot now repudiate the procedure outlined in said provision unless we amend it by
another rule.
The majority, however, expresses fear that abuses may easily be committed under the Rules. Such
fears have always been the bugbear set up against all task of procedural reforms. To be sure, there
has never been any provision of law that is not liable to abuses. If by a mere possibility of abuse we
are to disregard clear provisions of a procedural law, the result would be not only the abrogation of
all laws but also the abolition of all courts. When a procedural law is calculated to remedy an evil
under a specific situation therein contemplated, it must be deemed good even if other situations may
be simulated or falsified and placed within its purview. And when that law is duly enacted, it is no
concern of the courts to pass upon its wisdom, their dutybeing to apply its provisions in a manner
which shall notdefeat the intention underlying it. Laws are promulgated to be obeyed and when they
are abused there are the courts to check up the abuse. Courts must deal with the specific
circumstances of each case and construe the provisions in such a manner as to make it impregnable
if possible to further abuses. This is constructive, not destructive, jurisprudence. This explains why
laws are more often worded so broadly as to lay merely general principlesa skeleton the flesh to
be supplied with judicial decisions. Judicial statemanship requires that courts in deciding judicial
controversies should be careful not to advance opinions which are not necessary to a proper
disposition of the case. Judicial experience has shown that such advanced opinions may not
infrequently place the court in an embarrassing position when a proper case with the proper factual
environment is properly presented with all its angles before the court. Jurisprudence must be
carefully progressive and not impetuously aggressive. For instance, the majority, impressed by the
awful circumstances of the present case, has found it dangerous to hold that the probate of the will
may be dispensed with. While this conclusion is constructive under the peculiar facts of the case, to
generalize it is to make destructive. If a proper case is presented to the court wherein all the heirs
and legatees who are all of age have agreed to dispense with the probate of a will and have actually
made an extrajudicial partition, and if it appears further that each of the recipients is in peaceful
enjoyment of his share in the estate, I am sure that the majority, with the practical wisdom they have
shown in other cases, would not dare disturb the peace enjoyed by such heirs and legatees and
compel them to go into court and litigate.
The majority, without the necessity of holding whether the probate of a will may or may not be
dispensed with under Rule 74, section 1, could have decided this case by stating that said provision is
not applicable, its requirements not being present. And I would be wholly agreeable to this
conclusion because the beneficiaries under the will do not appear to have made an extrajudicial
settlement of the estate left by the deceased Victorino L. Guevara, nor the action brought by the
natural daughter, Rosario Guevara, is one for partition against all such beneficiaries founded either
on an extrajudicial settlement or on the provisions of the will as accepted by all parties to be valid
anol binding. Upon the contrary, Rosario Guevara appears to be wishing to take advantage of the will
in so far as it is favorable to her, and repudiate it in so far as it is favorable to others. Apparently,
Rosario Guevara was in possession of the will and the other heirs and legatees were not aware of its

contents. The situation not being the one contemplated by section 1 of Rule 74, plaintiff may not
invoke its provisions.
Judgment modified.

G.R. No. 168156. December 6, 2006.

HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P.


Llonillo, petitioners, vs.VICENTA UMENGAN, respondent.
Appeals; The technical requirements for filing an appeal are not sacrosanct.The
technical requirements for filing an appeal are not sacrosanct. It has been held that while
the requirements for perfecting an appeal must be strictly followed as they are considered
indispensable interdictions against needless delays and for orderly discharge of judicial
business, the law does admit of exceptions when warranted by circumstances.
Ejectment; It is well-settled that in ejectment suits, the only issue for resolution is the
physical or material possession of the property involved, independent of any claim of
ownership by any of the party litigants.It is well-settled that in ejectment suits, the only
issue for resolution is the physical or material possession of the property involved,
independent of any claim of ownership by any of the party litigants. However, the issue of
ownership may be provisionally ruled upon for the sole purpose of determining who is
entitled to possession de facto.
Wills; Probate Proceedings; The purported last will and testament of Isabel Cuntapay
could not properly be relied upon to establish petitioners right to possess the subject lot
because, without having been probated, the said last will and testament could not be the
source of any right.The purported last will and testament of Isabel Cuntapay could not
properly be relied upon to establish petitioners right to possess the subject lot because,
without having been probated, the said last will and testament could not be the source of
any right.

Same; Same; A will is essentially ambulatoryat any time prior to the testators death,
it may be changed or revokedand until admitted to probate, it has no effect whatever and
no right can be claimed thereunder.In Caiza v. Court of Appeals, 268 SCRA 640 (1997),
the Court ruled that: [a] will is essentially ambulatory; at any time prior to the testators
death, it may be changed or revoked; and until admitted to probate, it has no effect
whatever and no right can be claimed thereunder, the law being quite explicit: No
will shall pass either real or personal property unless it is proved and allowed in accordance
with the Rules of Court.
Same; Same; The presentation of the will for probate is mandatory and is a matter of
public policy.Dr. Tolentino, an eminent authority on civil law, also explained that
[b]efore any will can have force or validity it must be probated. To probate a will
means to prove before some officer or tribunal, vested by law with authority for that
purpose, that the instrument offered to be proved is the last will and testament of the
deceased person whose testamentary act it is alleged to be, and that it has been executed,
attested and published as required by law, and that the testator was of sound and disposing
mind. It is a proceeding to establish the validity of the will. Moreover, the presentation of
the will for probate is mandatory and is a matter of public policy.
Same; Same; Ownership; The conveyances made by the children of Isabel Cuntapay by
her first marriage of their respective pro indiviso shares in the subject lot to respondent are
valid because the law recognizes the substantive right of heirs to dispose of their ideal share
in the co-heirship and co-ownership among the heirs.Considering that her purported last
will and testament has, as yet, no force and effect for not having been probated, her six
children are deemed to be co-owners of the subject lot having their respective pro
indiviso shares. The conveyances made by the children of Isabel Cuntapay by her first
marriage of their respective pro indiviso shares in the subject lot to respondent are valid
because the law recognizes the substantive right of heirs to dispose of their ideal share in
the coheirship and/co-ownership among the heirs.

PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Edward P. Llonillo for petitioners.
Romeo C. Calubaquib for respondent.
CALLEJO, SR., J.:

Before the Court is the petition for review on certiorarifiled by the Heirs of Rosendo
Lasam, represented by Rogelio M. Lasam and Atty. Edward P. Llonillo, seeking the
reversal of the Decision dated February 16, 2005 of the Court of Appeals (CA) in
CA-G.R. SP No. 80032. The assailed decision reversed and set aside the decision of
the Regional Trial Court (RTC) of Tuguegarao City, Cagayan and dismissed, for lack
of merit, the complaint for unlawful detainer file by the said heirs against
respondent Vicenta Umengan.
1

The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of
the same city, Branch III, which had rendered judgment in favor of the heirs of
Rosendo Lasam and directed the ejectment of respondent Vicenta Umengan from
the lot subject of litigation.
The present petition likewise seeks the reversal of the CA Resolution dated May
17, 2005 denying the motion for reconsideration filed by the heirs of Rosendo Lasam.
As culled from the records, the backdrop of the present case is as follows
The lot subject of the unlawful detainer case is situated in Tuguegarao City,
Cagayan. It is the eastern half portion of Lot No. 5427 and Lot No. 990. The first lot,
Lot No. 5427 containing an area of 1,037 square meters, is covered by Original
Certificate of Title (OCT) No. 196. The second lot, Lot No. 990 containing an area of
118 sq m, is covered by OCT No. 1032. These lots are registered in the names of the
original owners, spouses Pedro Cuntapay and Leona Bunagan.
In an instrument denominated as Deed of Confirmation and acknowledged before
a notary public on June 14, 1979, the heirs of the said spouses conveyed the
ownership of Lots Nos. 990 and 5427 in favor of their two children, Irene Cuntapay
and Isabel Cuntapay. In another instrument entitled Partition Agreement and
acknowledged before a notary public on December 28, 1979, it was agreed that the
eastern half portion (subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs
of Isabel Cuntapay. On the other hand, the remaining portion thereof (the west
portion) shall belong to the heirs of Irene Cuntapay. The subject lot (eastern half
portion) has an area of 554 sq. m.
Isabel Cuntapay had four children by her first husband, Domingo Turingan,
namely: Abdon, Sado (deceased), Rufo and Maria. When Domingo Turingan passed

away, Isabel Cuntapay remarried Mariano Lasam. She had two other children by
him, namely: Trinidad and Rosendo.
Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay
by her second husband) filed with the MTCC a complaint for unlawful detainer
against Vicenta Umengan, who was then occupying the subject lot. Vicenta
Umengan is the daughter of Abdon Turingan (son of Isabel Cuntapay by her first
husband).
In their complaint, the heirs of Rosendo Lasam alleged that they are the owners
of the subject lot, having inherited it from their father. Rosendo Lasam was
allegedly the sole heir of the deceased Pedro Cuntapay through Isabel Cuntapay.
During his lifetime, Rosendo Lasam allegedly temporarily allowed Vicenta
Umengan to occupy the subject lot sometime in 1955. The latter and her husband
allegedly promised that they would vacate the subject lot upon demand. However,
despite written notice and demand by the heirs of Rosendo Lasam, Vicenta
Umengan allegedly unlawfully refused to vacate the subject lot and continued to
possess the same. Accordingly, the heirs of Rosendo Lasam were constrained to
institute the action for ejectment.
In her Answer with Counterclaim, Vicenta Umengan specifically denied the
material allegations in the complaint. She countered that when Isabel Cuntapay
passed away, the subject lot was inherited by her six children by her first and second
marriages through intestate succession. Each of the six children allegedly had a pro
indiviso share of 1/6 of the subject lot.
It was further alleged by Vicenta Umengan that her father, Abdon Turingan,
purchased the respective 1/6 shares in the subject lot of his siblings Maria and Sado.
These conveyances were allegedly evidenced by the Deed of Sale dated March 3,
1975, appearing as Doc. No. 88, Page No. 36, Book No. XIV, series of 1975 of the
notarial book of Atty. Pedro Lagui.
Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta
Umengan and her husband as evidenced by the Deed of Sale dated June 14, 1961,
appearing as Doc. No. 539, Page No. 41, Book No. V, series of 1961 of the notarial
book of Atty. Pedro Lagui. Also on June 14, 1961, Abdon donated his 1/6 share in the
subject lot to her daughter Vicenta Umengan as evidenced by the Deed of Donation

appearing as Doc. No. 538, Page No. 41, Book No. V, series of 1961 of the notarial
book of the same notary public.
According to Vicenta Umengan, the children of Isabel Cuntapay by her second
husband (Rosendo and Trinidad Lasam) own only 2/6 portion of the subject lot. She
thus prayed that the complaint for ejectment be dismissed and that the heirs of
Rosendo Lasam be ordered to pay her damages.
The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and
directed the ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence
to the newly discovered last will and testament (entitledTestamento Abierto)
purportedly executed by Isabel Cuntapay where she bequeathed the subject lot to
her son, Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the North by Sr. Elia
Canapi; to the South, by Calle Aguinaldo; to the East, by Calle P. Burgos and the West, by
the late Don Luis Alonso; on the property which is my share stands a house of light
materials where I presently reside; this 1/5th (one-fifth) share of my inheritance from the
Cuntapays I leave to my son Rosendo Lasam and also the aforementioned house of light
material x x x
2

The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the
subject lot on the last will and testament of Isabel Cuntapay while Vicenta
Umengan hinged hers on intestate succession and legal conveyances. Citing
jurisprudence and Article 1080 of the Civil Code, the MTCC opined that testacy
was favored and that intestacy should be avoided and the wishes of the testator
should prevail. It observed that the last will and testament of Isabel Cuntapay was
not yet probated as required by law; nonetheless, the institution of a probate
proceeding was not barred by prescription.
3

With the finding that the subject lot was already bequeathed by Isabel Cuntapay
to Rosendo Lasam, the MTCC held that the siblings Abdon, Sado, Rufo and Maria
Turingan no longer had any share therein. Consequently, they could not convey to
Vicenta Umengan what they did not own. On the issue then of who was entitled to
possession of the subject lot, the MTCC ruled in favor of the heirs of Rosendo Lasam
as it found that Vicenta Umengans possession thereof was by mere tolerance. The
dispositive portion of the MTCC decision reads:

WHEREFORE, in the light of the foregoing considerations, this Court Resolve[d] to order
the EJECTMENT of VICENTA T. UMENGAN and in her place INSTITUTE THE HEIRS
OF ROSENDO LASAM.
It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the sum of
P500.00 pesos representing the monthly rental of the land from August 2000 to the time
this case shall have been terminated.
Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorneys fees
plus cost of this litigation.
So Ordered.

On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the
reasoning of the MTCC that the testamentary disposition of the property of Isabel
Cuntapay should be respected, and that the heirs of Rosendo Lasam have a better
right to possess the subject lot.
Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the
MTCC had no jurisdiction over the case as it involved the recovery of ownership of
the subject lot, not merely recovery of possession or unlawful detainer. She also
assailed the RTCs and the MTCCs holding that the purported Testamento
Abierto of Isabel Cuntapay prevails over Vicenta Umengans muniments of title and,
consequently, the heirs of Rosendo Lasam have a better right to the subject lot than
Vicenta Umengan.
In the assailed Decision dated February 16, 2005, the CA reversed and set aside
the decision of the RTC. The appellate court preliminarily upheld the jurisdiction of
the MTCC over the subject matter as it found that the allegations in the complaint
made out a case for unlawful detainer. The heirs of Rosendo Lasam in their
complaint, according to the CA, only sought for Vicenta Umengan to vacate and
surrender possession of the subject lot. The CA also rejected the contention of the
heirs of Rosendo Lasam that the issue of ownership of the subject lot had already
been settled in another case, Civil Case No. 4917, before RTC (Branch 3) of
Tuguegarao City. The CA stated that the trial courts order dismissing the said case
was not a judgment on the merits as to constitute res judicata.

However, the CA declared that the RTC, as well as the MTCC, erred in ruling
that, by virtue of the purported last will and testament of Isabel Cuntapay, the
heirs of Rosendo Lasam have a better right to the subject lot over Vicenta Umengan.
The CA explained that the said last will and testament did not comply with the
formal requirements of the law on wills.
6

Specifically, the CA found that the pages of the purported last will and testament
were not numbered in accordance with the law. Neither did it contain the requisite
attestation clause. Isabel Cuntapay as testator and the witnesses to the will did not
affix their respective signatures on the second page thereof. The said instrument
was likewise not acknowledged before a notary public by the testator and the
witnesses. The CA even raised doubts as to its authenticity, noting that while Isabel
Cuntapay died in 1947 and the heirs of Rosendo Lasam claimed that they
discovered the same only in 1997, a dateMay 19, 1956appears on the last page
of the purported will. The CA opined that if this was the date of execution, then the
will was obviously spurious. On the other hand, if this was the date of its discovery,
then the CA expressed bafflement as to why the heirs of Rosendo Lasam, through
their mother, declared in the Partition Agreement dated December 28, 1979 that
Isabel Cuntapay died intestate.
It was observed by the CA that as against these infirmities in the claim of the
heirs of Rosendo Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of
Donation to justify her possession of the subject lot. The CA noted that she has also
possessed the subject property since 1955. Such prior possession, the CA held, gave
Vicente Umengan the right to remain in the subject lot until a person with a better
right lawfully ejects her. The heirs of Rosendo Lasam do not have such a better
right. The CA stressed that the ruling on the issue of physical possession does not
affect the title to the subject lot nor constitute a binding and conclusive adjudication
on the merits on the issue of ownership. The parties are not precluded from filing
the appropriate action to directly contest the ownership of or the title to the subject
lot.
The decretal portion of the assailed decision of the CA reads:
WHEREFORE, premises considered, the appeal is GRANTED. The August 29, 2003
decision of the RTC, Branch 1, Tuguegarao City, Cagayan in Civil Case No. 5924 is hereby

REVERSED and SET ASIDE. Private respondents complaint for unlawful detainer against
petitioner is dismissed for lack of merit.
SO ORDERED.

The heirs of Rosendo Lasam sought the reconsideration thereof but their motion
was denied by the CA in its Resolution dated May 17, 2005.
The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the
CA committed reversible error in setting aside the decision of the RTC, which had
affirmed that of the MTCC, and dismissing their complaint for unlawful detainer
against respondent Vicenta Umengan.
Petitioners argue that the CA erred when it held, on one hand, that the MTCC
had jurisdiction over the subject matter of the complaint as the allegations therein
make out a case for unlawful detainer but, on the other hand, proceeded to discuss
the validity of the last will and testament of Isabel Cuntapay.
Petitioners insist that respondent is holding the subject lot by mere tolerance and
that they, as the heirs of Rosendo Lasam who was the rightful owner of the subject
lot, have a better right thereto. It was allegedly error for the CA to declare the last
will and testament of Isabel Cuntapay as null and void for its non-compliance with
the formal requisites of the law on wills. The said matter cannot be resolved in an
unlawful detainer case, which only involves the issue of material or physical
possession of the disputed property. In any case, they maintain that the said will
complied with the formal requirements of the law.
It was allegedly also erroneous for the CA to consider in respondents favor the
deed of sale and deed of donation covering portions of the subject lot, when these
documents had already been passed upon by the RTC (Branch 3) of Tuguegarao City
in Civil Case No. 4917 when it dismissed the respondents complaint for partition of
the subject lot. The said order allegedly constituted res judicata and may no longer
be reviewed by the CA.
Petitioners emphasize that in an unlawful detainer case, the only issue to be
resolved is who among the parties is entitled to the physical or material possession
of the property in dispute. On this point, the MTCC held (and the same was
affirmed by the RTC) that petitioners have a better right since the merely

tolerated possession of the respondent had already expired upon the petitioners
formal demand on her to vacate. In support of this claim, they point to the affidavit
of Heliodoro Turingan, full brother of the respondent, attesting that the latters
possession of the subject lot was by mere tolerance of Rosendo Lasam who inherited
the same from Isabel Cuntapay.
According to petitioners, respondents predecessors-ininterest from whom she
derived her claim over the subject lot by donation and sale could not have conveyed
portions thereof to her, as she had claimed, because until the present, it is still
covered by OCT Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay.
Their respective estates have not been settled up to now.
It is also the contention of petitioners that the CA should have dismissed outright
respondents petition filed therewith for failure to comply with the technical
requirements of the Rules of Court. Specifically, the petition was not allegedly
properly verified, lacked statement of material dates and written explanation on
why personal service was not made.
This last contention of petitioners deserves scant consideration. The technical
requirements for filing an appeal are not sacrosanct. It has been held that while the
requirements for perfecting an appeal must be strictly followed as they are
considered indispensable interdictions against needless delays and for orderly
discharge of judicial business, the law does admit of exceptions when warranted by
circumstances. In the present case, the CA cannot be faulted in choosing to overlook
the technical defects of respondents appeal. After all, technicality should not be
allowed to stand in the way of equitably and completely resolving the rights and
obligations of the parties.
8

The Court shall now resolve the substantive issues raised by petitioners.
It is well-settled that in ejectment suits, the only issue for resolution is the
physical or material possession of the property involved, independent of any claim of
ownership by any of the party litigants. However, the issue of ownership may be
provisionally ruled upon for the sole purpose of determining who is entitled to
possession de facto.
10

In the present case, petitioners base their claim of right to possession on the
theory that their father, Rosendo Lasam, was the sole owner of the subject lot by

virtue of the newly discovered last will and testament of Isabel Cuntapay
bequeathing the same to him. Respondent is allegedly holding the subject lot by
mere tolerance of Rosendo Lasam and, upon the petitioners formal demand on her
to vacate the same, respondents right to possess it has expired.
On the other hand, respondent hinges her claim of possession on the legal
conveyances made to her by the children of Isabel Cuntapay by her first husband,
namely, Maria, Rufo, Sado and Abdon. These conveyances were made through the
sale and donation by the said siblings of their respective portions in the subject lot
to respondent as evidenced by the pertinent deeds.
The CA correctly held that, as between the respective claims of petitioners and
respondent, the latter has a better right to possess the subject lot.
As earlier stated, petitioners rely on the last will and testament of Isabel
Cuntapay that they had allegedly newly discovered. On the basis of this instrument,
the MTCC and RTC ruled that petitioners have a better right to the possession of
the subject lot because, following the law on succession, it should be respected and
should prevail over intestate succession.
However, contrary to the ruling of the MTCC and RTC, the purported last will
and testament of Isabel Cuntapay could not properly be relied upon to establish
petitioners right to possess the subject lot because, without having been probated,
the said last will and testament could not be the source of any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or personal property unless it is proved and allowed
in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for
the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testators death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary
for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the
testator or after his death, shall be conclusive as to its due execution.

In Caiza v. Court of Appeals, the Court ruled that: [a] will is essentially
ambulatory; at any time prior to the testators death, it may be changed or
revoked; and until admitted to probate, it has no effect whatever and no
11

right can be claimed thereunder, the law being quite explicit: No will shall pass
either real or personal property unless it is proved and allowed in accordance with
the Rules of Court.
12

Dr. Tolentino, an eminent authority on civil law, also explained that [b]efore any
will can have force or validity it must be probated. To probate a will means to
prove before some officer or tribunal, vested by law with authority for that purpose,
that the instrument offered to be proved is the last will and testament of the
deceased person whose testamentary act it is alleged to be, and that it has been
executed, attested and published as required by law, and that the testator was of
sound and disposing mind. It is a proceeding to establish the validity of the
will. Moreover, the presentation of the will for probate is mandatory and is a
matter of public policy.
13

14

Following the above truisms, the MTCC and RTC, therefore, erroneously ruled
that petitioners have a better right to possess the subject lot on the basis of the
purported last will and testament of Isabel Cuntapay, which, to date, has not been
probated. Stated in another manner, Isabel Cuntapays last will and testament,
which has not been probated, has no effect whatever and petitioners cannot claim
any right thereunder.
Hence, the CA correctly held that, as against petitioners claim, respondent has
shown a better right of possession over the subject lot as evidenced by the deeds of
conveyances executed in her favor by the children of Isabel Cuntapay by her first
marriage.
Contrary to the claim of petitioners, the dismissal of respondents action for
partition in Civil Case No. 4917 before the RTC (Branch 3) of Tuguegarao City does
not constitute res judicata on the matter of the validity of the said conveyances or
even as to the issue of the ownership of the subject lot. The order dismissing
respondents action for partition in Civil Case No. 4917 stated thus:

For resolution is a motion to dismiss based on defendants [referring to the petitioners


herein] affirmative defenses consisting inter alia in the discovery of a last will and
testament of Isabel Cuntapay, the original owner of the land in dispute.
xxx
It appears, however, that the last will and testament of the late Isabel Cuntapay has not
yet been allowed in probate, hence, there is an imperative need to petition the court for the
allowance of said will to determine once and for all the proper legitimes of legatees and
devisees before any partition of the property may be judicially adjudicated.
It is an elementary rule in law that testate proceedings take precedence over any other
action especially where the will evinces the intent of the testator to dispose of his whole
estate.
With the discovery of the will of the late Isabel Cuntapay in favor of the defendants, the
Court can order the filing of a petition for the probate of the same by the interested party.
WHEREFORE, in light of the foregoing considerations, let the above-entitled case be as
it is hereby DISMISSED.
SO ORDERED.

15

For there to be res judicata, the following elements must be present: (1) finality of
the former judgment; (2) the court which rendered it had jurisdiction over the
subject matter and the parties; (3) it must be a judgment on the merits; and (4)
there must be, between the first and second actions, identity of parties, subject
matter and causes of action. The third requisite, i.e., that the former judgment must
be a judgment on the merits, is not present between the action for partition and the
complaint a quo for unlawful detainer. As aptly observed by the CA:
16

Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in Civil Case No.
4917 reveals that the RTC, Branch 3, Tuguegarao, Cagayan, dismissed the complaint for
partition because of the discovery of the alleged last will and testament of Isabel Cuntapay.
The court did not declare respondents [referring to the petitioners herein] the owners of the
disputed property. It simply ordered them to petition the court for the allowance of the will
to determine the proper legitimes of the heirs prior to any partition. Instead of filing the
appropriate petition for the probate of Isabel Cuntapays will, the respondents filed the
present complaint for unlawful detainer. Viewed from this perspective, we have no doubt
that the courts Orders cited by the respondents are not judgments on the merits that

would result in the application of the principle of res judicata. Where the trial court merely
refrained from proceeding with the case and granted the motion to dismiss with some
clarification without conducting a trial on the merits, there is no res judicata.
17

Further, it is not quite correct for petitioners to contend that the children of Isabel
Cuntapay by her first marriage could not have conveyed portions of the subject lot to
respondent, as she had claimed, because until the present, it is still covered by OCT
Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. To recall, it was
already agreed by the heirs of the said spouses in a Partition Agreement dated
December 28, 1979 that the subject lot would belong to Isabel Cuntapay. The latter
died leaving her six children by both marriages as heirs. Considering that her
purported last will and testament has, as yet, no force and effect for not having been
probated, her six children are deemed to be co-owners of the subject lot having their
respective pro indiviso shares. The conveyances made by the children of Isabel
Cuntapay by her first marriage of their respective pro indiviso shares in the subject
lot to respondent are valid because the law recognizes the substantive right of heirs
to dispose of theirideal share in the co-heirship and/co-ownership among the heirs.
The Court had expounded the principle in this wise:
This Court had the occasion to rule that there is no doubt that an heir can sell whatever
right, interest, or participation he may have in the property under administration. This is a
matter which comes under the jurisdiction of the probate court.
The right of an heir to dispose of the decedents property, even if the same is under
administration, is based on the Civil Code provision stating that the possession of
hereditary property is deemed transmitted to the heir without interruption and from the
moment of the death of the decedent, in case the inheritance is accepted. Where there are
however, two or more heirs, the whole estate of the decedent is, before its partition, owned
in common by such heirs.
The Civil Code, under the provisions of co-ownership, further qualifies this right.
Although it is mandated that each co-owner shall have the full ownership of his part and of
the fruits and benefits pertaining thereto, and thus may alienate, assign or mortgage it,
and even substitute another person in its enjoyment, the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of the co-ownership. In other words, the
law does not prohibit a co-owner from selling, alienating or mortgaging his ideal share in
the property held in common.

As early as 1942, this Court has recognized said right of an heir to dispose of property
under administration. In the case ofTeves de Jakosalem vs. Rafols, et al., it was said that
the sale made by an heir of his share in an inheritance, subject to the result of the pending
administration, in no wise, stands in the way of such administration. The Court then relied
on the provision of the old Civil Code, Article 440 and Article 399 which are still in force as
Article 533 and Article 493, respectively, in the new Civil Code. The Court also cited the
words of a noted civilist, Manresa: Upon the death of a person, each of his heirs becomes
the undivided owner of the whole estate left with respect to the part or portion which might
be adjudicated to him, a community of ownership being thus formed among the coowners of
the estate which remains undivided.
18

Contrary to the assertion of petitioners, therefore, the conveyances made by the


children of Isabel Cuntapay by her first marriage to respondent are valid insofar as
their pro indiviso shares are concerned. Moreover, the CA justifiably held that these
conveyances, as evidenced by the deed of donation and deed of sale presented by
respondent, coupled with the fact that she has been in possession of the subject lot
since 1955, establish that respondent has a better right to possess the same as
against petitioners whose claim is largely based on Isabel Cuntapays last will and
testament which, to date, has not been probated; hence, has no force and effect and
under which no right can be claimed by petitioners. Significantly, the probative
value of the other evidence relied upon by petitioners to support their claim, which
was the affidavit of Heliodoro Turingan, was not passed upon by the MTCC and the
RTC. Their respective decisions did not even mention the same.
In conclusion, it is well to stress the CAs admonition that
x x x our ruling on the issue of physical possession does not affect title to the property nor
constitute a binding and conclusive adjudication on the merits on the issue of ownership.
The parties are not precluded from filing the appropriate action directly contesting the
ownership of or the title to the property.
19

Likewise, it is therefore in this context that the CAs finding on the validity of Isabel
Cuntapays last will and testament must be considered. Such is merely a provisional
ruling thereon for the sole purpose of determining who is entitled to possession de
facto.

WHEREFORE, premises considered, the petition is DENIED. The assailed


Decision dated February 16, 2005 and the Resolution dated May 17, 2005 of the
Court of Appeals in CAG.R. SP No. 80032 are AFFIRMED.
SO ORDERED.
Panganiban (C.J.,
Martinez and Chico-Nazario, JJ., concur.

Chairperson), Ynares-Santiago,Austria-

Petition denied, assailed decision and resolution affirmed.


Notes.Until admitted to probate, a will has no effect and no right can be
claimed thereunder. (Arbolario vs. Court of Appeals, 401 SCRA 360 [2003])
The only issue for resolution in an unlawful detainer case is physical or material
possession of the property involved independent of a claim of ownership by any of
the party litigants. (Balanon-Anicete vs. Balanon, 402 SCRA 514 [2003])
o0o

No. L-23079. February 27, 1970.


RUBEN AUSTRIA,CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA Mozo,
petitioners, vs. HON.ANDRES REYES, Judge, Court of First Instance of Rizal,
PERFECTO CRUZ,BENITA CRUZ-MENEZ ISAGANI CRUZ,ALBERTO CRUZ and
Luz CRUZ-SALONGArespondents.
Civil law; Succession; Testamentary succession; Institution of heir; Requisites for
annulment of institution of heir for statement of a false cause.Before the institution of
heirs may be annulled under Article 850 of the Civil Code, the following requisites must
concur: First, the cause for the institution of heirs must be stated in the will; second, the
cause must be shown to be false; and third,it must appear from the face of the will that the
testator would not have made such institution if he had known the falsity of the cause.
Same; Same; Same; Same; Same; Where will does not state cause for institution of heir.
Where the decedents will does not state in a specific or unequivocal manner the cause for
such institution of heirs, the will cannot be annulled under Article 850 of the Civil Code.
Such institution may be annulled only when it is clear, after an examination of the will that
the testator clearly would not have made the institution if he had known the cause for it to
be false.
Same; Same; Same; Interpretation of will; Testacy favored.Testacy is favored and
doubts are resolved on its side, especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate, as was done in this case. Moreover, so
compelling is the principle that intestacy should be avoided and the wishes of the testator
allowed to prevail, that we could even vary the language of the will for the purpose of giving
it effect.
Remedial law; Courts; Inherent powers; Power to amend and control processes.Every
court has the inherent power to amend and control its processes and orders so as to make
them conformable to law and justice. In this case, the lower court had power to reverse its
order of December 22, 1959 because the subsequent orders complained of served merely to
clarify the firstan act which the court could legally do.
Same; Civil procedure; Intervention; Power of court to limit extent of intervention.The
court has the power to limit the extent of a partys intervention in a probate case within its
powers as articulated by the Rules of Court.

PETITION for certiorari to annul the orders of the Court of First Instance of Rizal.
The facts are stated in the opinion of the Court.
Salonga, Ordonez, Yap, Sicat & Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos & De los Santos for respondent Perfecto Cruz.
Villareal, Almacen, Navarra & Amores for other respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance
of Rizal (Special Proceedings 2457) a petition for probate, aatte mortem, of her last
will and testament The probate was opposed by the present petitioners Ruben
Austria, Consuelo AustriarBenta and Lauro Austria Mozo, and still others who, like
the petitioner, are nephews and nieces of Basilia. This opposition was, however,
dismissed and the probate of the will allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass
on to the respondents Perfecto Cruz, Benita Cruz-Mefiez, Isagani Cruz, Alberto
Cruz, and Luz Cruz-Salonga, all of whom had been assumed and declared by Basilia
as her own legally adopted children.
On April 28, 1959, more than two years after her will was allowed to probate,
Basilia died. The respondent Perfecto Cruz was appointed executor without bond by
the same court in accordance with the provisions of the decedents will,
notwithstanding the blocking attempt pursued by the petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the same proceedings
a petition in intervention for partition alleging in substance that they are the
nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al,, had not
in fact been adopted by the decedent in accordance with law, in effect rendering
these respondents mere strangers to the decedent and without any right to 3ucceed
as heirs.

Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the


estate, the court a quo allowed the petitioners intervention by its order of December
22, 1959, couched in broad terms, as follows: The Petition in Intervention for
Partition filed by the above-named oppositors [Ruben Austria, et al.,] dated
November 5, 1959 is hereby granted.
In the meantime, the contending sideg debated the matter of authenticity or lack
of it of the several adoption papers produced and presented by the respondents. On
motion of the petitioners Ruben Austria, et al, these documents were referred to the
National Bureau of Investigation for examination and advice. N.B.L report seems to
bear out the genuineness of the documents, but the petitioners, evidently
dissatisfied with the results, managed to obtain a preliminary opinion from a
Constabulary questioned-document examiner whose views undermine the
authenticity of the said documents. The petitioners Ruben Austria, et al, thus
moved the lower court to refer the adoption papers to the Philippine Constabulary
for further study. The petitioners likewise located former personnel of the court
which appeared to have granted the questioned adoption, and obtained written
depositions from two of them denying any knowledge of the pertinent adoption
proceedings.
On February 6, 1963, more than three yars after they were allowed to intervene,
the petitioners Ruben Austria, et al., moved the lower court to set for hearing the
matter of the genuineness of the adoption of the respondents Perfecto Cruz, et al.,
by the late Basilia. Before the date set by the court for hearing arrived, however, the
respondent Benita Cruz-Menez, who entered an appearance separately from that of
her brother Perfecto Cruz, filed on February 28, 1963 a motion asking the lower
court, by way of alternative relief, to confine the petitioners intervention, should it
be permitted, to properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benitas motion. Both
sides subsequently submitted their respective memoranda, and finally, the lower
court issued an order on June 4, 1963, delimiting the petitioners' intervention to the
properties of the deceased which were not disposed of in the will.
The petitioners moved the lower court to reconsider this latest order, eliciting
thereby an opposition from the respondents. On October 25, 1863 the same court
denied the petitioners motion for reconsideration.

A second motion for reconsideration which set off a long exchange of memoranda
from both sides, was summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the orders of June 4
and October 25, 1963 and the order of April 21, 1964, all restricting petitioners'
intervention to properties that were not included in the decedents testamentary
dispositions.
The uncontested premises are clear. Two interests are locked in dispute over the
bulk of the estate of the deceased. Arrayed on one side are the petitioners Ruben
Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of
nephews and nieces who are con-cededly the nearest surviving blood relatives of the
de-cedent. On the other side are the respondents brothers and sisters, Perfecto
Cruz, Benita Cruz-Menez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of
whom heirs in the will of the deceased Basilia, and all of whom claim kinship with
the decedent by virtue of legal adoption. At the heart of the controversy is Basilias
last willimmaculate in its extrinsic validity since It bears the imprimatur of duly
conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of the
tie which the respondent Perfecto Cruz and his brothers and sisters claim to have
with the decedent. The lower court had, however, assumed, by its orders in question,
that the validity or invalidity of the adoption is not material nor decisive on the
efficacy of the institution of heirs; for, even if the adoption in question were spurious,
the respondents Perfecto Cruz, et al., will nevertheless succeed not as compulsory
heirs but as testamentary heirs instituted in Basilias will. This ruling apparently
finds support in article 842 of the Civil Code which reads:
One who has no compulsory heirs may dispose of by will all his estate or any part of it in
favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs.

The lower court must have assumed that since the petitioners nephews and niece
are not compulsory heirs, they do not possess that interest which can be prejudiced
by a free-wheeling testamentary disposition. The petitioners interest is confined to
properties, if any, that have not been disposed of in the will, for to that extent

intestate succession can take place and the question of the veracity of the adoption
acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire
estate should descend to them by intestacy by reason of the intrinsic nullity of the
institution of heirs embodied in the decedents will. They have thus raised squarely
the issue of whether or not such institution of heirs would retain efficacy in the
event there exists proof that the adoptionof the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which
reads:
The statement of a false cause for the institution of an heir shall be considered as not
written, unless it appears from the will that the testatpr would not have made such
institution if he had known the falsity of such cause.

Coming closer to the center of the controversy, the petitioners have calted the
attention of the lower court and this Court to the following pertinent portions of the
will of the deceased which recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na
mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita at
Isagani, na pawang may apeiyidong Cruz.
x

V
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamaraana ang aking mga ariariang maiiwan, sa kaparaanang sumusunod:
A.Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto,
Luz, Benita at Isagani, na pawang may apeiyidong Cruz, na parepareho ang kaparti ng
bawat isa at walang lamangan (en partes iguales), bilang kanilang sapilitang mana
(legiti[ma]), ang kalahati (1/2) ng aking kaparti sa lahat ng aming ari-ariang gananciales
ng aking yumaong asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ngtestamentong
ito, ang kalahati (1/2) ng mga lagay na lupa at palaisdaan na nasa Obando at Polo,

Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria, at ang kalahati (1/2)
ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana sa yumao kong
kapatid na si Fausto Austria.

The tenor of the language used, the petitioners argue, gives rise to the inference
that the late Basilia was deceived into believing that she was legally bound to
bequeath one-half of her entire estate to the respondents Perfecto Cruz, et ah as the
latters legitime. The petitioners further contend that had the deceased known the
adoption to be spurious, she would not have instituted the respondents at allthe
basis of the institution being solely her belief that they were compulsory heirs. Proof
therefore of the falsity of the adoption would cause a nullity of the institution of
heirs and the opening of the estate wide to intestacy. Did the lower court then abuse
its discretion or act in violation of the rights of the parties in barring the petitioners
nephews and niece from registering their claim even to properties adjudicated by
the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil
Code, the following requisites must concur: First, the cause for the institution of
heirs must be stated in the will; second, the cause must be shown to be false;
and third, it must appear from the face of the will th&t the testator would not have
made such institution if he had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, sapilitang
tagapagmana (compulsory heirs) andsapilitang mana (legitime), that the
impelling reason or cause for the institution of the respondents was the testatrixs
belief that under the law she could not do otherwise. If this were indeed what
prompted the testatrix in instituting the respondents, she did not make it known in
her will. Surely if she was aware that succession to the legitime takes place by
operation of law, independent of her own wishes, she would not have found it
convenient to name her supposed compulsory heirs to their legitimes. Her express
adoption of the rules on legitimes should very well indicate her complete agreement
with that statutory scheme. But even this, like the petitioners own proposition, is
highly speculative of what was in the mind of the testatrix when she executed her
will.

One fact prevails, however, and it is that the decedents will does not state in a
specific or unequivocal manner the cause for such institution of heirs. We cannot
annul the same on the basis of guesswork or uncertain implications.
And even if we should accept the petitioners theory that the decedent instituted
the respondents Perfecto Cruz, et al. solely because sbe believed that the law
commanded her to do so, on the false assumption that her adoption of these
respondents was valid, still such insititution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore
whatever false cause the testator may have written in his will for the institution of
heirs. Such institution may be annulled only when one is satisfied, after an
examination of the will, that the tesitator clearly would not have made the
institution if be had known the cause for it to be false. Now, would the late Basilia
have caused the revocation of the institution of heirs if she had known that she was
mistaken in treating ttiese heirs as her legally adopted children? Or would she have
instituted them nonetheless?
The decedents will, which alone should provide the an&wer, is mute on this point
or at best is vague and uncertain. The phrases, mga sapilitang
tagapagmanaand sapilitang mana were borrowed from the language of the law on
succession and were used, respectively, to describe the class of heirs instituted and
the abstract object of the inheritance. They offer no absolute indication that the
decedent would have willed her estate other than the way she did if she had known
that she was not bound by law to make allowance for legitimes. Her disposition of
the free portion of her estate (libre disposition) which largely favored the respondent
Perfecto Cruz, the latters children, and the children of the respondent Benita Cruz,
shows a perceptible inclination on her part to give to the respondents more than
what she thought the law enjoined her to give to them. Compare this with the
relatively small devise of land which the decedent had left for her blood relatives,
including the petitioners Consuelo Austria-Benta and Lauro Mozo and the children
of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz,
et al. from the inheritance, then the petitioners and the other nephews and nieces
would succeed to the bulk of the estate by intestacya result which would subvert
the clear wishes of the decedent.

Whatever doubts one entertains in his mind should be swept away by these
explicit injunctions in the Civil Code: The words of a will are to receive an
interpretation which will give to every expression some effect, rather than one
which will render any of the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will prevent intestacy.
1

Testacy is favored and doubts are resolved on its side, especially where the will
evinces an intention on the part of the testator to dispose of practically his whole
estate, as was done in thia case. Moreover, so compelling is the principle that
intestacy should be avoided and the wishes of the testator allowed to prevail, that
we could even vary the language of tihe will for the purpose of giving it effect A
probate court has found, by final judgment, that the late Basilia Austria Vda. de
Cruz was possessed of testamentary capacity and her last will executed free from
falsification, fraud, trickery or undue influence. In this situation, it becomes our
duty to give full expression to her will.
2

At all events, the legality of the adoption of ihe respondents by the testatrix can
be assailed only in a separate action brought for that purpose, and cannot be the
subject of a collateral attack.
5

To the petitioners charge that the lower court had no power to reverse its order of
December 22, 1959, suffice it to state that, as borne by the records, the subsequent
orders complained of served merely to clarify the firstan act which the court could
legally do. Every court has the inherent power to amend and control its processes
and orders so as to make them conformable to law and justice. That the court a
quo has limited the extent of the petitioners intervention is also within its powers
as articulated by the Rules of Court.
6

ACCORDINGLY, the present petition is denied, at petitioners cost.


Concepcion,
C.J., Reyes,
J.B.L., Dizon, Makalintal,Zaldivar, Fernando, Teehankee, Barredo and Villamor,
JJ.,concur.
Petition denied.
Notes.(a) Forced Heirs and their legitime.UnderArt. 808 of the old Civil Code, 2/3 of the property of a decedent constitutes the
legitime of his. legitimate heirs and descendants; one half of this 2/3 (or 1/3 of the entire estate) is disposable among the heirs and legitimate

descendants of the decedent according to his will; and the remaining 1/3 is available for free disposition by will to whomsoever the decedent
may see fit to direct its disposition, without exception. (Osorio vs. Osorio, L-1965, Dec. 29, 1949).
(b) Rights of action.One who is not a forced heir of a decedent, but merely a collateral heir, has no standing whatsoever to attack a purported
sale of land by the decedent in her lifetime on the ground that it was without consideration and in fraud of his Tights, and even forced heir has
no standing to attack such a transfer on the ground that it was made with intent to defraud creditors of his ancestor (Concepcion vs. Sta. Ana, L2277, Dec. 29, 1950).

No. L-17818. January 25, 1967.


TIRSO T. REYES, as guardian of the minors Azucena, Flordelis and Tirso, Jr., all
surnamed Reyes y Barretto, plaintiffs-appellants, vs. LUCIA MILAGROS
BARRETTODATU, defendant-appellee.
Succession; Partition, wherein an instituted heir. who was later found not to be the
decedents child, was included, is valid.Article 1081 of the Old Civil Code, which provides
that a partition made with the inclusion of a person believed to be an heir, but who is not,
shall be void, does not apply to a case where the partition was made between two persons
instituted as heirs in a will but it was found out later that one of them was not the
testators child. The reason is obvious. The heir, who was not the testators child, was
admittedly instituted as an heir in the will, and was not merely a person who was
erroneously believed to be an heir (See Reyes vs. Datu, 94 Phil. 446; Reyes vs. Barretto, 98
Phil. 996). Article 1081 does not speak of children or descendants but of heirs (without
distinction between forced, voluntary or intestate ones), and the fact that the person in
question was not the testators daughter does not preclude her from being one of the heirs
expressly named in the testament, for the testator was at liberty to assign the f ree portion
of his estate to whomsover he chose. The fact that the one-half share assigned to the said
person encroached upon the legitime of the other instituted heir, who was a real daughter of
the testator, did not preclude that person from becoming a testamentary heir of the
decedent.
Same; Diminution of legitime of forced heir does not constitute preterition.Where the
testator allotted in his will to his legitimate daughter a share less than her legitime, such
circumstance would not invalidate the institution of a stranger as an heir, since there was
no preterition or total omission of a forced heir. The ruling in Neri vs. Akutin, 72 Phil. 322
is not applicable to the case.
Same; Partition not amounting to a compromise on civil status.Where a partition was
made between two persons instituted as heirs in the will, and one of them was found out
later not to be the testators daughter, while the other was really his daughter, it cannot be
said that the partition was a void compromise on the civil status of the person who was not
the testators daughter. At the time of the partition, the civil status of that person was not

being questioned. There can be no compromise on a matter that was not in issue, While the
law outlaws a compromise over civil status, it does not forbid a settlement by the parties
regarding the share that should correspond to the claimant to the hereditary estate.
Same; When partition decreed by the court is res judicata.A project of partition is
merely a proposal for the distribution of the hereditary estate which the court may accept or
reject. It is the court alone that makes the distribution of the estate and determines the
persons entitled thereto (Camia de Reyes vs. Reyes de Ilano, 63 Phil. 629; Sec. 750, Act 190;
Rule 90, Old Rules of Court; Rule 91, Revised Rules of Court). It is that final judicial decree
of distribution that vests title in the distributees. If the decree was erroneous, it should
have been corrected by opportune appeal; but once it had become final, its binding effect is
like that of any other judgment in rem, unless properly set aside for lack of jurisdiction or
fraud. Where the court has validly issued a decree of distribution and the same has become
final, the validity or invalidity of the project of partition becomes irrelevant.
Same; When consummated partition cannot be set aside.A partition agreement that
was ratified by the courts decree of distribution and was actually consummated by delivery
of the shares to the distributees cannot be set aside after a long lapse of time. The rule in
Saminiada vs. Mata, 92 Phil. 426 does not apply to that case.
Same; Distribution according to the will should be respected;The minority of the
distributee does not affect courts jurisdiction.A distribution in the decedents will, made
according to his will, should be respected. The fact that one of the distributees was a minor
at the time the court issued the decree of distribution does not imply that the court had no
jurisdiction to enter the decree of distribution. The proceeding for the settlement of a
decedents estate is a proceeding in rem (Ramos vs. Ortuzar, 89 Phil. 741). It is binding on
the distributee who was represented by her mother as guardian.
Same; Relief on the ground of fraud.Where in a partition between two instituted
heirs, one of them did not know that she was not really the child of the testator, it cannot be
said that she def rauded the other heir who was the testators daughter. At any rate, relief
on the ground of fraud must be obtained within four years from its discovery. Where the
person allegedly defrauded was only sixteen years old in 1939, when the fraud was allegedly
perpetrated, and she became of age in 1944, and became aware of the fraud in 1946, her
action in 1956 to set aside the partition was clearly barred.
Guardianship; Guardian cannot waive rights of the ward.An abdicative waiver of
rights by a guardian is an act of disposition. It cannot bind his ward, being null and void as
to the ward unless duly authorized by the proper court (Ledesma Hermanos vs. Castro, 55
Phil. 136, 142).

APPEAL from a judgment of the Court of First Instance of Bulacan.


The facts are stated in the opinion of the Court.
Recto Law Offices for plaintiff-appellant.
Deogracias T. Reyes and Associates for defendantappellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil
Case No. 1084, dismissing the complaint of appellant Tirso T. Reyes and ordering
the same to deliver to the defendant-appellee, Lucia Milagros Barretto-Datu, the
properties received by his deceased wife under the terms of the will of the late
Bibiano Barretto, consisting of lots in Manila, Rizal, Pampanga and Bulacan, valued
at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
This is an action to recover one-half share in the fishpond, located in the barrio of San
Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734 of the Land
Records of this Province, being the share of plaintiffs wards as minor heirs of the deceased
Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said minors.
It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime
they acquired a vast estate, consisting of real properties in Manila, Pampanga, and
Bulacan, covered by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046,
27285, 6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his
share of these properties in a will to Salud Barretto, mother of plaintiffs wards, and Lucia
Milagros Barretto and a small portion as legacies to his two sisters Rosa Barretto and
Felisa Barretto and his nephew and nieces. The usufruct of the fishpond situated in barrio
San Roque, Hagohoy, Bulacan, above-mentioned, however, was reserved for his widow,
Maria Gerardo. In the meantime, Maria Gerardo was appointed administratrix, By virtue
thereof, she prepared a project of partition, which was signed by her in her own behalf and
as guardian of the minor Milagros Barretto. Said project of partition was approved by the
Court of First Instance of Manila on November 22, 1939. The distribution of the estate and
the delivery of the shares of the heirs followed forthwith. As a consequence, Salud Barretto

took immediate possession of her share and secured the cancellation of the original certif
ficates of title and the issuance of new titles in her own name.
Everything went well since then. Nobody was heard to complain of any irregularity in
the distribution of the said estate until the widow, Maria Gerardo died on March 5, 1948.
Upon her death, it was discovered that she had executed two wills, in the first of which, she
instituted Salud and Milagros, both surnamed Barretto, as her heirs; and, in the second,
she revoked the same and left all her properties in favor of Milagros Barretto alone. Thus,
the later will was allowed and the first rejected. In rejecting the first will presented by
Tirso Reyes, as guardian of the children of Salud Barretto, the lower court held that Salud
was not the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto. This
ruling was appealed to the Supreme Court, which affirmed the same.
1

Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate
heir of Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the
deceased Bibiano Barretto, which was given in usufruct to his widow Maria Gerardo.
Hence, this action for the recovery of onehalf portion, thereof.
This action afforded the defendant an opportunity to set up her right of ownership, not
only of the fishpond under litigation, but of all the other properties willed and delivered to
Salud Barretto, for being a spurious heir, and not entitled to any share in the estate of
Bibiano Barretto, thereby directly attacking the validity, not only of the project of partition,
but of the decision of the court based thereon as well.
The defendant contends that the Project of Partition from which Salud acquired the
fishpond in question is void ab initioand Salud Barretto did not acquire any valid title
thereto, and that the court did not acquire any jurisdiction of the person of the defendant,
who was then a minor. "

Finding for the defendant (now appellee), Milagros Barretto, the lower court
declared the project of partition submitted in the proceedings f or the settlement of
the estate of Bibiano Barretto (Civil Case No. 49629 of the Court of First Instance of
Manila) to be null and void ab initio (not merely voidable) because the distributee,
Salud Barretto, predecessor of plaintiffs (now appellants), was not a daughter of the
spouses Bibiano Barretto and Maria Gerardo. The nullity of the project of partition
was decreed on the basis of Article 1081 of the Civil Code of 1889 (then in force)
providing as follows:
A partition in which a person was believed to be an heir, without being so, has been
included, shall be null and void.

The court a quo further rejected the contention advanced by plaintiffs that since
Bibiano Barretto was free to dispose of one-third (1/3) of his estate under the old
Civil Code, his will was valid in favor of Salud Barretto (nee Lim Boco) to the extent,
at least, of such free part. And it concluded that, as defendant Milagros was the only
true heir of Bibiano Barretto, she was entitled to recover from Salud, and from the
latters children and successors, all the properties received by her from Bibianos
estate, in view of the provisions of Article 1456 of the new Civil Code of the
Philippines establishing that property acquired by fraud or mistake is held by its
acquirer in implied trust for the real owner. Hence, as stated at the beginning of this
opinion, the Court a quo not only dismissed the plaintiffs complaint but ordered
them to return the properties received under the project of partition previously
mentioned as prayed for in defendant Milagros Barrettos counterclaim. However, it
denied defendants prayer for damages. Hence, this appeal interposed by both
plaintiffs and defendant Plaintiffs-appellants correctly point out that Article 1081 of
the old Civil Code has been misapplied to the present case by the court below. The
reason is obvious: Salud Barretto admittedly had been instituted heir in the late
Bibiano Barrettos last will and testament together with defendant Milagros; hence,
the partition had between them could not be one such had with a party who was
believed to be an heir without really being one, and was not null and void under said
article. The legal precept (Article 1081) does not speak of children, or descendants,
but of heirs (without distinction between forced, voluntary or intestate ones), and
the fact that Salud happened not to be a daughter of the testator does not preclude
her being one of the heirs expressly named in his testament; for Bibiano Barretto
was at liberty to assign the free portion of his estate to whomsoever he chose. While
the share (1/2) assigned to Salud impinged on the legitime of Milagros, Salud did
not for that reason cease to be a testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her fathers will a share smaller
than her legitime invalidate the institution of Salud as heir, since there was here no
preterition, or total omission, of a forced heir. For this reason, Neri vs. Akutin, 72
Phil. 322, invoked by appellee, is not at all applicable, that case involving an
instance of preterition or omission of children of the testators former marriage.
Appellee contends that the partition in question was void as a compromise on the
civil status of Salud in violation of Article 1814 of the old Civil Code. This view is
erroneous, since a compromise presupposes the settlement of a controversy through
mutual concessions of the parties (Civil Code of 1889, Article 1809; Civil Code of the

Philippines, Art. 2028); and the condition of Salud as daughter of the testator
Bibiano Barretto, while untrue, was at no time disputed during the settlement 01
the estate of the testator. There can be no compromise over issues not in dispute.
And while a compromise over civil status is prohibited, the law nowhere forbids a
settlement by the parties over the share that should correspond to a claimant to the
estate.
At any rate, independently of a project of partition which, as its own name implies,
is merely a proposal for distribution of the estate, that the court may accept or
reject, it is the court alone that makes the distribution of the estate and determines
the persons entitled thereto and the parts to which each is entitled (Camia vs.
Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of 1940; Rule 91,
Revised Rules of Court), and it is that judicial decree of distribution, once final, that
vests title in the distributees. If the decree was erroneous or not in conformity with
law or the testament, the same should have been corrected by opportune appeal; but
once it had become final, its binding effect is like that of any other judgment in
rem, unless properly set aside for lack of jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of distribution
of the estate, and the same has become final, the validity or invalidity of the project
of partition becomes irrelevant.
It is, however, argued for the appellee that since the courts distribution of the
estate of the late Bibiano Barretto was predicated on the project of partition
executed by Salud Barretto and the widow, Maria Gerardo (who signed for herself
and as guardian of the minor Milagros Barretto), and since no evidence was taken of
the filiation of the heirs, nor were any findings of fact or law made, the decree of
distribution can have no greater validity than that of the basic partition, and must
stand or fall with it, being in the nature of a judgment by consent, based on a
compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked in support of the
proposition, That case is authority for the proposition that a judgment by
compromise may be set aside on the ground of mistake or fraud, upon petition
filedin due time, where petition for relief was filed before the compromise
agreement, a proceeding, was consummated(cas. cit. at p. 436). In the case before
us, however, the agreement of partition was not only ratified by the courts decree of
distribution, but actually consummated, so much so that the titles in the name of

the deceased were cancelled, and new certificates issued in favor of the heirs, long
before the decree was attacked. Hence, Saminiada vs. Mata does not apply.
Moreover, the defendant-appellees argument would be plausible if it were shown
that the sole basis for the decree of distribution was the project of partition. But, in
fact, even without it, the distribution could stand, since it was in conformity with
the probated will of Bibiano Barretto, against the provisions whereof no objection
had been made. In fact, it was the courts duty to do so. Act 190, section 640, in force
in 1939, provided:
SEC. 640. Estate, How Administered.When a will is thus allowed, the court shall grant
letters testamentary, or letters of administration with the will annexed, and such letters
testamentary or of administration, shall extend to all the estate of the testator in the
Philippine Islands. Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such will may operate
upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates
in these Islands belonging to persons who are inhabitants of another state or country.
(Italics supplied)

That defendant Milagros Barretto was a minor at the time the probate court
distributed the estate of her father in 1939 does not imply that the said court was
without jurisdiction to enter the decree of distribution. Passing upon a like issue,
this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741 and 742:
If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they
would be concluded by the result of the proceedings, not only as to their civil status but as
the distribution of the estate as well. As this Court has held inManolo vs. Paredes, 47 Phil.
938, The proceeding for probate is one in rem (40 Cyc., 1265) and the court acquires
jurisdiction over all persons interested, through the publication of He notice prescribed by
section 630 C.P.C.; and any order that may be entered therein is binding against all of
them. (See also in reEstate of Johnson, 39 Phil. 156.) A final order of distribution of the
estate of a deceased person vests the title to the land of the estate in the distributees.
(Santos vs. Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why,
by analogy, these salutary doctrines should not apply to intestate proceedings.
The only instance that we can think of in which a party interested
proceeding may have a final liquidation set aside is when he is left out
circumstances beyond his control or through mistake or inadvertence not
negligence. Even then, the better practice to secure relief is reopening of the

in a probate
by reason of
imputable to
same case by

proper motion within the reglementary period, instead of an independent action the effect of
which, if successful, would be, as in the instant case, for another court or judge to throw out
a decision or order already final and executed and reshuffle properties long ago distributed
and disposed of.

It is well to observe, at this juncture, as this Court expressly declared in Reyes vs.
Barretto Datu, 94 Phil. 446(Amd Rec. Appeal, pp. 158, 157), that:
x x x lt is argued that Lucia Milagros Barretto was a minor when she signed the partition,
and that Maria Gerardo was not her judicially appointed guardian. The claim is not true.
Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.)
The mere statement in the project of partition that the guardianship proceedings of the
minor Lucia Milagros Barretto are pending in the court, does not mean that the guardian
had not yet been appointed; it meant that the guardianship proceedings had not yet been
terminated, and as a guardianship proceedings begin with the appointment of a guardian,
Maria Gerardo must have been already appointed when she signed the project of partition.
There is, therefore, no irregularity or defect or error in the project of partition, apparent on
the record of the testate proceedings, which shows that Maria Gerardo had no power or
authority to sign the project of partition as guardian of the minor Lucia Milagros Barretto,
and, consequently, no ground for the contention that the order approving the project of
partition is absolutely null and void and may be attacked collaterally in these proceedings.

So that it is now incontestable that appellee Milagros Barretto was not only made a
party by publication but actually appeared and participated in the proceedings
through her guardian: she, therefore, can not escape the jurisdiction of the Manila
Court of First Instance which settled her fathers estate.
Defendant-appellee further pleads that as her mother and guardian (Maria
Gerardo) could not have ignored that the distributee Salud was not her child, the act
of said widow in agreeing to the oft-cited partition and distribution was a fraud on
appellees rights and entitles her to relief. In the first place, there is no evidence
that when the estate of Bibiano Barretto was judicially settled and distributed
appellants predecessor, Salud Lim Boco Barretto, knew that she was not Bibianos
child: so that if fraud was committed, it was the widow, Maria Gerardo, who was
solely responsible, and neither Salud nor her minor children, appellants herein, can
be held liable therefor. In the second place, granting that there was such fraud,
relief therefrom can only be obtained within 4 years from its discovery, and the
record shows that this period had elapsed long ago.

Because at the time of the distribution Milagros Barretto was only 16 years old
(Exhibit 24), she became of age five years later, in 1944. On that year, her cause of
action accrued to contest on the ground of fraud the court decree distributing her
fathers estate and the four-year period of limitation started to run, to expire in
1948 (Section 43, Act. 190). In fact, conceding that Milagros only became aware of
the true facts in 1946 (Appellees Brief, p. 27), her action still became extinct in
1950. Clearly, therefore, the action was already barred when in August 31, 1958 she
filed her counterclaim in this case contesting the decree of distribution of Bibiano
Barrettos estate.
In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant Tirso
Reyes had induced her to delay filing action by verbally promising to reconvey the properties received by his
deceased wife, Salud. There is no reliable evidence of the alleged promise, which rests exclusively on the oral
assertions of Milagros herself and her counsel. In, fact, the trial court made no mention of such promise in the
decision under appeal. Even more: granting arguendo that the promise was made, the same can not bind the
wards, the minor children of Salud, who are the real parties in interest. An abdicative waiver of rights by a
guardian, being an act of disposition, and not of administration, can not bind his wards, being null and void as
to them unless duly authorized by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).
In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings for
the settlement of the estate of Bibiano Barretto duly approved by the Court of First Instance of Manila in 1939,
in its Civil Case No. 49629, is not void for being contrary to either Article 1081 or 1814 of the Civil Code of 1889;
(2) that Milagros Barrettos action to contest said partition and decree of distribution is barred by the statute of
limitations; and (3) that her claim that plaintiff-appellant guardian is a possessor in bad faith and should
account for the fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is legally
untenable. It follows that the plaintiffs action for partition of the fishpond described in the -complaint should
have been given due course.
Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed and set aside
in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto-Datu the properties
enumeracted in said decision, and the same is affirmed in so far as it denies any right of said appellee to
accounting. Let the records be returned to the court of origin, with instructions to proceed with the action for
partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T13734 of the Office of the Register of
Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in the complaint. No costs.
Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.
Judgment reversed in part and affirmed in part.

No. L-24365. June 30, 1966.


IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E.
CHRISTENSEN, deceased. ADOLFO C. AZNAR, executor and appellee, vs. MARIA
LUCY CHRISTENSEN DUNCAN, oppositor and appellant. MARIA HELEN
CHRISTENSEN, oppositor and appellee.
Wills; Succession; Rights of compulsory heir; Preterition defined.Preterition is the
omission of the heir in the will, either by not naming him at all or, while mentioning him as
father, son, etc., by not instituting him as heir without disinheriting him expressly, nor
assigning to him some part of the testators estate. Whether the testator gave a legacy to a
person, whom he characterized in the testamentary provision as not related to him, but
later this person was judicially declared to be his acknowledged natural child, the case is
not a case of preterition but a case of completion of legitime. The institution in the will
would not be annulled. There would be no intestacy.
Same; Right of compulsory heir, to whom testator left property less than his legitime to
completion of legitime even if he is not referred to in will as heir.In order that the right of a
forced heir may be limited to the completion of his legitime (instead of the annulment of the
institution of heirs) it is not necessary that what has been left to him in the will by any
title, as by legacy, be granted to him in his capacity as heir. As successional rights are
vested as of the moment of death, the forced heir is entitled to the fruits and increments of
his legitime from the testators death.
Appeals; Substitution of heirs is not an issue where substitute heirs are not parties to
the case.The reference to and discussion of the rights of the substitute heirs in appellants
brief appears to be merely for the purpose of refuting the theory advanced by appellees and
not f or the purpose of having the rights of said heirs defined insofar as, under the terms of
the will, they may affect the legitime of the oppositor-appellant. This point of course was not
and could hardly have been squarely raised as an issue inasmuch as the substitute heirs are
not parties in this case.
Same; No substitution on legitime.The legitime must descend to the forced heir in fee
simple, since the testator cannot impose on it any burden, encumbrance, condition or
substitution (Arts, 864. 872 and 904. New Civil Code).

APPEAL from an order of the Court of First Instance of Davao. Cusi, Jr., J.
The facts are stated in the opinion of the Court.

J; Salonga and L.M. Abellera for oppositor and appellee.


Carlos Dominguez, Jr. for executor-appellee.
M.R. Sotelo for appellant.
MAKALINTAL, J.:
Edward E. Christensen, a citizen of California with domicile in the Philippines, died
leaving a will executed on March 5, 1951. The will was admitted to probate by the
Court of First Instance of Davao in its decision of February 28, 1954. In that same
decision the court declared that Maria Helen Christensen Garcia (hereinafter
referred to as Helen Garcia) was a natural child of the deceased. The declaration
was appealed to this Court, and was affirmed in its decision of February 14, 1958
(G.R. No. L-11484).
In another incident relative to the partition of the deceaseds estate, the trial
court approved the project submitted by the executor in accordance with the
provisions of the will, which said court found to be valid under the law of California.
Helen Garcia appealed from the order of approval, and this Court, on January 31,
1963, reversed the same on the ground that the validity of the provisions of the will
should be governed by Philippine law, and returned the case to the lower court with
instructions that the partition be made as provided by said law (G.R. No. L-16749).
On October 29, 1964, the Court of First Instance of Davao issued an order
approving the project of partition submitted by the executor, dated June 30, 1964,
wherein the properties of the estate were divided equally between Maria Lucy
Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and
hereinafter referred to as merely Lucy Duncan), whom the testator had expressly
recognized in his will as his daughter (natural) and Helen Garcia, who had been
judicially declared as such after his death. The said order was based on the
proposition that since Helen Garcia had been preterited in the will the institution of
Lucy Duncan as heir was annulled, and hence the properties passed to both of them
as if the deceased had died intestate, saving only the legacies left in favor of certain
other persons, which legacies have been duly approved by the lower court and
distributed to the legatees.

The case is once more before us on appeal, this time by Lucy Duncan, on the sole
question of whether the estate, after deducting the legacies, should pertain to her
and to Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as
instituted heir should be merely reduced to the extent necessary to cover the
legitime of Helen Garcia, equivalent to 1/4 of the entire estate. The will of Edward
E. Christensen contains, among others, the following clauses which are pertinent to
the issue in this case:
1. 3.I declare x x x that I have but ONE (1) child, named MARIA LUCY
CHRISTENSEN (Now Mrs. Bernard Daney), who was born in the Philippines
about twenty-eight years ago, who is now residing at No. 665 Rodger Young Village,
Los Angeles, California, U.S.A.
2. 4.I further declare that I now have no living ascendants, and no descendants except
my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.
x

1. 7.I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married
to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact
that she was baptized Christensen, is not in any way related to me, nor has she
been at any time adopted by me, and who, from all information I have now resides
in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX
HUNDRED PESOS (P3,600.00), Philippine Currency, the same to be deposited in
trust for the said Maria Helen Christensen with the Davao Branch of the Philippine
National Bank, and paid to her at the rate of One Hundred Pesos (P100.00),
Philippine Currency per month until the principal thereof as well as any interest
which may have accrued thereon, is exhausted.
x

1. 12,I hereby give, devise and bequeath, unto my wellbeloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as
aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the
income from the rest, remainder, and residue of my property and estate, real,
personal and/or mixed, of whatsoever kind or character, and wheresoever situated,
of which I may be possessed at my death and which may have come to me from any
source whatsoever, during her lifetime; Provided, however, that should the said
MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having
living issue, then and in that event, the life interest herein given shall terminate,

and if so terminated, then I give, devise, and bequeath to my daughter, the said
MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my
property with the same force and effect as if I had originally so given, devised and
bequeathed it to her; and provided, further, that should the said MARIA LUCY
CHRISTENSEN DANEY die without living issue, then, and in that event, I give,
devise and bequeath all the rest, remainder and residue of my property, one-half
(1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now residing at
No. 2124, Twentieth Street, Bakersfield California, U.S.A., and one-half (1/2) to the
children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol
F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond Christensen,
of Manhattan Beach, California, U.S.A., share and share alike, the share of any of
the three above named who may predecease me, to go in equal parts to the
descendants of the deceased; and, provided further, that should my sister Mrs.
Carol Louise C. Borton die before my own decease, then, and in that event, the
share of my estate devised to her herein I give, devise and bequeath to her children,
Elizabeth Borton de Trevio, of Mexico City Mexico; Barbara Borton Philips, of
Bakersfield, California U.S.A., and Richard Borton, of Bakersfield, California,
U.S.A., or to the heirs of any of them who may die before my own decease, share
and share alike.

The trial court ruled, and appellee now maintains, that there has been preterition of
Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the
institution of heir pursuant to Article 854 of the Civil Code, which provides:
ART 854 The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and legacies shall be valid
insofar as they are not inofficious.

On the other hand, appellant contends that this is not a case of preterition, but is
governed by Article 906 of the Civil Code, which says: Any compulsory heir to whom
the testator has left by any title less than the legitime belonging to him may
demand that the same be fully satisfied. Appellant also suggests that considering
the provisions of the will whereby the testator expressly denied his relationship
with Helen Garcia, but left to her a legacy nevertheless, although less than the
amount of her legitime, she was in effect defectively disinherited within the
meaning of Article 918, which reads:

ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of
which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall
annul the institution of heirs insofar as it may prejudice the person disinherited; but the
devises and legacies and other testamentary dispositions shall be valid to such extent as
will not impair the legitime.

Thus, according to appellant, under both Articles 906 and 918, Helen Garcia is
entitled only to her legitime, and not to a share of the estate equal that of Lucy
Duncan as if the succession were intestate.
Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article
906 of Article 815. Commenting on Article 815, Manresa explains:
Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de
memoria en el testador; en el de dejar algo al heredero forzoso, no. Este no se encuentra
privado totalmente de su legitima: ha, recibido por cualquier titulo una porcion de los bienes
hereditarios, porcion que no alcanza a completar la legitima, pero que influeye
poderosamente en el animo del legislador para decidirle a adoptar una solucion bien
diferente de la sealada para el caso de pretericion.
El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero
haciendo un calculo equivocado, ha repartido en favor de extraos o en favor de otros
legitimarios por via de legado, donacion o mejora mayor cantidad de la que la ley de
consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede
pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al
complemento de la porcion que forzosamente la corresponde.
x x x Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo
de herencia, legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de
bienes menos que la legitima o gual a la misma. Tal sentido, que es. el mas proprio en al
articulo 815, no pugna tampoco con la doctrina de la ley.Cuando en el testamento se deja
algo al heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en
el testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed.,
1951, p. 437.)

On the difference between preterition of a compulsory heir and the right to ask for
completion of his legitime, Sanchez Roman says:
La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo, pero se
presume involuntaria la omision en que consiste, en cuanto olvida o no atiende el testador

en. su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido,
prescindiendo absoluta y totalmente de el y nomencionandole en ninguna de sus
disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni por
titulo de heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle mas o
menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su
legitima, ya no seria caso depretericion, sino de complemento de aquella. El primer supuesto
o de pretericion se regula por el articulo 814, y produce accion de nulidad de la institucion
de heredero; y el segundo, o de complemento de legitima por el 815 y solo origina la
accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI, Vol. 2, p.
1131.)

Manresa defines preterition as the omission of the heir in the will, either by not
naming him at all or, while mentioning him as father, son, etc., by not instituting
him as heir without disinheriting him expressly, nor assigning to him some part of
the properties. Manresa continues:
Se necesita, pues: (a) Que la omision se refiera a un heredero forzoso; (b) Que la omision
sea completa; que el heredero forzoso nada reciba en el testamento.
xxx

xxx

B. Que la omision sea completaEsta condicion se deduce del mismo Articulo 814 y
resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el
testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido,
pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria discutirse
en el Articulo 814 si era o no necesario que se reconociese el derecho del heredero como tal
heredero, pero el a