G.R. No.

17857

June 12, 1922

In
re
will
of
Josefa
Zalamea
PEDRO
UNSON,
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.
Crispin
Oben
Pedro Guevarra and Carlos Ledesma for appellee.

for

Abella,
deceased.
petitioner-appellee,

appellants.

VILLAMOR, J.:
On July 19, 1918, Doa Josefa Zalamea y Abella, single, 60 years old, who was residing in the
municipality of Pagsanjan, Province of Laguna, executed her last will and testament with an
attached inventory of her properties, Exhibits A and A-1, in the presence of three witnesses, who
signed with her all the pages of said documents. The testatrix died on the 6th of January, 1921,
and, as the record shows, the executor appointed in the will, Pedro Unson, filed in the court of First
Instance of Laguna on the 19th of January of the same year an application for the probate of the
will and the issuance of the proper letters of administration in his favor.
To said application an opposition was presently by Antonio Abella, Ignacia Abella, Avicencia
Abella, and Santiago Vito, alleging that the supposed will of the deceased Zalamea was not
executed in conformity with the provinces of the law, inasmuch as it was not paged correlatively
in letters, nor was there any attestation clause in it, nor was it signed by the testatrix and the
witnesses in the presence of each other.
Trial having been held, the judge a quo overruled the opposition of the contestants, and ordered
the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that both documents
contained the true and last will of the deceased Josefa Zalamea.
From the judgment of the court below, the contestants have appealed, and in their brief they assign
three errors, which, in their opinion, justify the reversal of the judgment appealed from.
The first error assigned by the appellants as committed by the court below is its finding to the
effect that Exhibit A, said to be the will of the deceased Josefa Zalamea, was executed with all the
solemnities required by the law.
The arguments advanced by appellants' counsel in support of the first assignment of error tend to
impeach the credibility of the witnesses for the proponent, specially that of Eugenio Zalamea. We
have made a careful examination of the evidence, but have not found anything that would justify
us in disturbing the finding of the court a quo. The attesting witnesses, Eugenio Zalamea and
Gonzalo Abaya, clearly testify that together with the other witness to the will, Pedro de Jesus, they
did sign each and every page of the will and of the inventory in the presence of each other and of
the testatrix, as the latter did likewise sign all the pages of the will and of the inventory in their
presence.
In their brief the appellants intimate that one of the pages of the will was not signed by the testatrix,
nor by the witnesses on the day of the execution of the will, that is, on the 19th of July, 1918,
basing their contention on the testimony of Aurelio Palileo, who says that on one occasion Gonzalo
Abaya told him that one of the pages of the will had not been signed by the witnesses, nor by the
testatrix on the day of its execution. Palileo's testimony is entirely contradicted by Gonzalo Abaya
not only in the direct, but in the rebuttal, evidence as well. To our mind, Palileo's testimony cannot

prevail over that of the attesting witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants
impeach the credibility of Eugenio Zalamea, for having made a sworn declaration before the justice
of the peace of Santa Cruz, Laguna, before the trial of this case, to the effect that he was really one
of the witnesses to the will in question, which fact was corroborated by himself at the trial. The
appellants take Zalamea's testimony in connection with the dismissal of a criminal case against a
nephew of his, in whose success he was interested, and infer from this fact the partiality of his
testimony. We deem this allegation of little importance to impeach the credibility of the witness
Zalamea, especially because his testimony is corroborated by the other attesting witness. Gonzalo
Abaya, and by attorney Luis Abaya, who had prepared the testament at the instance of the testatrix.
The foregoing is sufficient for us to conclude that the first assignment of error made by the
appellants is groundless.
The appellants contend that the court below erred in admitting the will to probate notwithstanding
the omission of the proponent to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent stated to the court that they had necessarily
to omit the testimony of Pedro de Jesus, one of the persons who appear to have witnessed the
execution of the will, for there were reasonable grounds to believe that said witness was openly
hostile to the proponent, inasmuch as since the announcement of the trial of the petition for the
probate of the will, said witness has been in frequent communication with the contestants and their
attorney, and has refused to hold any conference with the attorneys for the proponent. In reply to
this, the attorney for the contestants, said to the court, "without discussing for the present whether
or not in view of those facts (the facts mentioned by the attorneys for the petitioner), in the
hypothesis that the same are proven, they are relieved from producing that witness, for while it is
a matter not decided, it is a recognized rule that the fact that a witness is hostile does not justify a
party to omit his testimony; without discussing this, I say, I move that said statement be stricken
out, and if the proponent wants these facts to stand to stand in the record, let him prove them." The
court a quo ruled, saying, "there is no need."
To this ruling of the court, the attorney for the appellants did not take any exception.
In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided by this court, in
deciding the question 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, it was said; "while it is undoubtedly true that an uncontested will may be proved by the
testimony of only one of the three attesting witnesses, nevertheless inCabang 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 in 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 t he 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 to 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 necessar to prove the
will was in issue in the lower court.

In the case at bar, we do not think this question properly to have been raised at the trial, but in the
memorandum submitted by the attorney for the appellants to the trial court, he contended that the
will could not be admitted to probate because one of the witnesses to the will was not produced,
and that the voluntary non-production of this witness raises a presumption against the pretension
of the proponent. The trial court found that the evidence introduced by the proponent, consisting
of the testimony of the two attesting witnesses and the other witness who was present at the
execution, and had charge of the preparation of the will and the inventory, Exhibits A and A-1,
was sufficient. As announced in Cabang vs. Delfinado, supra, the general rule is that, where
opposition is made to the probate of a will, the attesting witnesses must be produced. But there are
exceptions to this rule, for instance, when a witness is dead, or cannot be served with process of
the court, or his reputation for truth has been questioned or he appears hostile to the cause of the
proponent. In such cases, the will may be admitted to probate without the testimony of said witness,
if, upon the other proofs adduced in the case, the court is satisfied that the will has been duly
executed. Wherefore, we find that the non-production of the attesting witness, Pedro de Jesus, as
accounted for by the attorney for the proponent at the trial, does not render void the decree of the
court a quo, allowing the probate.
But supposing that said witness, when cited, had testified adversely to the application, this would
not by itself have change the result reached by the court a quo, for section 632 of the Code of Civil
Procedure provides that a will can be admitted to probate, notwithstanding that one or more
witnesses do not remember having attested it, provided the court is satisfied upon the evidence
adduced that the will has been executed and signed in the manner prescribed by the law.
The last error assigned by the appellants is made to consist in the probate of the inventory, Exhibit
A-1, despite the fact that this exhibit has no attestation clause in it, and its paging is made in Arabic
numerals and not in letters.
In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the bottom
of said will, the testatrix Josefa Zalamea says:
In witness whereof, I sign this will composed of ten folios including the page containing the
signatures and the attestation of the witnesses; I have likewise signed the inventory attached to this
will composed of ten folios in the presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro
de Jesus, in this municipality of Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one whereunto we have affixed our
signatures, as well as the inventory of the properties of Doa Josefa Zalamea y Abella, was read
to Doa Josefa Zalamea y Abella, and the latter affixed her name to the last, and each and every
page of this will and inventory composed of ten folios in our presence; and she declared this to be
her last will and testament and at her request we have affixed hereunto our respective signatures
in her presence and in the presence of each other as witnesses to the will and the inventory this
19th of July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.)
EUGENIO
PEDRO DE JESUS.

GONZALO

ABAYA,
ZALAMEA,

In view of the fact that the inventory is referred to in the will as an integral part of it, we find that
the foregoing attestation clause is in compliance with section 1 of Act No. 2645, which requires

this solemnity for the validity of a will, and makes unnecessary any other attestation clause at the
end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine
announced in the case of Aldaba vs. Roque (p. 378, ante), recently decided by this court. In that
case the validity of the will was assailed on the ground that its folios were paged with the letters
A, B, C, etc., instead of with the letters "one," two," "three," etc. It was held that this way of
numbering the pages of a will is in compliance with the spirit of the law, inasmuch as either one
of these methods indicates the correlation of the pages and serves to prevent the abstraction of any
of them. In the course of the decision, we said: "It might be said that the object of the law in
requiring that the paging be made in letters is to make falsification more difficult, but it should be
noted that since all the pages of the testament are signed at the margin by the testatrix and the
witnesses, the difficulty of forging the signatures in either case remains the same. In other words
the more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make
for the easiness to forge the signatures. And as in the present case there exists the guaranty of the
authenticity of the testament, consisting in the signatures on the left margins of the testament and
the paging thereof as declared in the attestation clause, the holding of this court in Abangan vs.
Abangan (40 Phil., 476), might as well be repeated:
"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 whatsoever, that adds nothing but demands more requisites entirely unnecessary,
useless, and frustrative of the testator's last will, must be disregarded."
In that case the testament was written on one page, and the attestation clause on another. Neither
one of these pages was numbered in any way, and it was held: "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."
This means that, according to the particular case, the emission of paging does not necessarily
render the testament invalid.
The law provides that the numbering of the pages should be in letters placed on the upper part of
the sheet, but if the paging should be placed in the lower part, would the testament be void for this
sole reason? We believe not. The law also provides that the testator and the witnesses must sign
the left margin of each of the sheets of the testament; but if they should sign on the right margin,
would this fact also annul the testament? Evidently not. This court has already held in Avera vs.
Garcia and Rodriguez (42 Phi., 145):
"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 execution for wills must be fully complied with. The same doctrine is also deducible from
cases heretofore decided by this court."

"Still some details at time 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 page rather than on the margin seems 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 on the right margin, provided they are on one or the other.
In Craig vs. Tatlonghari (G. R. 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."
We do not desire to intimate that the numbering in letters is a requisite of no importance. But since
its principal object is to give the correlation of the pages, we hold that his object may be attained
by writing one, two, three, etc., as well as by writing A, B, C, etc.
We see no reason why the same rule should not be applied where the paging is in Arabic numerals,
instead of in letters, as in the inventory in question. So that, adhering to the view taken by this
court in the case of Abangan vs. Abangan, and followed in Aldava vs. Roque, with regard to the
appreciation of the solemnities of a will, we find that the judgement appealed from should be, as
is hereby, affirmed with the costs against the appellants. So ordered.
Araullo, C.J., Malcolm, Avancea, Ostrand, Johns and Romualdez, JJ., concur.
August 17, 1934
G.R.
No.
In
re
estate
of
the
deceased
NICOLASA
MACAM,
vs.
JUANA GATMAITAN, oppositor-appellant.
Reyes
and
Reyes
Magno S. Gatmaitan for oppositor-appellant.

Leonarda

for

40445
Macam
y
Capili.
petitioner-appellant,

petitioner-appellant.

VILLA-REAL, J.:
This case comprises two appeals, one taken by the petitioner Nicolasa Macam and the other by the
oppositor Juana Gatmaitan, from an order of the Court of First Instance of Bulacan, the dispositive
part of which reads as follows:
In view of the neglect or abandonment by the interested parties of their claims during the
proceedings for the probate of the will, and it appearing that the was already become final and it
appearing that the order allowing the will has already become final and executory, the court is of
the opinion that it is now too late to consider the so-called codicil as well as the instrument from
which Juana Gatmaitan derives her alleged right.
Wherefore, the petition for the probate of the codicil as well as the opposition thereto filed by
Juana Gatmaitan is dismissed, without prejudice to whatever right the latter may have in an
appropriate proceeding before the committee on claims and appraisal, in accordance with law. So
ordered.

In support of her appeal, the petitioner Nicolasa Macam assigns the following alleged errors as
having been committed by the trial court in said decision, to wit:
1. The lower court erred in holding that the parties have abandoned their respective claims during
the proceedings for the probate of the will.
2. The lower court erred in declaring that it was already too late to raise the question as to the legal
efficacy of the codicil executed by the deceased.
3. The lower court erred in dismissing the petition for the probate of the codicil before any of the
parties had presented evidence pertinent to the matter.
The oppositor Juana Gatmaitan, in turn, assigns the following alleged errors as having been
committed by the court a quo in said decision, to wit:
1. The lower court erred in holding that in order for Juana Gatmaitan to preserve her rights, so far
as to oppose the probate of the codicil, it was her duty to oppose to the probate of the will; and,
having opposed the probate only of the codicil, she could no longer avail herself of the document
in her favor, so as to affect the testamentary dispositions of the deceased Leonarda Macam.
2. The lower court erred in dismissing the opposition of Juana Gatmaitan to the probate of the
alleged codicil.
The appellants assignments of error, considered together, raise the following questions of law:
1. Is the probate of a will by final judgment prior to that of a codicil thereof bar to the probate of
said codicil?
2. Does the failure to the file opposition to the probate of a will constitute a bar to the presentation
of the codicil for probate?
The following pertinent facts, which are disclosed by the pleadings, are necessary for the resolution
of the questions raised in this appeal.
On March 27, 1933, Nicolasa Macam filed in the Court of First Instance of Bulacan a petition for
the probate of the will dated July 12, 1932, and of the codicil thereof dated February 17, 1933,
executed by Leonarda Macam who died on March 18, 1933, in the municipality of Calumpit, of
said Province of Bulacan, and for her appointment as executrix without bond.
When the petition was called for hearing on April 24, 1933, in the absence of the judge, the clerk
of the Court of First Instance of Bulacan, upon instructions of said judge to proceed to take the
evidence in the absence of any opposition, took the evidence relative to the probate of the will, no
opposition to the same having been filed. Inasmuch as Juana Gatmaitan filed opposition to the
probate of the codicil, said clerk deemed himself unauthorized to take the evidence relative thereto
and refrained from so doing.
The will and the evidence for its probate having been submitted to the court the vacation Judge
Hon. M. Rosauro, on April 28, 1933, entered an order allowing said will and appointing the
petitioner Nicolasa Macam as executrix.
On July 6, 1933, after notice to the parties, the codicil was called for hearing, opposition having
been filed by Juana Gatmaitan, one of the legatees instituted in the will which had already been
allowed by final and executory judgment. After hearing counsel for the respective parties, Judge

Francisco Enage, then presiding over the Court of First Instance of Bulacan, entered the order the
dispositive part of which has been quoted at the beginning of this decision.
Section 625 of the Code of Civil Procedure provides as follows:
SEC. 625. Allowance 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.
Interpreting the above legal provisions as regards the scope of the allowance of a will, this court,
in numerous decisions, has laid down the doctrine that the probate of a will is conclusive as to its
due execution and as to the testamentary capacity of the testator, but not as to the validity of its
provisions, and in probate proceedings the courts are without jurisdiction to determine questions
concerning the validity of the provisions of the will. (Castaeda vs. Alemany, 3 Phil.,
426; Pimentel vs. Palanca, 5 Phil., 436; Limjuco vs. Ganara, 11 Phil., 393; Austria vs. Ventenilla,
21 Phil., 180; In re Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105.)
A codicil is a written instrument wherein one declares his last will, in order to take from or add
something to the will, or clarify the provisions thereof. (Spanish Cyclopedia of Law, vol. 5, page
918.)
A codicil has been defined as some addition to or qualification of one's last will and testament. (28
R. C. L., 197.)
The exercise of the right to make a will, as a voluntary act, implies the right to revoke, and article
737 of the Civil Code expressly provides that wills are essentially revocable, provided that the
partial or total revocation is made with the formalities required for making it, in accordance with
the provisions of article 738 of the same Code.
The fact that a will has been allowed without opposition and the order allowing the same has
become final and executory is not a bar to the presentation and probate of a codicil, provided it
complies with all the necessary formalities for executing a will required by section 614 of the Code
of Civil Procedure, as amended by section 1 of Act No. 1934.
It is not necessary that the will and the codicil be probated together, as the codicil may be concealed
by an interested party and it may not be discovered until after the will has already been allowed;
and they may be presented and probated one after the other (40 Cyc., 1228), since the purpose of
the probate proceedings is merely to determine whether or not the will and the codicil meet all the
statutory requirements for their extrinsic validity, leaving the validity of their provisions for further
consideration.
The appeal taken by the petitioner Nicolasa Macam is, therefore, well founded and the court a
quo erred in flatly, denying her petition for the probate of the codicil on the erroneous ground that
said codicil should have been presented at the same time as the will.
With respect to the opposition of the oppositor-appellant Juana Gatmaitan, the fact that she failed
to file opposition to the probate of the will does not prevent her from filing opposition to the
probate of the codicil thereof, inasmuch as the will may satisfy all the external requisites necessary
for its validity, but the codicil may, at the time of its execution, not be in conformity therewith. If
the testator had testamentary capacity at the time of the execution of the will, and the will was
executed in accordance with all the statutory requirements, opposition to its probate would not lie.

On the contrary, if at the time of the execution of the codicil the testator lacked some of the
subjective requisites legally capacitating him to execute the same, or all the statutory requirements
were not complied with in the execution thereof, opposition to its probate would lie.
The court a quo, therefore, erred in dismissing the opposition filed by the oppositor-appellant Juana
Gatmaitan to the probate of the codicil of the will of the deceased Leonarda Macam.
In view of the foregoing, we are of the opinion and so hold: (1) That the fact that a will has been
probated and the order allowing the same has become final and executory is not a bar to the
presentation and probate of a codicil, although its existence was known at the time of the probate
of the will; (2) that the failure of the oppositor to the probate of a codicil to file opposition to the
probate of the will, having knowledge of such proceedings, does not constitute an abandonment of
a right, nor does it deprive her of the right to oppose the probate of said codicil.
Wherefore, the order appealed from is reversed and it is ordered that the petition for the probate of
the codicil filed by the petitioner Nicolasa Macam, as well as the opposition to said probate filed
by the oppositor Juana Gatmaitan, be reinstated, without special pronouncement as to costs. So
ordered.
Malcolm, Imperial, Butte and Goddard, JJ., concur.
G.R. No. L-2538

September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO,
petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro
M.
Recto
and
Delgado & Flores for appellee.

Serafin

C.

Dizon

for

appellants.

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 later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a
petition, which was docketed as special proceeding No. 8022 seeking the probate of the will
executed by the deceased on June 20, 1939. There being no opposition, the will was probated.
However, upon petition filed by the herein oppositors, the order of the court admitting the will to
probate was set aside and the case was reopened. After hearing, at which both parties presented
their evidence, the court rendered decision denying the probate of said will on the ground that the
petitioner failed to prove that the same was executed in accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24,
1944, filed another petition for the probate of the will executed by the deceased on August 17,
1918, which was docketed as special proceeding No. 56, in the same court. Again, the same
oppositors filed an opposition to the petition based on three grounds: (1) that petitioner is now
estopped from seeking the probate of the will of 1918; (2) that said will has not been executed in
the manner required by law and (3) that the will has been subsequently revoked. But before the
second petition could be heard, the battle for liberation came and the records of the case were
destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be
impossible because neither petitioner nor oppositors could produce the copies required for its
reconstitution. As a result, petitioner filed a new petition on September 14, 1946, similar to the
one destroyed, to which the oppositors filed an opposition based on the same grounds as those
contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the
court issued an order admitting the will to probate already stated in the early part of this decision.
From this order the oppositors appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to
enable her to obtain the probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate
of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to court with "unclean
hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked
by Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the
decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate court erred in not
holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June
20, 1939, in order to enable her to obtain the probate of the will executed by the deceased on
August 17, 1918, pointing out certain facts and circumstances with their opinion indicate that
petitioner connived with the witness Canuto Perez in an effort to defeat and frustrate the probate
of the 1939 will because of her knowledge that said will intrinsically defective in that "the one and
only testamentory disposition thereof was a "disposicion captatoria". These circumstances, counsel
for the appellants contend, constitute a series of steps deliberately taken by petitioner with a view
to insuring the realization of her plan of securing the probate of the 1918 will which she believed
would better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with special
proceedings No. 8022, now closed and terminated, are vigorously met by counsel for petitioner
who contends that to raise them in these proceedings which are entirely new and distinct and
completely independent from the other is improper and unfair as they find no support whatsoever
in any evidence submitted by the parties in this case. They are merely based on the presumptions

and conjectures not supported by any proof. For this reason, counsel, contends, the lower court
was justified in disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this contention. There
is indeed no evidence which may justify the insinuation that petitioner had deliberately intended
to frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another
will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez
that he went out of the room to answer an urgent call of nature when Artemio Reyes was signing
the will and the failure of petitioner later to impeach the character of said witness in spite of the
opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she informed the court that she
was unable to impeach the character of her witness Canuto Perez because of her inability to find
witnesses who may impeach him, and this explanation stands uncontradicted. Whether this
explanation is satisfactory or not, it is not now, for us to determine. It is an incident that comes
within the province of the former case. The failure of petitioner to present the testimony of Artemio
Reyes at the hearing has also been explained, and it appears that petitioner has filed because his
whereabouts could not be found. Whether this is true or not is also for this Court to determine. It
is likewise within the province and function of the court in the former case. And the unfairness of
this imputation becomes more glaring when we stock of the developments that had taken place in
these proceedings which show in bold relief the true nature of the conduct, behavior and character
of the petitioner so bitterly assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20, 1939,
was filed on February 7, 1941, by the petitioner. There being no opposition, the will was probated.
Subsequently, however, upon petition of the herein oppositors, the order of the court admitting
said will to probate was set aside, over the vigorous opposition of the herein petitioner, and the
case was reopened. The reopening was ordered because of the strong opposition of the oppositors
who contended that he will had not been executed as required by law. After the evidence of both
parties had been presented, the oppositors filed an extensive memorandum wherein they reiterated
their view that the will should be denied probate. And on the strenght of this opposition, the court
disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make the
testamentary disposition in her favor invalid and ineffective, because it is a "disposicion
captatoria", which knowledge she may easily acquire through consultation with a lawyer, there
was no need her to go through the order of filing the petition for the probate of the will. She could
accomplish her desire by merely suppressing the will or tearing or destroying it, and then take
steps leading to the probate of the will executed in 1918. But for her conscience was clear and bade
her to take the only proper step possible under the circumstances, which is to institute the necessary
proceedings for the probate of the 1939 will. This she did and the will was admitted to probate.
But then the unexpected happened. Over her vigorous opposition, the herein appellants filed a
petition for reopening, and over her vigorous objection, the same was granted and the case was
reopened. Her motion for reconsideration was denied. Is it her fault that the case was reopened? Is
it her fault that the order admitting the will to probate was set aside? That was a contingency which
petitioner never expected. Had appellants not filed their opposition to the probate of the will and
had they limited their objection to the intrinsic validity of said will, their plan to defeat the will
and secure the intestacy of the deceased would have perhaps been accomplished. But they failed
in their strategy. If said will was denied probate it is due to their own effort. It is now unfair to

impute bad faith petitioner simply because she exerted every effort to protect her own interest and
prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the second
and third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered
guilty or estoppel which would prevent her from seeking the probate of the 1918 will simply
because of her effort to obtain the allowance of the 1939 will has failed considering that in both
the 1918 and 1939 wills she was in by her husband as his universal heir. Nor can she be charged
with bad faith far having done so because of her desire to prevent the intestacy of her husband.
She cannot be blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will of the
deceased which was denied probate. They contend that, notwithstanding the disallowance of said
will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case
of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all
fours with the facts of this case. Hence, the doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson case we
are indeed impressed by their striking similarity with the facts of this case. We do not need to recite
here what those facts are; it is enough to point out that they contain many points and circumstances
in common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote
hereunder) should not apply and control the present case.
A subsequent will, containing a clause revoking a previous will, having been disallowed, for the
reason that it was not executed in conformity with the provisions of section 618 of the Code of
Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous will,
inasmuch as said revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not disagree
with the soundness of the ruling laid down in the Samson case, there is reason to abandon said
ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in
American jurisprudence. They maintain that said ruling is no longer controlling but merely
represents the point of view of the minority and should, therefore, be abandoned, more so if we
consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of
wills, is of American origin and as such should follow the prevailing trend of the majority view in
the United States. A long line of authorities is cited in support of this contention. And these
authorities hold the view, that "an express revocation is immediately effective upon the execution
of the subsequent will, and does not require that it first undergo the formality of a probate
proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors, and that
view appears to be in controlling the states where the decisions had been promulgated, however,
we are reluctant to fall in line with the assertion that is now the prevailing view in the United
States. In the search we have made of American authorities on the subject, we found ourselves in
a pool of conflicting opinions perhaps because of the peculiar provisions contained in the statutes
adopted by each State in the subject of revocation of wills. But the impression we gathered from a
review and the study of the pertinent authorities is that the doctrine laid down in the Samson case
is still a good law. On page 328 of the American Jurisprudence Vol. 57, which is a revision

Published in 1948, we found the following passages which in our opinion truly reflect the present
trend of American jurisprudence on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily, statutes which
permit the revocation of a will by another writing provide that to be effective as a revocation, the
writing must be executed with the same formalities which are required to be observed in the
execution of a will. Accordingly, where, under the statutes, attestation is necessary to the making
of a valid will, an unattested non testamentary writing is not effective to revoke a prior will. It has
been held that a writing fails as a revoking instrument where it is not executed with the formalities
requisite for the execution of a will, even though it is inscribed on the will itself, although it may
effect a revocation by cancellation or obliteration of the words of the will. A testator cannot reserve
to himself the power to modify a will by a written instrument subsequently prepared but not
executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will which is
invalid because of the incapacity of the testator, or of undue influence can have no effect whatever
as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a
will revoked by a defectively executed will or codicil, even though the latter contains a clause
expressly revoking the former will, in a jurisdiction where it is provided by a controlling statute
that no writing other than a testamentary instrument is sufficient to revoke a will, for the simple
reason that there is no revoking will. Similarly where the statute provides that a will may be
revoked by a subsequent will or other writing executed with the same formalities as are required
in the execution of wills, a defectively executed will does not revoke a prior will, since it cannot
be said that there is a writing which complies with the statute. Moreover, a will or codicil which,
on account of the manner in which it is executed, is sufficient to pass only personally does not
affect dispositions of real estate made by a former will, even though it may expressly purport to
do so. The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57
Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400,
Volume 123, there appear many authorities on the "application of rules where second will is
invalid", among which a typical one is the following:
It is universally agreed that where the second will is invalid on account of not being executed in
accordance with the provisions of the statute, or where the testator who has not sufficient mental
capacity to make a will or the will is procured through undue influence, or the such, in other words,
where the second will is really no will, it does not revoke the first will or affect it in any manner.
Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case
is predicated. They reflect the opinion that this ruling is sound and good and for this reason, we
see no justification for abondoning it as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be
some will, codicil, or other writing executed as proved in case of wills" but it cannot be said that
the 1939 will should be regarded, not as a will within the meaning of said word, but as "other
writing executed as provided in the case of wills", simply because it was denied probate. And even
if it be regarded as any other writing within the meaning of said clause, there is authority for
holding that unless said writing is admitted to probate, it cannot have the effect of revocation. (See
57 Am. Jur. pp. 329-330).

But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918
cannot still be given effect because of the presumption that it was deliberately revoked by the
testator himself. The oppositors contend that the testator, after executing the 1939 will, and with
full knowledge of the recovatory clause contained said will, himself deliberately destroyed the
original of the 1918 will, and for that reason the will submitted by petitioner for probate in these
proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately destroyed the
original of the 1918 will because of his knowledge of the revocatory clause contained in the will
he executed in 1939. The only evidence we have is that when the first will was executed in 1918,
Juan Salcedo, who prepared it, gave the original and copies to the testator himself and apparently
they remained in his possession until he executed his second will in 1939. And when the 1939 will
was denied probate on November 29, 1943, and petitioner was asked by her attorney to look for
another will, she found the duplicate copy (Exhibit A) among the papers or files of the testator.
She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge
of the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his
wife, the herein petitioner, the most logical step for the testator to take is to recall said duplicate
copy in order that it may likewise be destroyed. But this was not done as shown by the fact that
said duplicate copy remained in the possession of petitioner. It is possible that because of the long
lapse of twenty-one (21) years since the first will was executed, the original of the will had been
misplaced or lost, and forgetting that there was a copy, the testator deemed it wise to execute
another will containing exactly the same testamentary dispositions. Whatever may be the
conclusion we may draw from this chain of circumstances, the stubborn fact is that there is no
direct evidence of voluntary or deliberate destruction of the first will by the testator. This matter
cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator
after the execution of the second will, which revoked the first, could there be any doubt, under this
theory, that said earlier will was destroyed by the testator in the honest belief that it was no longer
necessary because he had expressly revoked it in his will of 1939? In other words, can we not say
that the destruction of the earlier will was but the necessary consequence of the testator's belief
that the revocatory clause contained in the subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate
under the principle of "dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and is usually applied where the
testator cancels or destroys a will or executes an instrument intended to revoke a will with a present
intention to make a new testamentary disposition as a substitute for the old, and the new disposition
is not made or, if made, fails of effect for same reason. The doctrine is n limited to the existence
of some other document, however, and has been applied where a will was destroyed as a
consequence of a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the making of another
will so as fairly to raise the inference that the testator meant the revocation of the old to depend
upon the efficacy of a new disposition intended to be substituted, the revocation will be conditional
and dependent upon the efficacy of the new disposition; and if, for any reason, the new will

intended to be made as a substitute is inoperative, the revocation fails and the original will remains
in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition
upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive
conditions, and hence prevents the revocation of the original will. But a mere intent to make at
some time a will in the place of that destroyed will not render the destruction conditional. It must
appear that the revocation is dependent upon the valid execution of a new will. (1 Alexander, p.
751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the original will by the
testator could be presumed from the failure of the petitioner to produce it in court, such destruction
cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on
the mistaken belief that the will of 1939 has been validly executed and would be given due effect.
The theory on which this principle is predicated is that the testator did not intend to die intestate.
And this intention is clearly manifest when he executed two wills on two different occasion and
instituted his wife as his universal heir. There can therefore be no mistake as to his intention of
dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to prove the due
execution of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino
Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present
proceedings. So the only instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner
presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the
notary public who prepared and notarized the will upon the express desire and instruction of the
testator, The testimony of these witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed by their readiness and
sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the
appellants.1wphl.nt
Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.
G.R. No. 49108

March 28, 1946

In the matter of the testate estate of the late Margarita David. GONZALO D. DAVID, petitionerappellant,
vs.
CARLOS SISON, oppositor-appellant.
Gonzalo
D.
David
Carlos M. Sison in his own behalf.

in

his

own

behalf.

PERFECTO, J.:
This is an appeal against a resolution issued by Judge Gervasio Diaz, of the Court of First Instance
of Manila, ordering the administrator of the estate of Margarita David to pay petitioner as attorney's
fees, for services rendered to the estate, from March, 1941, to March, 1943, in the amount of
P18,000.

In the petition filed in the lower court on March 24, 1943, petitioner prayed that he be awarded an
amount equivalent to 5 per cent of the original inventoried estate, namely, the sum of P72, 779.10,
although in his brief, dated April 11, 1944, he claims that the 5 per cent he is charging should be
estimated not only on the basis of the inventoried estate but including besides the income thereof
for two and one-half years, totalling P1,627,507.24, the 5 per cent thereof would amount to
P81,375.36, more or less.
The oppositor contended that the amount granted by the lower court is exorbitant, but failed to
state in his brief what reasonable amount should be. At the hearing of this case he manifested he
would consider reasonable the amount of P3,000, although he would not mind any amount that
may be fixed, provided the payment of any part of said attorney's fees would not be shouldered by
his wife, Priscila F. Sison, one of the heiresses of the estate, nor affected any part of the property
adjudicated to her.
From the above, it can be seen that the two contending parties went to possible extremes, allowed
by their respective feelings and imaginations, and that the reasonable amount should be found
between the two extremes. It is inconceivable that two reasonable persons, such as we presume
the petitioner and the oppositor to be, neither one showing that he is beyond any standard of
normality, both cultured and trained in the science of law, disagree from P3,000 to P81,375.36 in
appraising the pecuniary value of the legal services in question. The reason for this so wide a
difference must be found in the fact that both allowed themselves to give way, not to fair dealing
and fair judgment, but to uncontrollable emotions aroused by intransigent conflict of monetary
interest.
The parties thresh in this appeal three main questions:
(1) Whether the donation executed by the deceased on September 6, 1940, as appears in Exhibit
FFFFF, should be considered as inter vivos or mortis causa, the parties placing great importance
on this question under the theory that, in the first place, the donated properties must be excluded
from the estate proceedings; but in case the donation is mortis causa, that should be included in
the inventory of the estate.
(2) Whether heiress Priscila F. Sison should or should not shoulder the corresponding burden in
the payment of petitioner's fees for the properties adjudicated to her.
(3) The reasonable amount that must be granted to petitioner as attorney's fees.
The lower court, after considering the facts in the case, arrived at the conclusion that the donation
was inter vivos,on the strength of the doctrine that a donation in order to be mortis causa must have
for consideration the donor's death.
We do not have before us the full text of the deed of donation, but only the following paragraphs
of the same as quoted in the record on appeal of petitioner and in the briefs of both parties:
"Na and naturang "donor," Margarita David y Puato, alang-alang sa malaki niyang pagtigin,
pagligap at pagmamahal sa mga nabanguit na "donees" Narcisa de la Fuente at Priscila de la
Fuente, sa pamamagitan nang kasulatang ito, malayang ibinigay at ipinagkakaloob sa mga
naturang Narcisa de la Fuente at Priscila de la Fuente, at sa kanilang mga tagapagmana, "albacea"
at "Administradores", sa habang panahon, ang kanyang mga titulo, interes at participacion sa mag
sumusunod na ari-arian na pawang malines sa lahat nang mga pananagutan: (Rec. on Appeal, pp.
209, 210.)

Datapwa't ang lahat nang mga tubo at pakinabangan nang nagbibigay o "donor" na si Margarita
David y Puato hanggang siya ay hindi binabawian nang buhay nang maykapal; at ang mga
pinagbibigyan na si Narcisa de la Fuente at Priscila de la Fuente ay hindi maaaring maipagbili,
maisangal, a maipagpalit o sa ano pa man paraan, kung walang kaalaman at pahintulot nang
naturang Margarita David y Puato. (Rec. on Appeal, pp. 212, 213.)
The following facts are pointed to us concerning the deed of donation:
(1) That on December 20, 1938, Margarita David executed her first and only last will and testament
in favor of her grandnieces Narcisa de la Fuente de Teodoro and Priscila de la Fuente de Sison as
residuary heiresses, and other relatives of the same degree as legatees and devisees.
(2) That on October 21, 1939, Margarita David adopted, in special proceedings No. 55861 of the
Court of First Instance of Manila, said grandnieces Narcisa de la Fuente de Teodoro and Priscila
de la Fuente de Sison, making them her adopted children.
(3) That on September 6, 1940, Margarita David executed the deed of donation in question in favor
of her newly adopted children, the same testamentary residuary heiresses, donating to them
practically the same properties disposed of in the will.
(4) That on November 18, 1940, the Collector of Internal Revenue rejected the donor's and donee's
gift tax returns on the deed of donation in question, on the ground that the donation is a transfer in
contemplation of death and subject to an estate and inheritance taxes, which should be paid upon
Margarita David's death in accordance with section paid upon Margarita David's death in
accordance with section 88 (b) of the Internal Revenue Code.
(5) That, in fact, after the death of Margarita David the estate and inheritance taxes on the
properties were paid.
(6) That, acting upon the claim made by the probate clerk and by the cashier of the Court of First
Instance of Manila, said court ordered the executor to pay an additional docketing fee of P786
based on the inventory of the estate as valued at P1,415,581.99, including the properties disposed
of in the deed of donation.
(7) That when Margarita David signed the deed of donation she was already irretrievably ill and
she knew that the end was near and inevitable.
(8) That since the donation was executed on September 6, 1940, until Margarita David's death on
February 24, 1941, less than six months had elapsed.
(9) That from the execution of the deed of donation up to the donor's death, the donation properties
remained in her office entitled: "Margarita David, Administrator's office."
(10) That Margarita David has reserved to herself the usufruct of all the donated properties during
her lifetime, and provided that the donated properties could not be alienated by the donees without
the knowledge and consent of the donor, Margarita David.
(11) That the donees, being the universal heirs of Margarita David, as her adopted daughters,
without the deed of donation or any will, were to inherit the donated properties by operation of
law.
Petitioner mentions, furthermore, that by the adoption of the above-mentioned grandnieces, the
inheritance tax was reduced to about one-third of the amount it would have been paid if the said
grandnieces were not adopted as children of Margarita David, the inheritance tax actually paid

being P224,000, while, otherwise, the amount would have been P672,000; and, lastly, the tax to
be paid could have been further reduced by the execution of the deed of donation, as the rate
schedule for gift tax is lower than the rate schedule for inheritance tax.
In one of the paragraphs of the deed of donation above quoted, it appears that all rents, proceeds,
fruits, of the donated properties shall remain for the exclusive benefit and disposal of the donor,
Margartia David, during her lifetime; and that, without the knowledge consent of the donor, the
donated properties could not be disposed of in any way, whether by sale, mortgage, barter, or in
any other way possible, thus making the donees just as paper owners of the properties which , for
all practical purposes, remained the properties of Margarita David.
From all the foregoing, we conclude that the donation in question is, in fact, a donation mortis
causa, because the combined effect of the circumstances surrounding the execution of the deed of
donation and of the above-quoted clauses thereof could not have taken effect before the death of
Margarita David. According to the terms of the deed, the most essential elements of ownership
the right to dispose of the donated properties and the right to enjoy the products, profits, possession
remained with Margarita David during her lifetime, and would accrue to the donees only after
Margarita David's death.
Although we arrived at the conclusion that the donation in question is a donation mortis causa, we
are not inclined to support petitioner's contention that, in the present case, the donated properties
should be included in the inventory of the estate and should follow the same proceedings as if they
were not donated at all, it appearing that the donated properties (which, by the way, were the object
of an extrajudicial partition between the donees) are not necessary to answer for the obligation left
by the deceased, there being enough properties not included in the donation to answer for said
obligations.
The second question, that is, whether heiress Priscila F. Sison should or should not shoulder the
corresponding burden in the payment of petitioner's fees for the properties adjudicated to her, our
opinion is that the question must be answered affirmatively. No heir, legatee, or devisee may elude
the payment of any obligation of the estate which should be answered by the estate as a whole in
which no discrimination can be made in favor of or against any heir or heiress.
The third question is not so easy to dispose of, as no fast rules can be se up upon which the
reasonable attorney's fees of petitioner can be estimated with mathematical accuracy.
Memorandum of legal services rendered by petitioner from March, 1941, to March, 1943, appears
as part of his petition dated March 24, 1943, reproduced in his record on appeal, pages 6 to 42. An
additional memorandum of services rendered until August, 1943, is included in the supplement
pleading, pages 121-128 of the same record on appeal.
We have examined both memoranda of legal services and, although petitioner spent about two
years and a half, the services appear to be generally of routinary character, not needing any special
skill nor the exertion of unusual efforts, nor the employment of long hours of legal study and
research, nor the waste or expenditure of extraordinary length of time that might deprive him of
the opportunity to render legal services in other cases and collect profitable legal fees.
But, at the same time, while there is nothing in the services to require of justify a special
compensation, in estimating the reasonable fees that should be awarded to petitioner, we have
considered, among other factors and circumstances, the length of time which ran from the first
service to the last around two years and a half the number of services rendered, and the fact

that petitioner, being a near relative of the deceased, would have received a substantial share in the
numerous properties left by the deceased, if the latter had died intestate and had not decided to
adopt as her children two nieces who were in the same rank of relationship with the deceased as
petitioner. It appears that petitioner had received only a small legacy valued at less than P1,000.
After considering all the facts and circumstances in this case, in an effort to fix an amount that
could be as reasonable as possible, the court decided that petitioner is entitled to the sum of
P10,000, as attorney's fees, to be paid by the estate of the deceased Margarita David, and so modify
the appealed resolution, without pronouncement as to costs.
Ozaeta, De Joya, Hilado, and Bengzon, JJ., concur.
February 11, 1918
G.R.
No.
L-11823
CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO, petitionersappellants,
vs.
MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-appellants.
Guillermo Lualhati for appellants. Perfecto Gabriel for appellees.
Araullo, J.:
On September 20, 1915, attorney Perfecto Gabriel presented in the Court of First Instance of the
city of Manila for allowance as the will of Simeona F. Naval, who died in said city two days
previously, a document executed by her of February 13, 1915, and in which he was appointed
executor. The case was recorded as No. 13386 and, after hearing the petition for allowance filed
by said executor, it was denied on the ground that said document was not duly executed by the
deceased as her last will and testament, inasmuch as she did not sign it in the presence of three
witness and the two witnesses did not sign it in the presence of each other. Thereafter the nieces
and legatees of the same deceased filed in the same court for allowance as her will, another
document executed by her on October 31, 1914, and, consequently, the case was registered under
another number, which was No. 13579. The petition for allowance was opposed by Monica Naval,
Rosa Naval, and Cristina Naval on the ground that the will, the allowance of which is asked, could
not be allowed, because of the existence of another will of subsequent date, executed during her
lifetime by the same Simeona F. Naval, and because said will has been revoked by another
executed subsequently by her during her lifetime, and further, because sail will has not been
executed with the formalities required by existing laws. Trial having taken place, at which evidence
was adduced, the court on February 8, 1916, issued an order, admitting said second document and
ordering its allowance as the last will and testament o said deceased. From said order the opponents
appealed to this court and transmitted to us the corresponding declarations. Tow of the opponents,
that is, Rosa and Cristina Naval, assigned, as errors committed by the court, the following:
1. The finding of the court that the will of October 31, 1914, has not been revoked by that of
February 13, 1915;
2. The act of the court in permitting the petitioner to institute and proceed with the proceedings
relative to the last case for the allowance of the will, No. 13579, notwithstanding that proceedings
had already been had in the other case No. 13386 and final judgment rendered therein; and

3. The act of the court in denying the motion for continuance of the trial on the allowance of the
will of October 31, 1914, which motion was presented for the sole purpose of introducing evidence
to show the falsity of the signature appearing in said will and submitting said signature to the
Bureau of Science for analysis.
The other opponent, Monica Naval, assigned, besides the first two errors already mentioned, the
finding of the court that the disallowance of the will of said deceased, dated February 13, 1915, on
the ground that is was not executed in such form that it could transmit real and personal property,
according to section 618 of the Code of Civil Procedure, also had the effect of annulling the
revocatory clause in said will.
From the evidence it appears, as we have already stated, that the trial court declared that the first
document presented by the executor of the deceased, Simeona F. Naval, as a will executed by her
on February 13, 1915, and which was the subject-matter of case No. 13386 of said court, could not
be allowed, on the ground that it was not executed with the requisites and formalities prescribed
by law. Article 739 of the Civil Code provides that a former will is by operation of law revoked
by another valid subsequent will, if the testator does not state in the later will his desire that the
former should subsist wholly or partly. In harmony with this provision of substantive law, we find
section 623 of the Code of Civil Procedure, which provides that no will shall be revoked, except
by implication of law, otherwise than by some will, codicil, or other writing executed as provided
in case of wills.
Therefore, according to the legal provisions, in order that the will of February 13, 1915, that is, the
first document presented as the will of the deceased Simeona F. Naval, could have the effect of
revoking that which was presented afterwards by the petitioners as executed by the same deceased
on October 31, 1914, that is, on a date previous to the execution of the first, it was necessary and
indispensable that the later will, that is, that first presented for allowance, should be perfect or
valid, that it, executed as provided by lay in case of wills.
It also appears from the record that the opponents themselves maintained that said later will, that
is, that of February 13, 1915, was not perfect, or executed as provided by law in case of wills, and
the Court of First Instance of Manila has so held in disallowing said documents as the will of the
deceased. So that it very evident that the second will presented, that is, that of October 31, 1914,
was not and could not have been revoked by the first, and the court was not in error in so holding
in the order appealed from. We deem it unnecessary to add a single word mere or cite well-known
doctrines and opinions of jurists in support of what has already been stated.
As to the second error assigned by the opponents, we believe it sufficient to refer to what the court
below stated in the judgment appealed from. It is as follows:
The court finds no incongruency in the presentation of a prior will when another will of subsequent
date has been disallowed. Disregarding the fact that the petitioners in this case were not those who
presented the will in No. 13386, in which the petition was presented by the same D. Perfecto
Gabriel as executor, it is proper to take into account that the object of a petition for allowance is
to ask for an order declaring that a will has been executed in accordance with the requisites and
formalities required by law. This is a question for the court to decide and is out of the control of
the party who presents the will. The allowance or disallowance of a will by a competent court
depends upon whether the evidence adduced at the trial shows or does not show that the formalities
required by law have been complied with, and this cannot be determined in advance, as a general

rule, by the person who presents the testament. for he has not always concurred in or seen the
execution of the will.
If, therefore, the personal who presents a will and asks that if be allowed does not secure its
allowance, and he has in his possession another will, or has information that another exists, he
does not contradict himself by asking for the allowance of the will of earlier date merely because
the later will was declared invalid by the proper court. If in this case there is any who adopts a
contradictory position, it is the respondent himself, inasmuch as in case No. 13386 he alleged, as
a ground for the disallowance of the will then presented, that it was not executed in accordance
with the law, and now he maintains the contrary, for he claims that said will revoked that which is
now presented.
With respect to the third error, it is beyond doubt that the court did not commit it, for it appears
that when the examination of the witness, Cristina Samson, was finished and the court told
Attorney Lualhati, counsel for the respondents, to continue adducing his evidence, he said he had
no more proof, although he added that he would ask the court to grant him permission to send the
will of 1914 to the Bureau of Science, which petition was objected to by the attorney for the
proponents and denied by the court. Immediately thereafter the attorney for the opponents asked
for the continuance of the trial, which was also denied by the court, after objection was made by
the proponents. The attorney for the opponents excepted to said ruling.
Therefore, the petition of said attorney for the remission of said will to the Bureau of Science, in
the terms in which it was made to the court, after ha had stated that he had no more evidence to
present, signified that he left it to the discretion of the court to grant it or not. Furthermore, no
exception was taken to the order to the order denying this motion, and although the attorney for
the opponents excepted to the order denying the motion for continuance of the trial, such exception
was completely useless and ineffective for the purpose of alleging before this court that the trial
court erred in that respect, for said resolution, being one of those left to the discretion of the court
in the exercise of it functions, according to section 141 of the Code of Civil Procedure, it could
not be the subject of an exception, unless the court, in denying said motion, abused its discretional
power and thereby prejudiced the essential rights of the respondents, which is not the case here.
The error which, in addition to the first two already mentioned, has been assigned by the opponent
and appellant, Monica Naval, and refers, according to her, to the court's action in declaring that
the disallowance of the will of the deceased Simeona F. Naval, dated February 13, 1915, for the
reason that it was not executed in such manner and from that it could transmit real and personal
property, according to the provisions of section 618 of the Code of Civil Procedure, also had the
effect of annulling the revocatory clause of said will.
First of all, it is not true that the court made such statement in the terms given in said assignment
of error, that is, it is not true that the court declared that, because said will was not executed in the
form required by law in order that it may transmit real and personal property, according to the
provisions of section 618, the disallowance of said will also had the effect of annulling the
revocatory clause therein contained. In the order appealed from there is no declaration or
conclusion made in these terms. The court did not say that the annulment of the revocatory clause
in said will was the effect or consequence of the fact that it was not allowed on the ground that it
was not executed in the form required by law in order that it may transmit real and personal
property. Referring to the construction, given by the respondent to sections 618 and 623 of
the Code of Civil Procedure, to the effect that a subsequent will may revoke a previous will,

although the later will has not been allowed by the competent court, it being sufficient that the
intention of the testator to revoke the previous will should be clearly expressed, and that, while the
requisite of allowance is necessary in order that it may transmit property from one person to
another, it is not necessary in order that it might procedure other effects, for example, the effect of
a revocatory clause, or a clause of aknowledgment of a child, - what the court declared, we repeat,
was that although the revocation of a will should have been effected, not by means of another will
or codicil, but by mans of a document, as authorized by said section 623, which document should
have the requisites and conditions fixed in section 618, the presentation of the document to the
court was necessary in order that the latter might allow it, by declaring that it was executed with
the formalities required by law for the execution of a will, and finally concluding that, just as to,
is to be proved that the requisites of section 618 have been complied with in order that a will may
be of value through its allowance, so without such allowance the revocatory clause like the other
provisions of the will, has no value or effect except to show extraneous matters, as, for example,
the acknowledgment of natural children, of some debt or obligation. In such case, the document
could produce effect, but not as will, but simply as a written admission made by the person
executing it. And It is beyond doubt that the revocatory clause contained in a document, like the
present, which contains provisions proper of a will, as those relating to legacies and distribution
of the properties of the testator after his death as well as the appointment of executors, is not matter
extraneous to the will, but merely a part thereof, intimately connected with it as well as with the
will or wills, the revocation of which is declared in said clause; in short, the desire of the testator
declared in the revocatory clause is related to the desire of the same testator expressed in the
provisions of the testament in which said clause is found and to that which he might have expressed
in the testaments which he may have previously executed. There is such relation between the
revocatory clause and the will which contains it, that if the will does not produce legal effects,
because it has not been executed in accordance with the provisions of the law, neither would the
revocatory clause therein produce legal effects. And if, in the present case, the so-called will of the
deceased, Simeona F. Naval, dated February 13, 1915, was not duly executed by her as her last
will and testament, ad declared by the court in its decision of November 19, 1915, in case No.
13386, for which reason its allowance was denied, neither may it be maintained that the revocatory
clause contained in said will is the expression of the last will of said deceased. The disallowance
of the ill, therefore, produced the effect of annulling the revocatory clause, not exactly because
said will was not executed in such from that it could transmit real and personal property, as
inaccurately alleged by the appellant, Monica Naval, to be the court's finding, upon which said
assignment of error is based, but because it was proved that said will was not executed or signed
with the formalities and requisites required by section 618 of the Code of Civil Procedure, a cause
which also produces the nullity of the same will, according to section 634 of said law; and of
course what is invalid in law can produce no effect whatever.
If the instrument propounded as a revocation be in form a will, it must be perfect as such, and be
subscribed and attested as is required by the statute. An instrument intended to be a will, but filing
of its effect as such on account of some imperfection in its structure or for want of due execution,
cannot be set up for the purpose of revoking a former will. (40 Cyc., p. 1177, and cases cited
therein.)
A subsequent will containing a clause revoking an earlier will must, as a general rule, be admitted
to probate before the clause of revocation can have any effect, and the same kind, quality, and
method of proof is required for the establishment of the subsequent will as was required for the
establishment of the former will. (40 Cyc., p. 1178, and cases cited therein.)

But admitting that the will said to have been executed by the deceased Simeona F. Naval on
February 13, 1915, notwithstanding its inefficacy to transmit property for the reason that it has not
been executed, according to the provisions of said section 618 of the Code of Civil Procedure,
should be considered as executed by her in order to express her desire, appearing in one of its
clauses, to revoke and annul any previous will of hers, as stated in clause 13, this being the
argument adduced by the appellant, Monica naval, in support of said assignment of error - neither
could it be maintained that, the allowance of said will having been denied by the court on
November 11, 1915, said revocatory clause subsists and the intention expressed by the testratrix
therein is valid and legally effective, for the simple reason that, in order that a will may be revoked
by a document, it is necessary, according to the conclusive provisions of section 623 of said
procedural law, that such documents be executed according to the provisions relating to will in
section 618, and the will in question, or, according to the respondent, the so-called document, was
not executed according to the provisions of said section, according to the express finding of the
trial court in its order of November 11, 1915, acquiesced in by the opponent herself, and which is
now final and executory. Therefore, the disallowance of said will and the declaration that it was
not executed according to the provisions of law as to wills, produced the effect of annulling said
revocatory clause.
In support of the argument advanced in her brief said appellant, Monica Naval, cites the declaration
made by the Supreme Court of Massachusetts in Wallis vs. Wallis (114 Mass., 510, 512)m which,
according to the appellant herself, was in the following terms:
If it be shown that a later will was duly executed and attested, containing a clause expressly
revoking former will nothing else appearing as to its contents, it is nevertheless good as a
revocation, but it can only be made available by setting it up in opposition to the probate of the
earlier will.
In the decision of said case the finding referred to be by the appellant appears not to have been
made by the Supreme Court of Massachusetts.
The syllabus of said decision says:
When a will revoking a former will is in existence, it must be established in the Probate Court; but
when it has been lost or destroyed, and its contents cannot be sufficiently proved to admit it to
probate, it may nevertheless be availed of as a revocation in opposition to the probate of the will
revoked by it.:
And in the body of the decision there is a declaration, to which the appellant must have desired to
refer in her brief, which declaration says:
If it can be proved that a later will was duly executed, attested and subscribed, and that it contained
a clause expressly revoking all former wills, but evidence of the rest of its contents cannot be
obtained, it is nevertheless a good revocation; and it can be made available only by allowing it to
be set up in opposition to the probate of the earlier will,. . .
The facts of the case in which this decision was rendered are different from the facts of the case at
bar. That was a case concerning a will filed by one of the children of the testatrix, Mary Wallis, as
her last will, to the allowance of which another son objected, alleging that said will had been
revoked by another executed by the same deceased subsequent to the will that was filed, and that
it had been fraudulently destroyed or taken by his brother, the proponent and his wife, or by one
of them, in order to deprive him of the rights conferred upon him by said will. Therefore, the will

said to have been subsequently executed by the testatrix and in which, according to the oppositor,
the clause revocatory of the former will appeared, was not presented by said oppositor, while the
previous will was, in the contrary, filed for allowance by the son of the testratrix, who appeared to
be favored therein, said oppositor having alleged that the subsequent will, that is, that containing
the revocatory clause, had been drawn, subscribed and executed in accordance with the provisions
of the law, a fact which he was ready to prove just as he was ready to prove that it had been
destroyed or suppressed by the proponent, his brother and his wife, or one of them. In the case at
bar, the subsequent will containing the revocatory clause of the previous will executed by the
deceased Simeona F. Naval was presented to the court for allowance and it was disallowed - a fact
which gave opportunity to the legatees of said deceased to present a previous will executed by her
on October 31, 1914, and said two wills having been successively presented, evidence as to them
was also successively adduced for their allowance by the court.
Therefore, the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis
(supra), to the effect that a subsequent will containing a revocatory clause of previous wills,
constitutes a valid revocation and may be used in objecting to the allowance of the previous will,
even when it is not possible to obtain proof of the remainder of the contents of said subsequent
will, refers to the case in which the latter had been taken away, destroyed or suppressed, and it was
impossible to present it for allowance, but requires for that purpose that it be proved that said
subsequent will has been executed, attested, and subscribed in due form and that it contained,
furthermore, that revocatory clause. This is what said declaration and, in relation thereto, also what
the syllabus of the decision thereof clearly says. The court, through Chief Justice Gray, in giving
its opinion, thus began by saying:
By our law, no will can be revoked by any subsequent instrument, other than a "will, codicil or
writing, signed, attested and subscribed in the manner provided for making a will." And when an
instrument of revocation is in existence and capable of being propounded for probate, its validity
should be tried by a direct proceeding instituted for the purpose in the Probate Court. (Loughton
vs. Atkins, 1 Pick., 535.)
It results, therefore, that while perfect parity does not exist between the case decided by the
Supreme Court of Massachusetts, to which the appellant Monica Naval refers, and that which is
not before us, it is wholly unquestionable that, whether the case deals with a subsequent will
revocatory of a previous will, which may possibly be presented to a probate court for allowance,
or of a subsequent will, also revocatory of a previous will, which could not be presented for
allowance, because it has been taken or hidding, or mislaid - in order that such will may constitute
a valid revocation and be utilized in the second case, although the remaining provisions may not
be proven, in opposition to the allowance of the previous will, it is necessary to prove that it was
executed, attested, and subscribed in due form, and, of course, also that it contained a clause
expressly revoking the previous will, or, what is the same thing, that said subsequent will has been
executed according to the provisions relating to wills, as expressed in section 623 of the procedural
law in force. There can be no doubt whatever that this applies when the revocation had been made
to appear in a writing or document susceptible of presentation for allowance, like the so-called will
of the deceased Simeona F. Naval, dated February 13, 1915, and considered by said respondent
and appellant as a mere document of revocation, for, as already seen in said decision invoked by
her, the requisite as to signing, attesting, and subscribing in the form, required by law for the
execution of wills in order that it may revoke a previous will, is also required in a will as well as
in a codicil, or in a writing, and in referring to a document of revocation, it is also expressed that

its validity should be proved in a direct proceeding, instituted for the purpose in a probate court.
In the case at bar, the document, executed by the deceased, Simeona F. Naval, as her last will and
testament, dated February 13, 1915, has been presented for allowance; it validity has been proved
by means of said procedure in the Court of Probate of Manila, and that court denied its allowance,
on the ground that the document in question had not been duly executed by the deceased, as her
last will and testament, because she did not sign in the presence of three witnesses, and two of
these witnesses did not sign in the presence of each other, or what is the same thing, that said
document has not be attested and subscribed in the manner established by law for the execution of
will, or, in other words, as provided by law in case of wills, as stated by section 623 of said
procedural law, and this resolution was acquiesced in, as already stated, by the respondents in this
case, and is, therefore, final and executory.
In conclusions, the doctrine laid down in the decision of the Supreme Court of Massachusetts,
invoked by the appellant, Monica Naval, is in conformity with the provision of said section 623 of
our procedural law and article 739 of the Civil Code, and the will executed by the deceased
Simeona F. Naval on October 31, 1914, not having been revoked, according to these provisions,
by the will presented and alleged as executed by the same deceased subsequently on February 13,
1915, the allowance of which was denied by the Court of First Instance of Manila, the court below
was not in error in ordering the allowance of said will, that is, of that of October 31, 1914, as the
last will and testament of said deceased.
Wherefore, the order appealed from is affirmed, with the costs of this instance against the
appellants. So ordered.
Arellano, C.J., Torres, Carson, Streets and Malcolm, JJ., concur.
G.R. No. L-8327

December 14, 1955

ANTONINA CUEVAS, Plaintiff-Appellant, vs. CRISPULO CUEVAS, Defendant-Appellee.

Pedro
D.
Teodoro P. Santiago for appellee.

Maldia

for

appellant.

REYES, J. B. L., J.:

On September 18, 1950, Antonina Cuevas executed a notarized conveyance entitled
"Donacin Mortis Causa," ceding to her nephew Crispulo Cuevas the northern half of a parcel of
unregistered land in barrio Sinasajan, municipality of Penaranda, Province of Nueva Ecija (Exhibit
A).
In
the
same
instrument
appears
the
acceptance
of
Crispulo
Cuevas.chanroblesvirtualawlibrary chanrobles virtual law library
"Subsequently, on May 26, 1952, the donor executed another notarial instrument entitled
"Revocacion de Donacion Mortis Causa" (Exhibit B) purporting to set aside the preceding
conveyance; and on August 26, 1952, she brought action in the Court of First Instance to recover
the land conveyed, on the ground (1) that the donation being mortis causa, it had been lawfully
revoked by the donor; and (2) even it if were a donation inter vivos, the same was invalidated
because (a) it was not properly accepted; (b) because the donor did not reserve sufficient property
for her own maintenance, and (c) because the donee was guilty of ingratitute, for having refused
to support the donor.chanroblesvirtualawlibrary chanrobles virtual law library
Issues having been joined, and trial had, the Court of First Instance denied the recovery sought,
and Antonina Cuevas thereupon appealed. The Court of Appeals forwarded the case to this Court

because, the case having been submitted on a stipulation of facts, the appellant raised only
questions of law.chanroblesvirtualawlibrary chanrobles virtual law library
The first issue tendered converns the true nature of the deed "Exhibit A"; whether it embodies a
donation inter vivos, or a disposition of property mortis causa revocable freely by the transferor at
any time before death. 1 chanrobles virtual law library
It has been rules that neither the designation mortis causa, nor the provision that a donation is "to
take effect at the death of the donor", is a controlling criterion in defining the true nature of
donations (Laureta vs. Mata, 44 Phil., 668; Concepcion vs. Concepcion, 91 Phil., 823). Hence, the
crux of the controversy revolves around the following provisions of the deed of donation:
Dapat maalaman ni Crispulo Cuevas na samantalang ako ay nabubuhay, and lupa na
ipinagkakaloob ko sa kaniya ay ako pa rin and patuloy na mamomosecion, makapagparatrabaho,
makikinabang at ang iba pang karapatan sa pagmamayari ay sa akin pa rin hanggang hindo ko
binabawian ny buhay ng Maykapal at ito naman ay hindi ko nga iya-alis pagkat kung ako ay
mamatay na ay inilalaan ko sa kaniya.
There is an apparent conflict in the expression above quoted, in that the donor reserves to herself
"the right of possession, cultivation, harvesting and other rights and attributes of ownership while
I am not deprived of life by the Almighty"; but right after, the same donor states that she "will not
takle away" (the property) "because I reserve it for him (the donee) when I die."chanrobles virtual
law library
The question to be decided is whetehr the donor intended to part with the title to the property
immediately upon the execution of the deed, or only later, when she had died. If the first, the
donation is operative inter vivos; if the second, we would be confronted with a disposition mortis
causa, void from the beginning because the formalities of testaments were not observed (new Civil
Code, Arts. 728 and 828; heirs of Bonsato vs. Court of Appeals, 2 50 Off. Gaz. (8), p. 3568; Tuason
vs.
Posadas,
54
Phil.,
289;
Sent.
Trib.
Sup.
of
Spain,
8
July
1943).chanroblesvirtualawlibrary chanrobles virtual law library
We agree with the Court below that the decisive proof that the present donation is operative inter
vivor lies in the final phrase to the effect that the donor will not dispose ortake away ("hindi ko
nga iya-alis" in the original) the land "because I am reserving it to him upon my death." By these
words the donor expressly renounced the right to freely dispose of the property in favor of another
(a right essential to full ownership) and manifested the irrevocability of the conveyance of the
naked title to the property in favor of the donee. As stated in our decision in Bonsato vs. Court of
Appeals, ante, such irrevocability is characteristic of donations inter vivos, because it is
incompatible with the idea of a disposition post mortem. Witness article 828 of the New Civil
Code, that provides:
ART. 828. A will may be revoked by the testator at any time before his death. Any waiver or
restriction of this right is void.
It is apparent from the entire context of the deed of donation that the donor intended that she should
retain the entire beneficial ownership during her lifetime, but that the naked title should irrevocably
pass to the donee. It is only thus that all the expressions heretofore discussed can be given full
effect; and when the donor stated that she would continue to retain the "possession, cultivation,
harvesting and all other rights and attributes of ownership," she meant only the dominium utile,
not the full ownership. As the Court below correctly observed, the words "rights and attributes of

ownership" should be construed ejusdem generis with the preceding rights of "possession,
cultivation and harvesting" expressly enumerated in the deed. Had the donor meant to retain full
or absolute ownership she had no need to specify possession, cultivation and harvesting, since all
these rights are embodied in full or absolute ownership; nor would she then have excluded the
right of free disposition from the "rights and attributes of ownership" that she reserved for
herself.chanroblesvirtualawlibrary chanrobles virtual law library
Hence, the Court below rightly concluded that the deed Exhibit A was a valid donationinter vivos,
with reservation of beneficial title during the lifetime of the donor. We may add that it is highly
desirable that all those who are called to prepare or notarize deeds of donation should call the
attention of the donors to the necessity of clearly specifying whether, notwithstanding the donation,
they wish to retain the right to control and dispose at will of the property before their death, without
need of the consent or intervention of the beneficiary, since the express reservation of such right
would be conclusive indication that the liberality is to exist only at the donor's death, and therefore,
the formalities of testaments should be observed; while, a converso, the express waiver of the right
of free disposition would place the inter vivos character of the donation beyond dispute (Heirs of
Bonsato vs. Court of Appeals, 50 Off. Gaz. (8), p. 3568).chanroblesvirtualawlibrary chanrobles
virtual law library
The argument that there was no sufficient acceptance, because the deed "merely recites that (1) the
donee has duly read all the contents of this donation; (2) that he 'shall fully respect all its terms';
and (3) that 'for the act of benevolence' he is expressing his gratitude" but there is no show of
acceptance (Appellant's brief, p. 7), is without basis. To respect the terms of the donation, and at
the same time express gratitude for the donor's benevolence, constitutes sufficient acceptance, If
the donee did not accept, what had he to be grateful about? We are no longer under the formulary
system of the Roman law, when specific expressions had to be used under paid of
nullity.chanroblesvirtualawlibrary chanrobles virtual law library
Also unmeritoriious is the contention that the donation is void because the donor failed to reserve
enough for ther own support. As we have seen, she expressly reserved to herself all the benefits
derivable from the donated property as long as she lived. During that time, she suffered no
diminution of income. If that was not enough to support her, the deficiency was not dur to the
donation.chanroblesvirtualawlibrary chanrobles virtual law library
Finally, the donee is not rightfully chargeaboe with ingratitude, because it was expressly stipulated
that the donee had a total income of only P30 a month, out of which he had to support himself, his
wife and his two children. Evidently his means did not allow him to add the donor's support to his
own burdens.chanroblesvirtualawlibrary chanrobles virtual law library
Wherefore, the decision appealed from is affirmed. No costs in this instance, appellant having
obtained leave to litigate as a pauper. So ordered.chanroblesvirtualawlibrary chanrobles virtual
law library
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and
Concepcion, JJ., concur. chanrobles virtual law library
G.R. No. L-26317
Estate
FRANCISCO
vs.

January 29, 1927

of

Miguel
GAGO,

Mamuyac,

deceased.
petitioner-appellant,

CORNELIO
MAMUYAC,
AMBROSIO
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor
Jose Rivera for appellees.

Tavora

for

LARIOSA,
appellant.

JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will and testament of Miguel
Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province
of La Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel
Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said
Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for
the probation of that will. The probation of the same was opposed by Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of
La Union). After hearing all of the parties the petition for the probation of said will was denied by
the Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased
had on the 16th day of April, 1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure
the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their
oppositions, alleging (a) that the said will is a copy of the second will and testament executed by
the said Miguel Mamuyac; (b) that the same had been cancelled and revoked during the lifetime
of Miguel Mamuyac and (c) that the said will was not the last will and testament of the deceased
Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the
respective parties, denied the probation of said will of April 16, 1919, upon the ground that the
same had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the
evidence adduced, found that the following facts had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the possession of the deceased
testator Miguel Mamuyac, who revoked it before his death as per testimony of witness Jose Fenoy,
who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30,
1920, the original Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac,
who assured Carlos Bejar that inasmuch as he had sold him a house and the land where the house
was built, he had to cancel it (the will of 1919), executing thereby a new testament. Narcisa Gago
in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by the deceased
(Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The
opponents have successfully established the fact that father Miguel Mamuyac had executed in
1920 another will. The same Narcisa Gago, the sister of the deceased, who was living in the house
with him, when cross-examined by attorney for the opponents, testified that the original Exhibit A
could not be found. For the foregoing consideration and for the reason that the original of Exhibit
A has been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of
Exhibit A for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from the evidence
that the will in question had been executed with all the formalities required by the law; that the

same had been revoked and cancelled in 1920 before his death; that the said will was a mere carbon
copy and that the oppositors were not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof, not denied,
which was accepted by the lower court, that will in question had been cancelled in 1920. The law
does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore
becomes difficult at times to prove the revocation or cancellation of wills. The fact that such
cancellation or revocation has taken place must either remain unproved of be inferred from
evidence showing that after due search the original will cannot be found. Where a will which
cannot be found is shown to have been in the possession of the testator, when last seen, the
presumption is, in the absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator had ready access to the
will and it cannot be found after his death. It will not be presumed that such will has been destroyed
by any other person without the knowledge or authority of the testator. The force of the
presumption of cancellation or revocation by the testator, while varying greatly, being weak or
strong according to the circumstances, is never conclusive, but may be overcome by proof that the
will was not destroyed by the testator with intent to revoke it.
In view of the fat that the original will of 1919 could not be found after the death of the testator
Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced
to the conclusion that the conclusions of the lower court are in accordance with the weight of the
evidence. In a proceeding to probate a will the burden of proofs is upon the proponent clearly to
establish not only its execution but its existence. Having proved its execution by the proponents,
the burden is on the contestant to show that it has been revoked. In a great majority of instances in
which wills are destroyed for the purpose of revoking them there is no witness to the act of
cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of
wills should be admitted by the courts with great caution. When it is proven, however, by proper
testimony that a will was executed in duplicate and each copy was executed with all the formalities
and requirements of the law, then the duplicate may be admitted in evidence when it is made to
appear that the original has been lost and was not cancelled or destroyed by the testator.
(Borromeo vs. Casquijo, G.R. No. L-26063.)1
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 and Villa-Real, JJ., concur.
G.R. Nos. L-3087 and L-3088

July 31, 1954

In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitionerappellant,
vs.
In
re:
Intestate
Estate
of
the
deceased
JOSE
B.
SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro
M.
Sison and Aruego for appellee.
PADILLA, J.:

Recto

for

appellant.

This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged
will and testament executed in Manila on November 1929, and the alleged last will and testament
executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The value of the estate
left by the deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city
of Amoy, Fookien province, Republic of China, leaving real and personal properties in the
Philippines and a house in Amoy, Fookien province, China, and children by the first marriage had
with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana,
Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the second marriage had with Maria
Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court of First
Instance of Bulacan (special proceedings No. 4892) and after hearing letters of administration were
issued to Apolonio Suntay. After the latter's death Federico C. Suntay was appointed administrator
of the estate. On 15 October 1934 the surviving widow filed a petition in the Court of First Instance
of Bulacan for the probate of a last will and testament claimed to have been executed and signed
in the Philippines on November 1929 by the late Jose B. Suntay. This petition was denied because
of the loss of said will after the filing of the petition and before the hearing thereof and of the
insufficiency of the evidence to establish the loss of the said will. An appeal was taken from said
order denying the probate of the will and this Court held the evidence before the probate court
sufficient to prove the loss of the will and remanded the case to the Court of First Instance of
Bulacan for the further proceedings (63 Phil., 793). In spite of the fact that a commission from the
probate court was issued on 24 April 1937 for the taking of the deposition of Go Toh, an attesting
witness to the will, on 7 February 1938 the probate court denied a motion for continuance of the
hearing sent by cablegram from China by the surviving widow and dismissed the petition. In the
meantime the Pacific War supervened. After liberation, claiming that he had found among the
files, records and documents of his late father a will and testament in Chinese characters executed
and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated
in the Amoy district court, Province of Fookien, China, Silvino Suntay filed a petition in the
intestate proceedings praying for the probate of the will executed in the Philippines on November
1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N).
There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria
Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign
will because of the transfer or assignment of their share right, title and interest in the estate of the
late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goo and
the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to
Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in this
proceedings which is concerned only with the probate of the will and testament executed in the
Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4 January
1931 and claimed to have been probated in the municipal district court of Amoy, Fookien province,
Republic of China.
As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no
bar to the filing of this petition on 18 June 1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the execution and validity of the same be
established, and the will is proved to have been in existence at the time of the death of the testator,

or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator
without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two
credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and
certified by the judge, under the seal of the court, and the certificate must be filed and recorded as
other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness,
Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost will,
was dead at the time of the hearing of this alternative petition. In his deposition Go Toh testifies
that he was one of the witnesses to the lost will consisting of twenty-three sheets signed by Jose
B. Suntay at the bottom of the will and each and every page thereof in the presence of Alberto
Barretto, Manuel Lopez and himself and underneath the testator's signature the attesting witnesses
signed and each of them signed the attestation clause and each and every page of the will in the
presence of the testator and of the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th
and 63rd interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the
11th interrogatory, Id.); that he knew the contents of the will written in Spanish although he knew
very little of that language (answers to the 22nd and 23rd interrogatories and to X-2 crossinterrogatory, Id.) and all he knows about the contends of the lost will was revealed to him by Jose
B. Suntay at the time it was executed (answers to the 25th interrogatory and to X-4 and X-8 crossinterrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as those of
the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory, Id.) which
he saw in the office of Alberto Barretto in November 1929 when the will was signed (answers to
the 69th, 72nd, and 74th interrogatories,Id); that Alberto Barretto handed the draft and said to Jose
B. Suntay: "You had better see if you want any correction" (answers to the 81st, 82nd and 83rd
interrogatories, Id.); that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had
the original signed and executed" (answers to the 91st interrogatory, and to X-18 crossinterrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese
and he read the translation (answers to the 67th interrogatory, Id.); that he did not read the will and
did not compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 crossinterrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay
she learned that her father left a will "because of the arrival of my brother Manuel Suntay, who
was bringing along with him certain document and he told us or he was telling us that it was the
will of our father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing of 24
February 1948); that she saw her brother Apolonio Suntay read the document in her presence and
of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: onethird to his children, one-third to Silvino and his mother and the other third to Silvino, Apolonio,
Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that portion,
then he turned over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On crossexamination, she testifies that she read the part of the will on adjudication to know what was the
share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she saw the signature
of her father, Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January
1948), before the last postponement of the hearing granted by the Court, Go Toh arrived at his law
office in the De los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C]
(p. 32, t. s. n., hearing of 13 October 1947); that he checked up the signatures on the envelope

Exhibit A with those on the will placed in the envelope (p. 33, t. s. n.,Id.); that the will was exactly
the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned
by the latter to the former because they could not agree on the amount of fees, the former coming
to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that brought
him to the Philippines from Amoy, and that delivery took place in November 1934 (p. 273, t. s.
n., Id.), then the testimony of Ana Suntay that she saw and heard her brother Apolonio Suntay read
the will sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be
true.
Although Ana Suntay would be a good witness because she was testifying against her own interest,
still the fact remains that she did not read the whole will but only the adjudication (pp. 526-8, 5301, 542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go Toh, Manuel
Lopez and Alberto Barretto (p. 546, t. s. n.,Id.). But her testimony on cross-examination that she
read the part of the will on adjudication is inconsistent with her testimony in chief that after
Apolonio had read that part of the will he turned over or handed the document to Manuel who
went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929
when the will was signed, then the part of his testimony that Alberto Barretto handed the draft to
Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after
checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed"
cannot be true, for it was not the time for correcting the draft of the will, because it must have been
corrected before and all corrections and additions written in lead pencil must have been inserted
and copied in the final draft of the will which was signed on that occasion. The bringing in for the
draft (Exhibit B) on that occasion is just to fit it within the framework of the appellant's theory. At
any rate, all of Go Toh's testimony by deposition on the provisions of the alleged lost will is
hearsay, because he came to know or he learned to them from information given him by Jose B.
Suntay and from reading the translation of the draft (Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the
supposed will or the alleged will of his father and that the share of the surviving widow, according
to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But this witness
testified to oppose the appointment of a co-administrator of the estate, for the reason that he had
acquired the interest of the surviving widow not only in the estate of her deceased husband but
also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original
will or just the copy thereof (Exhibit B) is not clear. For him the important point was that he had
acquired all the share, participation and interest of the surviving widow and of the only child by
the second marriage in the estate of his deceased father. Be that as it may, his testimony that under
the will the surviving widow would take two-thirds of the estate of the late Jose B. Suntay is at
variance with Exhibit B and the testimony of Anastacio Teodoro. According to the latter, the third
for strict legitime is for the ten children; the third for betterment is for Silvino, Apolonio,
Concepcion and Jose Jr.; and the third for free disposal is for the surviving widow and her child
Silvino.
Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope
(Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the
testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of

the lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible
witnesses mean competent witnesses and those who testify to facts from or upon hearsay are
neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up
two mills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his own
handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that after
checking up the final with the rough draft he tore it and returned the final draft to Manuel Lopez;
that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n., hearing of 21
February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the
former asked him to draw up another will favoring more his wife and child Silvino; that he had the
rough draft of the second will typed (pp. 395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396,
t. s. n., Id.); that he did not sign as witness the second will of Jose B. Suntay copied from the
typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or additions in
lead pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft of the
first will made up of four or five pages (p. 400, t. s. n., Id.) was signed and executed, two or three
months after Suntay and Lopez had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at
the Cebu Portland Cement in the China Banking Building on Dasmarias street by Jose B. Suntay,
Manuel Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that
occasion they brought an envelope (Exhibit A) where the following words were written:
"Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of the will it was
placed inside the envelope (Exhibit A) together with an inventory of the properties of Jose B.
Suntay and the envelope was sealed by the signatures of the testator and the attesting witnesses
(pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his house
one Saturday in the later part of August 1934, brought by Go Toh and it was then in perfect
condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the following Monday Go Toh went to his
law office bringing along with him the envelope (Exhibit A) in the same condition; that he told Go
Toh that he would charge P25,000 as fee for probating the will (pp. 406, 440-2, Id.); that Go Toh
did not leave the envelope (Exhibit A) either in his house or in his law office (p. 407, t. s. n., Id.);
that Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him (pp. 409, 410,
t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the
complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope (Exhibit
A), corroborates the testimony of Alberto Barretto to the effect that only one will was signed by
Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh took part
as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same assistant fiscal
that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said,
quoting his own words, "Because I can not give him this envelope even though the contract (on
fees) was signed. I have to bring that document to court or to anywhere else myself." (p. 27, t. s.
n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the
point in Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign country, according to the laws of such country, may be
allowed, filed, and recorded by the proper Court of First Instance in the Philippines.
Section 2 provides:

When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for
allowance in the Philippines, by the executor or other person interested, in the court having
jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be
given as in case of an original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the Philippines, the court shall so
allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the
courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and
the will shall have the same effect as if originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China, is a probate court must be proved. The
law of China on procedure in the probate or allowance of wills must also be proved. The legal
requirements for the execution of a valid will in China in 1931 should also be established by
competent evidence. There is no proof on these points. The unverified answers to the questions
propounded by counsel for the appellant to the Consul General of the Republic of China set forth
in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart
from the fact that the office of Consul General does not qualify and make the person who holds it
an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse
party would be deprived of his right to confront and cross-examine the witness. Consuls are
appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the
municipal district court of Amoy were for the purpose of taking the testimony of two attesting
witnesses to the will and that the order of the municipal district court of Amoy does not purport to
probate the will. In the absence of proof that the municipal district court of Amoy is a probate court
and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings
in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a
perpetuation of testimony, and even if it were so it does not measure same as those provided for in
our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal
notice or by publication or both to all interested parties must be made. The interested parties in the
case were known to reside in the Philippines. The evidence shows that no such notice was received
by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24
February 1948). The proceedings had in the municipal district court of Amoy, China, may be
likened toe or come up to the standard of such proceedings in the Philippines for lack of notice to
all interested parties and the proceedings were held at the back of such interested parties.
The order of the municipal district court of Amoy, China, which reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed by the interrogated parties, who declare that there
are no errors, after said minutes were loudly read and announced actually in the court.
Done and subscribed on the Nineteenth day of the English month of the 35th year of the Republic
of China in the Civil Section of the Municipal District Court of Amoy, China.
HUANG
KUANG
Clerk of Court

CHENG

CHIANG
Judge

TENG

HWA

(Exhibit N-13, p. 89 Folder of Exhibits.).

does not purport to probate or allow the will which was the subject of the proceedings. In view
thereof, the will and the alleged probate thereof cannot be said to have been done in accordance
with the accepted basic and fundamental concepts and principles followed in the probate and
allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal
district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the
probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed
and recorded by a competent court of this country.
The decree appealed from is affirmed, without pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.

Separate Opinions
PARAS, C.J., dissenting:
As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian, petitioner
and appellant, vs.Apolonio Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay, oppositors
and appellees, 63 Phil., 793-797, in which the following decision was rendered by this Court on
November 25, 1936, holding that the will executed by Jose B. Suntay who died in the City of
Amoy, China, on May 14, 1934, was lost under the circumstances pointed out therein, and ordering
the return of the case to the Court of First Instance of Bulacan for further proceedings:
On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the first time
to Manuela T. Cruz with whom he had several children now residing in the Philippines, and the
second time to Maria Natividad Lim Billian with whom he had a son.
On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his first marriage,
filed the latter's intestate in the Court of First Instance of Manila (civil case No. 4892).
On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted the present
proceedings for the probate of a will allegedly left by the deceased.
According to the petitioner, before the deceased died in China he left with her a sealed envelope
(Exhibit A) containing his will and, also another document (Exhibit B of the petitioner) said to be
a true copy of the original contained in the envelope. The will in the envelope was executed in the
Philippines, with Messrs. Go Toh, Alberto Barretto and Manuel Lopez as attesting witnesses. On
August 25, 1934, Go Toh, as attorney-in-fact of the petitioner, arrived in the Philippines with the
will in the envelope and its copy Exhibit B. While Go Toh was showing this envelope to Apolonio
Suntay and Angel Suntay, children by first marriage of the deceased, they snatched and opened it
and, after getting its contents and throwing away the envelope, they fled.
Upon this allegation, the petitioner asks in this case that the brothers Apolonio, Angel, Manuel and
Jose Suntay, children by the first marriage of the deceased, who allegedly have the document

contained in the envelope which is the will of the deceased, be ordered to present it in court, that
a day be set for the reception of evidence on the will, and that the petitioner be appointed executrix
pursuant to the designation made by the deceased in the will.
In answer to the court's order to present the alleged will, the brothers Apolonio, Angel, Manuel
and Jose Suntay stated that they did not have the said will and denied having snatched it from Go
Toh.
In view of the allegations of the petition and the answer of the brothers Apolonio, Angel, Manuel
and Jose Suntay, the questions raised herein are: The loss of the alleged will of the deceased,
whether Exhibit B accompanying the petition is an authentic copy thereof, and whether it has been
executed with all the essential and necessary formalities required by law for its probate.
At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the stand, Go Toh
and Tan Boon Chong, who corroborated the allegation that the brothers Apolonio and Angel
appropriated the envelope in the circumstances above-mentioned. The oppositors have not
adduced any evidence counter to the testimony of these two witnesses. The court, while making
no express finding on this fact, took it for granted in its decision; but it dismissed the petition
believing that the evidence is insufficient to establish that the envelope seized from Go Toh
contained the will of the deceased, and that the said will was executed with all the essential and
necessary formalities required by law for its probate.
In our opinion, the evidence is sufficient to establish the loss of the document contained in the
envelope. Oppositors' answer admits that, according to Barretto, he prepared a will of the deceased
to which he later become a witness together with Go Toh and Manuel Lopez, and that this will
was placed in an envelope which was signed by the deceased and by the instrumental witnesses.
In court there was presented and attached to the case an open and empty envelope signed by Jose
B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is thus undeniable that this envelope
Exhibit A is the same one that contained the will executed by the deceased-drafted by Barretto and
with the latter, Go Toh and Manuel Lopez as attesting witnesses. These tokens sufficiently point
to the loss of the will of the deceased, a circumstance justifying the presentation of secondary
evidence of its contents and of whether it was executed with all the essential and necessary legal
formalities.
The trial of this case was limited to the proof of loss of the will, and from what has taken place we
deduce that it was not petitioner's intention to raise, upon the evidence adduced by her, the other
points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a true copy
of the will and whether the latter was executed with all the formalities required by law for its
probate. The testimony of Alberto Barretto bears importantly in this connection.
Wherefore, the loss of the will executed by the deceased having been sufficiently established, it is
ordered that this case be remanded to the court of origin for further proceedings in obedience to
this decision, without any pronouncement as to the costs. So ordered
On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the Court of First
Instance of Bulacan praying "that an order be issued (a) either directing the continuation of the
proceedings in the case remanded by the Supreme Court by virtue of its decision in G. R. No.
44276 and fixing a date for the reception of evidence of the contents of the will declared lost, or
the allowance, filing and recording of the will of the deceased which had been duly probated in
China, upon the presentation of the certificates and authentications required by Section 41, Rule

123 (Yu Chengco vs. Tiaoqui supra), or both proceedings concurrently and simultaneously; (b)
that letters of administration be issued to herein petitioner as co-administrator of the estate of the
deceased together with Federico Suntay; and (c) that such other necessary and proper orders be
issued which this Honorable Court deems appropriate in the premises." While this petition was
opposed by Federico C. Suntay, son of the deceased Jose B. Suntay with his first wife, Manuela
T. Cruz, the other children of the first marriage, namely, Ana Suntay, Aurora Suntay, Concepcion
Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay and Emiliano Suntay, filed the following
answer stating that they had no opposition thereto; "Come now the heirs Concepcion Suntay, Ana
Suntay, Aurora Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay, and Emiliano Suntay,
through their undersigned attorney, and, in answer to the alternative petition filed in these
proceedings by Silvino Suntay, through counsel, dated June 18, 1947, to this Honorable Court
respectfully state that, since said alternative petition seeks only to put into effect the testamentary
disposition and wishes of their late father, they have no opposition thereto."
After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the following
decision:
This action is for the legalization of the alleged will of Jose B. Suntay, deceased.
In order to have a comprehensive understanding of this case, it is necessary to state the background
on which the alternative petition of the herein petitioner Silvino Suntay has been based.
The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B. Suntay, 63 Phil.,
793-797, is hereunder produced:
(As quoted above)
The above quoted decision of the Supreme Court was promulgated on November 25, 1936 (Exhibit
O).
The Clerk of the Court of Court of First Instance of Bulacan notified the parties of the decision on
December 15, 1936; and the case was set for hearing on February 12, 1937, but it was transferred
to March 29, 1937 (Exhibit O), on motion of the then petitioner Maria Natividad Lim Billian
(Exhibit F). Again, it was postponed until "further setting" in the order of court dated March 18,
1937, upon motion of the petitioner (Exhibit H).
In the meantime, the deposition of Go Toh was being sought (Exhibit H).
The hearing of the case was again set for February 7, 1936, by order of the court dated January 5,
1938, upon motion of Emiliano Suntay and Jose Suntay, Jr. On the same day of the hearing which
had been set, the petitioner, then, Maria Natividad Lim Billian, sent a telegram from Amoy, China,
addressed to the Court of First Instance of Bulacan moving for the postponement of the hearing
on the ground that Atty. Eriberto de Silva who was representing her died (Exhibit K). The court,
instead of granting the telegraphic motion for postponement, dismissed the case in the order dated
February 7, 1938 (Exhibit L).
On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of the intestate
Estate of the deceased Jose B. Suntay, Special Proceeding No. 4892 and the Testate Estate of Jose
B. Suntay, Special Proceeding No. 4952, which latter case is the subject of the said alternative
petition. The motion for the merger and consolidation of the two cases was granted on July 3,
1947.

That oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to dismiss the
alternative petition on November 14, 1947, which was denied by the court in its resolution of
November 22, 1947. The said oppositor not being satisfied with the ruling of this court denying
the motion to dismiss, filed before the Supreme Court a petition for a writ of certiorari with
preliminary injunction, which was dismissed for lack of merit on January 27, 1948.
In obedience to the decision of the Supreme Court (Exhibit O) and upon the alternative petition of
Silvino Suntay, and, further, upon the dismissal of the petition for a writ of certiorari with
preliminary injunction, the court was constrained to proceed with the hearing of the probate of the
lost will, the draft of which is Exhibit B, or the admission and recording of the will which had been
probated in Amoy, China.
The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married twice; first to
Manuela T. Cruz who died on June 15, 1920 and had begotten with her Apolonio, now deceased,
Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr., all surnamed Suntay,
and second, to Maria Natividad Lim Billian with whom he had as the only child Silvino Suntay,
the petitioner herein.
Some time in November 1929, Jose B. Suntay executed his last will and testament in the office of
Atty. Alberto Barretto in Manila, which was witnessed by Alberto Barretto, Manuel Lopez and Go
Toh. The will was prepared by said Alberto Barretto upon the instance of Jose B. Suntay, and it
was written in the Spanish language which was understood and spoken by said testator. After the
due execution of the will, that is signing every page and the attestation clause by the testator and
the witnesses in the presence of each other, the will was placed inside the envelope (Exhibit A),
sealed and on the said envelope the testator and the three subscribing witnesses also signed, after
which it was delivered to Jose B. Suntay.
A year or so after the execution of the will, Jose B. Suntay together with his second wife Maria
Natividad Lim Billian and Silvino Suntay who was then of tender age went to reside in Amoy,
Fookien, China, where he died on May 14, 1934. The will was entrusted to the widow, Maria
Natividad Lim Billian.
Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest son now deceased,
instituted the Intestate Proceedings No. 4892, upon the presumption that no will existed. Maria
Natividad Lim Billian who remained in Amoy, China, had with her the will and she engaged the
services of the law firm of Barretto and Teodoro for the probate of the will. Upon the request of
the said attorneys the will was brought to the Philippines by Go Toh who was one of the attesting
witnesses, and it was taken to the law office of Barretto and Teodoro. The law firm of Barretto and
Teodoro was composed of Atty. Alberto Barretto and Judge Anastacio Teodoro. The probate of
the will was entrusted to the junior partner Judge Anastacio Teodoro; and, upon the presentation
of the sealed envelope to him, he opened it and examined the said will preparatory to the filing of
the petition for probate. There was a disagreement as to the fees to be paid by Maria Natividad
Lim Billian, and as she (through Go Toh) could not agree to pay, P20,000 as fees, the will was
returned to Go Toh by Judge Anastacio Teodoro after the latter had kept it in his safe, in his office,
for three days.
Subsequently, the will inside the envelope was snatched from Go Toh by Manuel Suntay and Jose,
Jr., which fact has been established in the decision of the Supreme Court at the beginning of this
decision. Go Toh could recover the envelope (Exhibit A) and the piece of cloth with which the
envelope was wrapped (Exhibit C).

The Testate Proceeding was filed nevertheless and in lien of the lost will a draft of the will (Exhibit
B) was presented as secondary evidence for probate. It was disallowed by this court through Judge
Buenaventura Ocampo, but on appeal the Supreme Court remanded the case to this court for further
proceeding (Exhibit C).
In the meantime, a Chinese will which was executed in Amoy Fookien, China, on January 4, 1931,
by Jose B. Suntay, written in Chinese characters (Exhibit P) was discovered in Amoy, China,
among the papers left by Jose B. Suntay, and said will had been allowed to probate in the Amoy
District Court, China, which is being also presented by Silvino Suntay for allowance and recording
in this court.
The said petition is opposed by Federico C. Suntay on the main ground that Maria Natividad Lim
Billian and Silvino Suntay have no more interest in the properties left by Jose B. Suntay, because
they have already sold their respective shares, interests and participations. But such a ground of
opposition is not of moment in the instant case, because the proposition involved herein in the
legalization of the lost will or the allowance and recording of the will which had been probated in
Amoy, China.
It is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay,
deceased, left a will (the draft of which is Exhibit B) and another will which was executed and
another will which was executed and probated in Amoy, China.
There is no longer any doubt that Jose B. Suntay while he was still residing in the Philippines, had
executed a will; such is the conclusion of the Supreme Court in its decision (Exhibit O). That the
will was snatched and it has never been produced in court by those who snatched it, and
consequently considered lost, is also an established fact.
The contention of the oppositor, Federico C. Suntay, is that the will that was executed by Jose B.
Suntay in the Philippines contained provisions which provided for equal distribution of the
properties among the heirs; hence, the draft (Exhibit B) cannot be considered as secondary
evidence, because it does not provide for equal distribution, but if favors Maria Natividad Lim
Billian and Silvino Suntay. He relies on the testimony of Atty. Alberto Barretto who declared that
the first will which he drafted and reduced into a plain copy was the will that was executed by Jose
B. Suntay and placed inside the envelope (Exhibit A).
Granting that the first will which Atty. Alberto Barretto had drafted became the will of Jose B.
Suntay and it was snatched by, and, therefore, it had fallen into the hands of, Manuel Suntay and
the brothers of the first marriage, it stands to reason that said Manuel Suntay and brothers would
have been primarily interested in the production of said will in court, for obvious reasons, namely,
that they would have been favored. But it was suppressed and "evidence willfully suppressed
would be adverse if produced" (Section 69 (e), Rule 123 of the Rules of Court). The contention,
therefore, that the first will which was drafted by Atty. Barretto was the one placed inside the
envelope (Exhibit A) is untenable.
It might be said in this connection that the draft of the will (Exhibit B) has been admitted by Atty.
Alberto Barretto as identical in substance and form to the second draft which he prepared in
typewriting; it differs only, according to him, in style. He denied that the insertions in long hand
in the said draft are in his own handwriting; however, Judge Anastacio Teodoro averred that the
said insertions are the handwriting of Atty. Alberto Barretto. But when Atty. Alberto Barretto was
asked to show any manuscript of his for purposes of comparison, he declined to do so alleging that

he did not have any document in his possession showing his handwriting notwithstanding the fact
that he was testifying in his own house at 188 Sta. Mesa Boulevard, Manila. He further testified
that the first will be drafted contained four or five pages, but the second draft contained twentythree pages; that he declared in one breath that he did not read the will any more when it was signed
by the testator and the attesting witnesses because it would take up much time, and in the same
breath he declared that he checked it before it was signed; and that he destroyed the draft of the
first will which was in his own handwriting, but he delivered the draft of the second will which he
prepared to Jose B. Suntay in the presence of Manuel Lopez, now deceased.
Whether or not the final plain copy of the draft of the will (Exhibit B) was executed by the testator,
Jose B. Suntay, and attested by the subscribing witnesses, Atty. Alberto Barretto, Manuel Lopez
and Go Toh, is the pivotal point in this instant case. Judge Anastacio Teodoro testified that he
opened the sealed envelope when it was given to him by Go Toh preparatory to the presentation
of the petition for the probate of the said will. As the lawyer entrusted with that task, he had to
examine the will and have it copied to be reproduced or appended to the petition. He could not do
otherwise if he is worth salt as a good lawyer; he could not perform the stunt of "blind flying" in
the judicial firmament. Every step must be taken with certainty and precision under any
circumstances. He could not have talked about the attorney's fees with Go Toh, unless he has not
examined the will beforehand. And, declaring that it was the exact draft of the will that was inside
the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the contrary notwithstanding.
The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting
witnesses, in his deposition (Exhibit D-1).
Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will
in question, also testified on rebuttal that she saw the original will in the possession of Manuel
Suntay, immediately after the snatching. She read it and she particularly remembers the manner in
which the properties were to be distributed. Exhibit B was shown to her on the witness stand and
she declared that the provision regarding the distribution of the properties in said Exhibit B is the
same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies the
testimony of Atty. Alberto Barretto.
With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as follows:
"No will shall be proved as a lost or destroyed will unless the execution and validity of the same
be established, and the will is proved to have been in existence at the time of the death of the
testator, or it is shown to have been fraudulently or accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at
least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly
stated and certified by the judge, under the seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded."
Section 8 of the same Rule provides as follows:
"If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or
that none of them resides in the Philippines the court may admit the testimony of other witnesses
to prove the sanity of the testator, and the due execution of the will; and as evidence of the due
execution of the will, it may admit proof of the handwriting of the testator and of the subscribing
witnesses, or any of them."

Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto and Go Toh are
still living. The former testified during the hearing, while Go Toh's deposition was introduced in
evidence which was admitted. In the absence of the testimony of Manuel Lopez, deceased, the
testimony of Judge Anastacio Teodoro and Ana Suntay was received.
It is an established fact that the will, draft of which is Exhibit B, was lost or destroyed; that it was
executed and valid and that it existed at the time of the death of Jose B. Suntay. These
circumstances also apply to the will (Exhibit P) which was executed in Amoy, China.
The contents of the Chinese will is substantially the same as the draft (Exhibit B). Granting that
the will executed in the Philippines is non-existent as contended by the oppositor, although the
findings of this court is otherwise, the will executed and probated in China should be allowed and
recorded in this court. All the formalities of the law in China had been followed in its execution,
on account of which it was duly probated in the Amoy District Court. There is no cogent reason,
therefore, why it should not be admitted and recorded in this jurisdiction.
The said will (Exhibit P) in Chinese characters is presented as an alternate in case the will executed
in the Philippines would not be allowed to probate, or as a corroborative evidence that the will, the
draft of which is Exhibit B, has been duly executed in the Philippines by Jose B. Suntay.
Rule 78 of the Rules of Court covers the allowance of will proved outside of the Philippines and
administration of estate thereunder.
Section 1 of said rule provides:
"Wills proved and allowed in the United States, or any state or territory thereof, or in foreign
country, according to the laws of such state, territory, or country, may be allowed, filed, and
recorded by the proper Court of First Instance in the Philippines."
Section 2 of the same rule provides:
"When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition
for allowance in the Philippines, by the executor or other person interested, in the court having
jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be
given as in case of an original will presented for allowance."
This court has delved deep into the evidence adduced during the hearing with that penetrating
scrutiny in order to discovery the real facts; it had used unsparingly the judicial scapel; and it has
winnowed the evidenced to separate the grain from the chaff. All the facts lead to the inevitable
conclusion that Jose B. Suntay, in his sound and disposing mind and not acting under duress or
undue influence, executed the will which is lost, the draft of which is Exhibit B, with all the
necessary formalities prescribed by law. He, likewise, executed the second will (Exhibit P) in
Amoy, China, which has been duly probated in Amoy District Court,-a corroborative evidence that
the testator really executed the will. Copies of the said wills duly certified and under the seal of
the court are appended hereto, marked Exhibits B and P, and they form part of this decision.
In view of the foregoing considerations, the court is of the opinion and so declares that the draft of
the will (Exhibit B) is, to all legal intents and purposes, and testament of the deceased Jose B.
Suntay. With costs against the oppositor, Federico C. Suntay.
Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside the
decision rendered on April 19, 1948, to which the petitioner filed an opposition, followed by a
reply filed by the oppositor and an answer on the part of the petitioner. Without reopening the case

and receiving any new or additional evidence, the Court of First Instance of Bulacan, on September
29, 1948, promulgated the following resolution setting aside his first decision and disallowing the
wills sought to be probated by the petitioner in his alternative petition filed on June 18, 1947:
This is a motion for new trial and to set aside the decision legalizing the will of Jose B. Suntay and
allowing and recording another will executed by him in Amoy, China.
By virtue of this motion, this court is constrained to go over the evidence and the law applicable
thereto with the view of ascertaining whether or not the motion is well founded. Both parties have
presented extensive memoranda in support of their respective contentions.
This court has gone over the evidence conscientiously, and it reiterates its findings of the same
facts in this resolution, whether or not the facts established by the petitioner, Silvino Suntay,
warrant the legalization of the lost will and the allowance and recording of the will that was
executed in Amoy, China, is therefore, the subject of this instant motion.
A. As to the legalization of the Lost Will. There is no question in the mind of this court that the
original will which Jose B. Suntay, deceased executed in the Philippines in the year 1929 was lost
(Exhibit O, Decision of the Supreme Court). The evidence adduced by the petitioner during the
hearing has established through the testimony of Judge Anastacio Teodoro and that of Go Toh (an
attesting witness) that the will was executed by Jose B. Suntay, deceased, with all the formalities
required by law. For the purpose of legalizing an original and existing will, the evidence on record
is sufficient as to the execution and attesting in the manner required by law.
Section 8 of Rule 77 provides as follows:
"SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines. If it appears
at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of
them resides in the Philippines, the court may admit the testimony of other witnesses to prove the
sanity of the testator, and the due execution of the will; and as evidence of the execution of the
will, may admit proof of the handwriting of the testator and of the subscribing witnesses, or any
of them."
Section 11 of said rule also provides as follows:
"SEC. 11. Subscribing witnesses produced or accounted for where contest. If the will is
contested, all the subscribing witnesses 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 the subscribing witnesses are present in the Philippines, but outside the
province where the will has been filed, their deposition must be taken. If all or some of the
subscribing witnesses produced and examined 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 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."
The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and Go Toh. The last
two witnesses are still living; the former testified against and the latter in favor. In other words,
the attesting witness, Go Toh, only, testified in his deposition in favor of the due execution of the
will. Hence, the petitioner presented another witness, Judge Anastacio Teodoro, to establish and
prove the due execution of the said will. Ana Suntay was also presented as a witness in rebuttal
evidence. The testimony of Go Toh in his deposition as an attesting witness, coupled with the
testimony of Judge Anastacio Teodoro who was able to examine the original will that was executed

by Jose B. Suntay, deceased, when it was given to him by Go Toh for the purpose of filing the
petition in court for its legalization, and could recognize the signatures of the testator as well as of
the three attesting witnesses on the said original will is sufficient to convince the court that the
original will was executed by the deceased Jose B. Suntay with all the formalities required by law.
The original will, therefore, if it was presented in court to probate would be allowed to all legal
intents and purposes. But it was not the original will that was presented, because it was lost, but
an alleged draft (Exhibit B) of the said original will which does not bear the signature of the testator
and any of the attesting witness. The original will was duly executed with all the formalities
required by law, but it was unfortunately lost; and the curtain falls for the next setting.
The Court is now confronted with the legalization of the lost will whether or not the draft
(Exhibit B) should be admitted as secondary evidence in lieu of the lost will and allowed to probate.
Section 6. Rule 77 provides as follows:
"SEC. 6. Proof of lost or destroyed will Certificate thereupon. No will shall be proved as a
lost will or destroyed will unless the execution and validity of the same be established, and the will
is proved to have been in existence at the time of the death of the testator, or is shown to have been
fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor
unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a
lost will is proved, the provisions thereof must be distinctly stated and certified by the Judge, under
the seal of the court and the certificate must be filed and recorded as other wills are filed and
recorded." (Emphasis Court's)
From the above quoted provision of the law, it is clear that the petitioner should not only establish
the execution and validity of the will, its existence at the time of the death of the testator or its
fraudulent and accidental destruction in the lifetime of the testator without his knowledge, but also
must prove its provisions clearly and distinctly by at least two credible witnesses. The exact
language of the clause in the above quoted provision of the law is "nor unless its provisions are
clearly and distinctly proved by at least two credible witnesses." The legalization of a lost will is
not so easy, therefore, as that of an original will. The question, therefore, is boiled down to, and
projected on the screen, in a very sharp focus; namely, the execution and validity must be
established and the provisions must be clearly and distinctly proved by at least credible witnesses.
Granting that the execution and validity of the lost will have been established through the
testimony of Judge Anastacio Teodoro and Go Toh, and perhaps superficially by the rebuttal
witness, Ana Suntay, does it follow that the provisions of the lost will have been clearly and
distinctly proved by at least two credible witnesses? A careful review of the evidence has revealed
that at most the only credible witness who testified as to the provisions of the will was Judge
Anastacio Teodoro, and yet he testified on the provisions of the lost will with the draft (Exhibit B)
in his hands while testifying. It may be granted, however, that with or without the draft of the will
(Exhibit B) in his hands, he could have testified clearly and distinctly on the provisions of the said
lost will, because he had kept the will in his safe, in his office, for three days, after opening it, and
he is well versed in Spanish language in which the will as written. But did the attesting witness Go
Toh, testify in his deposition and prove clearly and distinctly the provisions of the lost will? He
did not, and he could not have done so even if he tried because the original will was not read to
him nor by him before or at the signing of the same. It was written in Spanish and he did not and
does not understand the Spanish language. Neither was there any occasion for him to have the
contents of the said will, after its execution and sealing inside the envelope (Exhibit A), read to

him because it was opened only when Judge Teodoro had examined it and then subsequently
snatched from Go Toh. Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the
provisions of the said lost will because she has not had enough schooling and she does possess
adequate knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog
on the witness standing.
It is evident, therefore, that although the petitioner has established the execution and validity of
the lost will, yet he had not proved clearly and distinctly the provisions of the will by at least two
credible witnesses.
B. As to the Allowance and Recording of the will Executed in Amoy, China. Jose B. Suntay,
while he was residing in China during the remaining years of his life, executed also a will, written
in Chinese characters, the translation of which is marked Exhibit P. It was allowed to probate in
the District Court of Amoy, China. The question is whether or not the said will should be allowed
and recorded in this jurisdiction.
Section 1 of Rule 78 provides as follows:
"SEC. 1. Will proved outside Philippines any be allowed here. Will proved and allowed in the
United States, or any state or territory thereof, or in a foreign country, according to the laws of
such state, territory, or country, may be allowed, filed, and recorded by the proper court of First
Instance in the Philippines."
Section 2 of the same Rule also provides:
"SEC. 2. Notice of hearing for allowance. When a copy of such will and the allowance thereof,
duly authenticated, is filed with a petition for allowance in the Philippines by the executor or other
persons interested, in the Court having jurisdiction, such court shall fix a time and place for the
hearing, and cause notice thereof to be given as in case of an original will presented for allowance."
Sections 41 and 42 of Rule 123 provides as follows:
"SEC. 41. Proof of Public or official record. An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his deputy, and accompanied,
if the record is not kept in the Philippines, with a certificate that such officer has the custody. If
the office in which the record is kept is within the United States or its territory, the certificate may
be made by a judge of a court of record of the district or political subdivision in which the record
is kept, authenticated by the seal of the court, or may be made by any public officer having a seal
of the office and having official duties in the district or political subdivision in which the record is
kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign
country, the certificate may be made by a secretary of embassy or legation, consul general, consul,
vice consul, or consular agent or by any officer in the foreign service of the United States stationed
in the foreign country in which the record is kept, and authenticated by the seal of his office."
F. "SEC. 42. What attestation of copy must state. Whenever a copy of writing is attested for the
purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be. The attestation must be under the official
seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the
seal of such court."
In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court said:

"Section 637 of the Code of Civil Procedure says that will proved and allowed in a foreign country,
according to the laws of such country, may be allowed, filed, and recorded in the Court of First
Instance of the province in which the testator has real or personal estate on which such will may
operate; but section 638 requires that the proof of the authenticity of a will executed in a foreign
country must be duly "authenticated". Such authentication, considered as a foreign judicial record,
is prescribed by section 304, which requires the attestation of the clerk or of the legal keeper of
the records with the seal of the court annexed, if there be a seal, together with a certificate of the
chief judge or presiding magistrate that the signature of either of the functionaries attesting the will
is genuine, and, finally, the certification of the authenticity of the signature of such judge or
presiding magistrate, by the ambassador, minister, consul, vice consul or consular agent of the
United States in such foreign country. And, should the will be considered, from an administrative
point of view, as a mere official document 'of a foreign country', it may be proved, 'by the original,
or by a copy certified by the legal keeper thereof, with a certificate, under the seal of the country
or sovereign, that the document is a valid and subsisting document of such country, and that the
copy is duly certified by the officer having the legal custody of the original. (Sec. 313, par. 8)."
In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court said:
"It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on
November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West
Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as
found in West Virginia Code, Annotated, by Hogg, Charles E., Vol. 2, 1914, p. 1690, and as
certified to by the Director of the National Library. But this was far from compliance with the law.
The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the
Philippine Islands are not authorized to take judicial notice of the laws of the various States of the
American Union. Such laws must be proved as facts. (In re Estate of Johnson (1918), 39 Phil.,
156.) Here the requirements of the law were not met. There was not showing that the book from
which an extract was taken was printed or published under the authority of the State of West
Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the
law attested by the certificate of the officer having charge of the original under the seal of the State
of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was
introduced to show that the extract from the laws of West Virginia was in force at the time the
alleged will was executed.
"It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia
and not in the Philippine Islands. The only evidence introduced to establish this fact consisted of
the recitals in the alleged will and the testimony of the petitioner.
"While the appeal was pending submission in this court, the attorney for the appellant presented
an unverified petition asking the court to accept as part of the evidence the documents attached to
the petition. One of these documents discloses that a paper writing purporting to be the last will
and testament of Edward Randolph Hix, deceased, was presented for probate on June 8, 1929, to
the clerk of Randolph County, State of West Virginia, in vacation, and was duly proven by the
oaths of Dana Vansley and Joseph L. Madden, the subscribing witnesses thereto, and ordered to
be recorded and filed. It was shown by another document that in vacation, on June 8, 1929, the
clerk of court of Randolph County, West Virginia, appointed Claude E. Maxwell as
administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased ...
However this may be no attempt has been made to comply with the provisions of sections 637,

638, and 639 of the Code of Civil Procedure, for no hearing on the question of the allowance of a
will said to have been proved and allowed in West Virginia has been requested. ... ."
Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly done in
accordance with the law of the Republic of China on the matter, is it necessary to prove in this
jurisdiction the existence of such law in China as a prerequisite to the allowance and recording of
said will? The answer is in the affirmative as enunciated in Fluemer vs. Hix, supra, and in Yanez
de Barnuevo vs. Fuster, 29 Phil., 606. In the latter case, the Supreme Court said:
"A foreign law may be proved by the certificate of the officer having in charge of the original,
under the seal of the state or country. It may also be proved by an official copy of the same
published under the authority of the particular state and purporting to contain such law. (Secs. 300
and 301, Act No. 190.), (Syllabus.)
The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190) are as follows:
"SEC. 300. Printed laws of the State or Country. Books printed or published under the authority
of the United States, or one of the States of the United States, or a foreign country, and purporting
to contain statutes, codes, or other written law of such State or country or proved to be commonly
admitted in the tribunals of such State or country an evidence of the written law thereof, are
admissible in the Philippine Islands are evidence of such law."
"SEC. 301. Attested copy of foreign laws. A copy of the written law or other public writing of
any state or country, attested by the certificate of the officer having charge of the original, under
the seal of the state or country, is admissible as evidence of such law or writing."
The petitioner has presented in evidence the certification of the Chinese Consul General, Tsutseng
T. Shen, of the existence of the law in China (Exhibit B-3), relative to the execution and probate
of the will executed by Jose B. Suntay in Amoy, China (Exhibit P). Is that evidence admissible, in
view of the provisions of Sections 41 and 42 of the Rules of the Rules of Court. Is the said
certification of the Chinese Consul General in the Philippines a substantial compliance with the
provisions of the above mentioned section 41 and 42 of our Rules of Court?
This court has its doubts as to the admissibility in evidence of the Chinese Consul General in the
Philippines of the existence of the laws of Republic of China relative to the execution and probate
of a will executed in China. Such law may exist in China, but
"An official record or an entry therein, when admissible for any purpose, may be evidence by an
official publication thereof or by a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody. ... If the office in which the record is kept is in a foreign
country, the certificate may be made by a secretary of embassy or legation, consul general, consul,
vice consul, or consular agent or by any officer in the foreign service of the United States stationed
in the foreign country in which the record is kept, and authenticated by the seal of his office." (Sec.
41 of Rule 123.)
The law of the Republic of China is a public or official record and it must be proved in this
jurisdiction through the means prescribed by our Rules of Court. It is, therefore, obvious that the
Chinese Counsel General in the Philippines who certified as to the existence of such law is not
the officer having the legal custody of the record, nor is he a deputy of such officer. And, if the
office in which the record is kept is in a foreign country, the certificate may be made by a secretary
of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in

the foreign service of the United States stationed in the foreign country in which the record is kept,
and authenticated by the seal of his office.
It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec. 41) not having
been complied with, the doubt of this court has been dissipated, and it is of the opinion and so
holds that the certification of the Chinese Consul General alone is not admissible as evidence in
the jurisdiction.
The evidence of record is not clear as to whether Jose B. Suntay, who was born in China, but
resided in the Philippines for a long time, has become a Filipino citizen by naturalization, or he
remained a citizen of the Republic of China. The record does not, likewise, show with certainty
whether or not he had changed his permanent domicile from the Philippines to Amoy, China. His
change of permanent domicile could only be inferred. But the question of his permanent domicile
pales into insignificance in view of the overtowering fact that the law of China pertinent to the
allowance and recording of the said will in this jurisdiction has been satisfactorily established by
the petitioner.
Both the petitioner and the oppositor have extensively urged in their respective memorandum and
in the oral argument in behalf of the oppositor the question of estoppel. The consideration of the
points raised by them would open the door to the appreciation of the intrinsic validity of the
provisions of the will which is not of moment at the present stage of the proceeding. While the
probate of a will is conclusive as to the compliance with all formal requisites necessary to the
lawful execution of the will, such probate does not affect the intrinsic validity of the provisions of
the will. With respect to the latter the will in governed by the substantive law relative to descent
and distribution. (In re Johnson, 39 Phil., 157).
IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision rendered in
this case allowing the will (Exhibit B) and allowing and recording the foreign will (Exhibit P) is
set aside; and this court is of the opinion and so holds that the said two wills should be, as they are
hereby disallowed. Without special pronouncement as to costs.
It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan
"reiterates its finding of the same facts in this resolution," and merely proceeds to pose the sole
question "whether or not the facts established by the petitioner, Silvino Suntay, warrant the
legalization of the lost will and allowance and recording of the will that was executed in Amoy,
China." The somersault executed by the trial court is premised on the ground that "although the
petitioner has established the execution and validity of the lost will, yet he has not proved clearly
and distinctly the provisions of the will by the least two credible witnesses"; and that, assuming
that the will of Jose B. Suntay executed in Amoy, China, was in accordance with the law of the
Republic of China, the certification of the Chinese Consul General in the Philippines as the
existence of such law is not admissible evidence in this jurisdiction. In effect the resolution on the
motion for reconsideration promulgated by the trial court, and the decision of the majority herein,
adopt the position that the testimony of Judge Anastacio Teodoro as to the provisions of the lost
will, while credible and perhaps sufficient in extent, is not corroborated by the witnesses Go Toh
and Ana Suntay and, therefore, falls short of the requirement in section 6, Rule 77, of the Rules of
Court that the provisions of the lost will must be "clearly and distinctly proved by at least two
witnesses." That this requirement was obviously construed, to mean that the exact provisions are
to be established, may be deduced from the following dialogue between his Honor, Judge
Potenciano Pecson, and attorney Teofilo Sison, new counsel for oppositor Federico C. Suntay,

who appeared for the first time at the ex parte hearing of the oppositor's motion for new trial on
September 1, 1949:
COURT: However, Rule 77, Section 6, provides in proving a lost will, the provisions of the lost
will must be distinctly stated and certified by the Judge.
ATTY. TEOFILO SISON: Yes, Your Honor.
COURT: That presupposes that the judge could only certify to the exact provisions of the will
from the evidence presented.
ATTY. TEOFILO SISON: That is our contention, provided that provision is clearly established
by two credible witnesses so that the Court could state that in the decision, we agree, that is the
very point.
(t. s. n. 75, Session of Sept. 1, 1948)
The sound rule, however, as we have found it to be, as to the degree of proof required to establish
the contents of a lost or destroyed will, is that there is sufficient compliance if two witnesses have
substantiated the provisions affecting the disposition of the testator's properties; and this is
especially necessary to prevent the "perpetration of fraud by permitting a presumption to supply
the suppressed proof," to keep a wrong-doer from utilizing the rule as his "most effective weapon,"
or to avoid the enjoyment of a "premium from the rascality of one whose interests might suggest
the destruction of a will."
Section 1865 of the Code requires that the provisions of a lost will must be clearly and distinctly
proved by at least two credible witnesses before it can be admitted to probate; but this section must
receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-109) and its spirit is complied with by
holding that it applies only to those provisions which affect the disposition of the testator's property
and which are of the substance of the will.
The allegations of the contents of the will are general, and under ordinary circumstances, would
be in sufficient; but the fact alleged, if proven as alleged, would certainly authorize the
establishment of the will so far as its bequests are concerned. To require that a copy of the will or
the language of the bequests, in detail, should be pleaded, where no copy has been preserved, and
where the memory of the witnesses does not hold the exact words, would not only deny the
substance for mere form, but would offer a premium upon the rascality of one whose interests
might suggest the destruction of a will. As said in Anderson vs. Irwin, 101 Ill. 411: "The instrument
in controversy having been destroyed without the fault of the defendant in error ... and there not
appearing to be any copy of it in existence, it would be equivalent to denying the complainant
relief altogether to require her to prove the very terms in which it was conceived. All that could
reasonably be required of her under the circumstances could be to show in general terms the
disposition which the testator made of his property by the instruments; that it purported to be his
will and was duly attested by the requisite number of witnesses." In Allison vs. Allison, 7 Dana
91, it was said in speaking of the character and extent of proof required in such a case:" nor is there
any just ground to object to the proof because the witnesses have not given the language of the
will or the substance thereof. They have given the substance of the different devises as to the
property or interest devised, and to whom devised and we would not stop, in the case of a destroyed
will, to scan with rigid scrutiny the form of the proof, provided we are satisfied of the substance
of its provisions." (Jose vs. Casler 139 Ind. 392, 38 N. E. 812).

The evidence in the case falls short of establishing the existence of such a writing, except as it may
be presumed, under the maxim Omnia preasumuntur in odium spoliateris." There was evidence
tending to show that the second will of Anne Lambie was in the possession of Francis Lambie,
and that it came to the hands of the proponents, warranting the inference that it has been suppressed
or destroyed. If from this evidence the jury found such paper destroyed the law permits the
presumption that it was legally drawn and executed, notwithstanding the terms of the statute, which
requires the revoking instrument to be formally executed. If a will be lost, secondary evidence may
be given of its contents; if suppressed or destroyed, the same is true; and, if necessary the law will
prevent the perpetration of a fraud by permitting a presumption to supply the suppressed proof.
We cannot assent to the proposition that the statute is so right as to be the wrongdoer's most
effective weapons. The misconduct once established to the satisfaction of the jury, it is no hardship
to the wrongdoer to say. "Produce the evidence in your possession, or we will presume that your
opponent's contention is true." When one deliberately destroys, or purposely induces another to
destroy, a written instrument subsequently become a matter of judicial inquiry between the
spoliator and an innocent party, the latter will not be required to make strict proof of the contents
of such instrument in order to establish a right founded thereon. Brook, Leg. Max. 576,
Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's Estate, 97 Mich, 55,56 N. W. 225)
Judged from the standard set forth in the foregoing authorities, and bearing in mind that the
circumstances of this case lead to the only conclusion that the loss of the will in question is of
course imputable to those whose interests are adverse to the petitioner and the widow Lim Billian,
we have no hesitancy in holding the view that the dispositions of the properties left by the deceased
Jose B. Suntay is provided in his will which was lost or snatched in the manner recited in the
decision of this Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797, had been more than
sufficiently proved by the testimony of Judge Anastacio Teodoro, Go Toh, and Ana Suntay,
supported conclusively by the draft of the lost will presented in evidence as Exhibit "B", and even
by the testimony of oppositor Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the following
express findings with respect to the testimony of Judge Teodoro: "Judge Anastacio Teodoro
testified that he opened the sealed envelope when it was given to him by Go Toh preparatory to
the presentation of the petition for the probate of the said will. As the lawyer entrusted with that
task, he had to examine the will and have it copied to be reproduced or appended to the petition.
He could not do otherwise if he is worth his salt as a good lawyer. He could not perform the stunt
of "blind flying" in the judicial firmament. Every step must be taken with certainty and precision
under any circumstances. He could not have talked about the attorney's fees with Go Toh, unless
he has not examined the will beforehand. And, when he was shown Exhibit B, he did not hesitate
in declaring that it was the exact draft of the will that was inside the envelope (Exhibit A), the
testimony of Atty. Alberto Barretto to the contrary notwithstanding."
We should not forget, in this connection, that in the resolution on the motion for reconsideration
the trial Judge reiterated the findings in his decision, although as regards the testimony of Judge
Teodoro admittedly "the only credible witness who testified as to the provisions of the will," he
observed that Judge Teodoro had the draft Exhibit "B" in his hands while testifying. We cannot
see any justifying for the observation, assuming that Judge Teodoro consulted the draft, since even
the trial Judge granted that he "could have testified clearly and distinctly on the provisions of the
said lost will, because he had kept the will in his safe, in his office, for three days, after opening it,
and he is well versed in Spanish language in which the will was written." As a matter of fact,

however, it is not true that Judge Teodoro had the draft in question before him while testifying as
may be seen from the following passages of the transcript:
Q. And, have you read that will which was inside this envelope, Exhibit A? "A. Yes.
Q. Do you remember more or less the contents of the will?
ATTY. FERRIN: With our objection, the best evidence is original will itself, Your Honor.
ATTY. RECTO: We are precisely proving by means of secondary evidence, the contents of the
will, because according to the Supreme Court, and that is a fact already decided, that the will of
Jose B. Suntay was lost and that is res adjudicata.
COURT: Witness may answer.
WITNESS: I remember the main features of the will because as I said I was the one fighting for
the postponement of the hearing of the intestate case because I was asked by Don Alberto Barretto
to secure the postponement until the will that was executed by the deceased is sent here by the
widow from China, with whom we communicated with several letters, and when the will arrived.
I had to check the facts as appearing in the will, and examined fully in connection with the facts
alleged in the intestate, and there was a striking fact in the intestate that Apolonio Suntay has..
ATTY. FERRIN: (Interrupting) May we ask that the witness answer categorically the questions of
Atty. Recto, it seems that the answers of the witness are kilometric ...
ATTY. RECTO: Sometimes the question cannot be answered fully unless the witness would relate
and give all the facts.
COURT: The Attorney for the Administrator may move for the striking out of any testimony that
is not responsive to the question.
ATTY. FERRIN: That is why, our objection, the answer is out of the question.
COURT: Atty. Recto may propound another question.
ATTY. RECTO: I heard the witness was saying something and he has not finished the sentence,
and I want to ask the Court just to allow the witness to finish his sentence.
COURT: You may finish.
WITNESS: "A. There was a sentence, the point I was trying to check first was whether the value
of the estate left by the deceased was SIXTY THOUSAND PESOS (P60,000.00) as Apolonio
Suntay made it appear in his petition, and when I looked at the original will, I found out that it was
several hundred thousand pesos, several thousands of pesos, hundreds of pesos, that was very
striking fact to me because the petition for intestate was for SIXTY THOUSAND PESOS
(P60,000.00), and I came to know that it was worth more than SEVEN HUNDRED THOUSAND
(P700,000.00) PESOS.
Q. Do you remember, Judge, the disposition of the will, the main disposition of the will? "A.
Yes, because our client were the widow, Maria Natividad Lim Billian, and his son, Silvino, the
only son in the second marriage, that was very important for me to know.
Q. How were the properties distributed according to that will?- "A. The properties were distributed
into three (3) parts, one part which we call legitima corta, were equally distributed to the ten (10)
children, nine (9) in the first marriage, and one (1) in the second marriage with Maria Natividad
Lim Billian. The other third, the betterment was given to four (4) children, Concepcion, and

Apolonio getting a quiet substantial share in the betterment, around SIXTY THOUSAND
(P60,000.00) for Concepcion, Apolonio the amount of SEVENTY THOUSAND (70,000,00)
PESOS or little over, and then about ONE HUNDRED THOUSAND (P100,000.00) PESOS of
the betterment in favor of Silvino, the minor of the second marriage, and to Jose equal to
Concepcion.
Q. So the betterment, as I understand from you went to four (4) children?-"A. Yes.
Q. Silvino in the second marriage, Concepcion, Apolonio and Jose in the first marriage? " A.
Yes.
Q. What about the free disposal?-" A. The free disposal was disposed in favor of the widow, Maria
Natividad Lim Billian and Silvino, his minor son in equal parts..
Q. What about, if you remember, if there was something in the will in connection with that
particular of the usufruct of the widow? "A. It was somewhat incorporated into the assets of the
estate left by the deceased.
Q. Do you remember the number of pages of which that will consisted? "A. Twenty-three (23)
pages.
Q. Do you remember if the pages were signed by the testator? "A. Yes, sir, it was signed.
Q. And the foot of the testament or the end of the testament, was it signed by the testator? "A.
Yes, sir, and the attestation clause was the last page signed by the three instrumental witnesses,
Alberto Barretto, one Chinaman Go Toh, and Manuel Lopez, my former Justice of the Peace of
Hagonoy.
Q. Do you remember if there witnesses signed on the different pages of the will? "A. Yes, sir,
they signed with their name signatures.
Q. Showing you this document consisting of twenty-three (23) pages in Spanish and which
document appears already attached to this same testamentary proceedings and already marked as
EXHIBIT B, will you please tell the Court if and for instance on page eight (8) of this
document, pagina octavo, it says, there are handwritings in pencil, some of which read as follows:
"Los cinco-octavos (5/8) partes corresponds a mi hijo Emiliano", can you recognize whose
handwriting is that? "A. From my best estimate it is the handwriting of Don Alberto Barretto.
Q. About the end of the same page eight (8) pagina octavo, of the same document Exhibit B, there
is also the handwriting in pencil which reads: "La otra sexta parte (6.a) corresponde a Bonifacio
Lopez", can you recognize that handwriting? "A. Yes, sir, this is the handwriting of Don Alberto
Barretto, and I wish to call the attention of the Court to compare letter "B" which is in capital letter
with the signature of Don Alberto Barretto in the envelope, "Alberto Barretto" and stroke identifies
one hand as having written those words.
Q. Will you please go over cursorily this document, Exhibit B composed of twenty-three (23)
pages and please tell the Court if this document had anything to do with the will which according
to you was contained in the envelope, Exhibit A? "A. This is exactly the contents of the original
will which I received and kept in my office inside the safe for three (3) days, and I precisely took
special case in the credits left by the deceased, and I remember among them, were the De Leon
family, and Sandiko, well known to me, and then the disposition of the estate, divided into three
(3) equal parts, and I noticed that they are the contents of the will read.

His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge Anastacio
Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition (Exhibit D1)." Yet in setting aside his first decision, he remarked that Go Toh's testimony did not prove
clearly and distinctly the provision of the lost will, because: "He did not, and he could not have
done so even if he tried because the original will was not read to him nor by him before or at the
signing of the same. It was written in Spanish and he did not and does not understand the Spanish
language. Neither was there any occasion for him to have the contents of the said will, after its
execution and sealing inside the envelope (Exhibit A), read to him, because it was opened only
when Judge Teodoro had examined it and then subsequently snatched from Go Toh."
The later position thus taken by Judge Pecson is palpably inconsistent with the following
unequivocal statements of Go Toh contained in hid disposition taken in Amoy, China, on April
17, 1938, and in oppositor's Exhibit "6":
26. State what you know of the contents of that will.
. . . . Regarding (1) expenditures (2) Philippine citizenship; (3) Distribution of estates among
children (4) Taking care of grave lot; (5) guardianship of Silvino Suntay and (6) after paying his
debts he will have approximately 720,000 pesos left. This amount will be divided into three equal
parts of 240,000 pesos each. The first part is to be divided equally among the ten children born by
the first and second wives and the second part among the three sons Silvino Suntay, 75,000
approximately; Apolonio Suntay, 50,000 pesos approximately; Jose Suntay and Concepcion
Suntay, 36,000 each approximately. The third part is to be divided between Maria Lim Billian and
Silvino Suntay; each will get approximately 110,000 pesos. Silvino Suntay will get a total of
210,000 pesos approximately, Maria Natividad Lim Billian a total of 290,000 approximately, and
Apolonio Suntay a total of 80,000 approximately, Concepcion Suntay and Jose Suntay will get
60,000 pesos each approximately. The rest of the children will get approximately 29,000 each. The
way of distribution of the property of Jose B. Suntay, movable and immovable, and the outstanding
debts to be collected was arranged by Jose B. Suntay.
xxx

xxx

xxx

78. On the occasion of the execution of the testament of Jose B. Suntay, state whether or not you
say Exhibit B ... Yes.
79. In the affirmative case, state if you know who had the possession of Exhibit B and the testament
the first time you saw them on that occasion. ... Yes, I know who had possession of them.
80. Can you say whether or not Jose B. Suntay happened to get those documents later on, on that
same occasion? ... He got them after the execution.
81. Please name the person who gave those documents to Mr. Suntay. ... Alberto Barretto gave
the documents to Jose B. Suntay.
82. Did the person who gave those documents to Suntay say anything to him (Suntay) at the time
of giving them? ... Yes.
83. If so what was it that he said, if he said any? ... He said, "You had better see if you want
any correction."
84. What did Mr. Suntay do after those documents were given to him? ... Jose B. Suntay looked
at them and then gave one copy to Manuel Lopez for checking.

85. State whether or not Mr. Suntay gave one of those documents to another man. ... Yes.
86. In the affirmative case, can you say which of the two documents was given and who the man
was? ... Yes he gave Exhibit B to Manuel Lopez.
87. State whether or not Mr. Suntay said something to the man to whom he gave one of those
documents. ... Yes.
88. In the affirmative case can you repeat more or less what Mr. Suntay said to that man? ... He
told him to read it for checking.
89. State if you know what did the man do with one of those documents given to him. ... He
took it and read it for checking.
90. What did in turn Mr. Suntay do with the other one left with him? ... Jose B. Suntay looked
at the original and checked them.
91. What was done with those documents later on if there was anything done with them? ...
After checking, Jose B. Suntay put Exhibit B in his pocket and had the original signed and
executed.
92. What was done with the testament of Jose B. Suntay after it was signed by the testator and its
witnesses? ... It was taken away by Jose B. Suntay. (Exhibit D, D-1.)
Q. Did you know the contents of this envelope? "A. I knew that it was a will.
Q. But did you know the provisions of the will? "A. It is about the distribution of the property
to the heirs.
Q. Did you know how the property was distributed according to the will? "A. I know that more
than P500,000 was for the widow and her son, more than P100,000 for the heirs that are in the
family. (Exhibit "6", p. 28).
Q. You stated that you were one of the witnesses to the will and that the will was written in Spanish.
Was it written in typewriting or in handwriting of somebody? "A. That will was written in
typewriting.
Q. Did you read the contents of that will, or do you know the contents of that will? A. No, sir,
because I do not know Spanish.
Q. How do you know that it was the will of Jose B. Suntay ? "A. Because I was one of the
signers and I saw it." (Exhibit "6", p. 19.)
22. Do you understand the language in which that will was written? ... I know a little Spanish.
23. Do you talk or write that language? I can write and talk a little Spanish. (Exhibits D, D-1.)
As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following findings:
"Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will
in question, also testified on rebuttal that she saw the original will in the possession of Manuel
Suntay immediately after the snatching. She read it and she particularly remembers the manner in
which the properties were to be distributed. Exhibit B was shown to her on the witness stand and
she declared that the provision regarding the distribution of the properties in said Exhibit B is the
same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies the
testimony of Atty. Alberto Barretto." And yet in the resolution on the motion for new trial, the trial
Judge had to state that "Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the

provisions of the said lost will, because she has not had enough schooling and she does not possess
adequate knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog
on the witness stand." The potent error committed by Judge Pecson in reversing his views as
regards Ana's testimony, is revealed readily in the following portions of the transcript:
P. Cuantas paginas tenia aquel documento a que usted se refiere? "R. Probablemente seria mas
de veinte (20) paginas.
P. No serian treinta (30) paginas? "Abogado Recto: La testigo ha contestado ya que mas de
veinte (20).
Juzgado: Se estima
Abogado Mejia:
P. Usted personalmente leyo el documento" "R. Yo leyo mi hermano en presencia mia.
P. La pregunta es, si usted personalmente ha leido el documento? " R. Si, lo he visto.
P. No solamente le pregunto a usted si Vd. ha visto el testamento sino si usted ha leido
personalmente el testamento? "R. Si la parte de la adjudicacion lo he leido para asegurarme a
que porcion corresponde a cada uno de nosotros.
P. Puede usted repetir poco mas o menos esa porcion a que se hacia la distribucion del alegado
testamento? "R. Como ya he declarado, que las propiedades de mi difunto padre se habian
dividido en tres partes, una tercera parte se nos adjudica a nosotros diez (1) hijos en primeros
nupcias y segunda nupcia, la segunda tercera parte los adjudica a la viuda y a Silvino, y la otra
tercera parte se lo adjudica a sus hijos como mejora a Silvino, Apolonio, Concepcion y Jose.
P. Eso, tal como usted personalmente lo leyo en el documento? "R. Si Seor.
P. Quiere usted tener la bondad, seora, de repetir poco mas o menos las palabras en ese documento
que se distribuia las propiedades del defundo padre usted como usted relata aqui? "Abogado Recto:
Objetamos a la pregunta por falta de base, porque elle solamente se fijo en la parte como se
distribuian las propiedades pero no ha dicho la testigo que ella lo ha puesto de memoria, ni Vd. ha
preguntado en que lenguaje estaba escrito el testamento ...
Juzgado: Se estima.
Abogado Mejia:
P. Sabe usted en que lenguaje estaba redactado el documento que usted leyo personalmente?
"R. En Castellano.
P. Puede usted repetirnos ahora en Castellano algunas frases o palabras como se hizo la
distribucion en aquel supuesto testamento?
Abogado Recto: Objecion, por falta de base, uno puede entender el espaol y sin embargo no podra
repetir lo que ha leido, y no se sabe todavia si ha estudiado el espaol bastante hasta el punto de
poder hablarlo.
Juzgado: Se estima.
Abogado Mejia
P. Usted dijo que estaba puesto en castellano el supuesto testamento que Vda. leyo, usted poso el
castellano? "R. Yo entiendo el castellano, pero no puedo hablar bien.

P. Usted estudio el castellano en algun colegio? "Rj. Si, seor, En Sta. Catalina.
P. Cuantos aos? "R. Nuestros estudios no han sido continuous porque mi padre nos ingresaba
en el colegio y despues nos sacaba para estar afuera, y no era continuo nuestro estudio.
P. Pero en total, como cuantos meses o aos estaba usted en el colegio aprendiendo el castelano?
"R. Unos cuatro o cinco aos.
P. Entonces usted puede leer el castellano con facilidad, seora? "R. Si, castellano sencillo
puedo entender y lo puedo leer.
P. Usted entiende las preguntas que se le dirigian aqui en castellano sin interpretacion o sin el
interprete? "R. Si, Seor.
P. Puede usted contestar en castellano? "R. Bueno, pero como de contestar, por eso quiero que
la pregunta se me traduzca antes. asi puedo contestar debidamente. (t.s.n. pp. 533-534.)
We are really at a loss to understand why, without any change whatsoever in the evidence, the trial
Judge reversed his first decision, particularly when he announced therein that "it is now incumbent
upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will (the
draft of which is Exhibit B) and another will which was executed and probated in Amoy, China."
His action is indeed surprising when we take into account the various circumstancial features
presently to be stated, that clearly confirm the testimony of Judge Anastacio Teodoro, G. Toh and
Ana Suntay, or otherwise constitute visible indicia of oppositor's desire to frustrate the wishes of
his father, Jose B. Suntay.
In our opinion the most important piece of evidence in favor of the petitioner's case is the draft of
the lost will, Exhibit "B." Its authenticity cannot be seriously questioned, because according to the
trial Judge himself, oppositor's own witness, Atty. Alberto Barretto, admitted it to be "identical in
substance and form to the second draft which he prepared in typewriting." Indeed, all the "A's"
and "B's" in the handwritten insertions of the draft are very similar to those in Barretto's admittedly
genuine signature on the envelope, Exhibit "A." The finding of Judge Pecson on the point in his
first decision (reiterated expressly in the resolution on the motion for new trial), should control,
not only because it is in accordance with the evidence but because the oppositor had failed and did
not even attempt to have the trial Judge reconsider or reverse his factual conclusions. The draft,
Exhibit "B," having been positively identified by the witnesses for the petitioner to be an exact
copy of the lost will of Jose B. Suntay, is therefore conclusive. Oppositor's effort to show that said
draft was never signed in final form, and was thought of merely to deceive petitioner's mother,
Lim Billian, and that the will actually executed and put in the envelope, Exhibit "A", provided that
the testator's estate would be divided equally among his heirs, as in the case of intestacy, was
necessarily futile because, if this allegation is true, the will would not have been "snatched" from
Go Toh and the loss certainly cannot be imputed to the widow Lim Billian or the petitioner; the
snatched will would have been produced to put an end to petitioner's and his mother's claim for
greater inheritance or participation under the lost will; and the envelope containing the first will
providing for equal shares, would not have been entrusted to the care and custody of the widow
Lim Billian.
It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and
Federico Suntay had opposed the probate of the will in question; the rest, namely, Ana, Aurora,
Concepcion, Lourdes, Manuel and Emiliano Suntay, having expressly manifested in their answer
that they had no opposition thereto, since the petitioner's alternative petition "seeks only to put into

effect the testamentary disposition and wishes of their late father." This attitude is significantly an
indication of the justness of petitioner's claim, because it would have been to their greater
advantage if they had sided with oppositor Federico Suntay in his theory of equal inheritance for
all the children of Jose B. Suntay. Under the lost will or its draft Exhibit "B", each of the Suntay
children would receive only some P 25,000.00, whereas in case of intestacy or under the alleged
will providing for equal shares, each of them would receive some P100,000.00. And yet the Suntay
children other than Angel, Jose and Federico had chosen to give their conformity to the alternative
petition in this case.
Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in
Amoy, Fookien, China, on January 4, 1931, and probated in Amoy District Court, China,
containing virtually the same provisions as those in the draft Exhibit "B". What better evidence is
there of an man's desire or insistence to express his last wishes than the execution of a will
reiterating the same provisions contained in an earlier will. Assuming that the Chinese will cannot
be probated in the jurisdiction, its probative value as corroborating evidence cannot be ignored.
Oppositor himself had admitted having read the will in question under which the widow Lim
Billian was favored; and this again in a way goes to corroborate the evidence for the petitioner as
to the contents of the will sought to be probated.
COURT:
Q. Have you read the supposed will or the alleged will of your father? "A. Yes, sir.
COURT:
Q. Can you tell the court the share or participation in the inheritance of Maria Natividad Lim
Billian according to the will?
A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she is the most
favored in the will, so when they sold that, they sold everything, they are selling everything even
the conjugal property. (t. s. n. 228-229.)
The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful
perhaps of the fact that the trial Judge gave no credence to said witness. It should be repeated that
Judge Pecson reiterated in the resolution on the motion for new trial all his findings in the first
decision. If as Atty. Barretto testified, Lim Billian was entitled under the will actually signed by
Jose Suntay only to P10,000.00, in addition to properties in China value at P15,000.00, the fees of
P25,000.00 admittedly asked by him would absorb her entire inheritance; and this would normally
not be done by any law practitioner. Upon the other hand, there is evidence to the effect that Atty.
Barretto might have become hostile to the petitioner and his mother Lim Billian in view of the
latter's refusal to agree to the amount of P25,000.00 and her offer to pay only P100.00. There is
also evidence tending to show that as early as 1942, Atty. Barretto was paid by oppositor Federico
Suntay the sum of P16,000.00 which, although allegedly for services in the testate proceedings,
was paid out of the personal funds of said oppositors to supply Atty. Barretto's needs. This
circumstances perhaps further explains why the latter had to support the side of Federico Suntay.
We have quoted in full the decision of this court in the "snatching" case and the first decision of
Judge Pecson in this case, both in the hope and in the belief (1) that the first would reveal the
manner by which those adversely affected had planned to prevent the last wishes of the deceased
Jose B. Suntay from being carried on, and (2) that the second, by the facts correctly recited therein
and by the force and accuracy of its logic would amply show the weakness and utter lack of

foundation of the resolution on the motion for reconsideration. We have set forth at length pertinent
portions of the testimony of various witnesses to demonstrate more plainly the plausibility of the
original decision of Judge Pecson, and the latter's consequent bad judgment in having forced
himself to accomplish a somersault, a feat which the majority, in my opinion, have mistakenly
commended. We have found this to be one of the cases of this court in which we have had occasion
to participate, where there can be absolutely no doubt as to the result outright reversal for
which, with due respect to the majority opinion, we vote without hesitancy.
Montemayor and Jugo, JJ., concur.

RESOLUTION
5 November 1954
PADILLA, J.:
This is a motion for reconsideration of the decision promulgated on 31 July 1954, affirming the
decree of the Court of First Instance of Bulacan which disallowed the alleged last will and
testament executed in November 1929 and the alleged last will and testament executed in
Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay, without pronouncement as to
costs, on grounds that will presently be taken up and discussed.
Appellant points to an alleged error in the decision where it states that
. . . This petition was denied because of the loss of said will after the filing of the petition and
before the hearing thereof, . . .
because according to him the "will was lost before not after (the) filing of the petition." This slight
error, if it is an error at all, does not, and cannot, after the conclusions and pronouncements made
in the judgment rendered in the case. In his alternative petition the appellant alleges:
4. That on October 15, 1934, Marian Natividad Lim Billian, the mother of herein petitioner filed
a petition in this court for the allowance and probate of a last will and testament executed, and
signed in the Philippines in the year 1929 by said deceased Jose B. Suntay. (P. 3, amended record
on appeal.)
If such will and testament was already lost or destroyed at the time of the filing of the petition by
Maria Natividad Lim Billian (15 October 1934), the appellant would have so stated and alleged.
If Anastacio Teodoro, a witness for the appellant, is to be believed when he testified
. . . that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), ... Go Toh arrived
at his law office in the De Los Reyes Building and left an envelope wrapped in red handkerchief
[Exhibit C] (p. 32, t. s. n., hearing of 13 October 19470 . . .
and
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and returned
by the latter to the former because they could not agree on the amount of fees, . . .

then on 15 October 1934, the date of the filing of the petition, the will was not yet lost. And if the
facts alleged in paragraph 5 of the appellant's alternative petition which states:
That this Honorable Court, after hearing, denied the aforesaid petition for probate filed by Maria
Natividad Lim Billian in view of the loss and/or destruction of said will subsequent to the filing of
said petition and prior to the hearing thereof, and the alleged insufficiency of the evidence adduced
to established the loss and/or destruction of the said will, (Emphasis supplied, P. 3, amended record
on appeal.)
may be relied upon, then the alleged error pointed out by the appellant, if it is an error, is due to
the allegation in said paragraph of his alternative petition. Did the appellant allege the facts in said
paragraph with reckless abandon? Or, did the appellant make the allegation as erroneously as that
which he made in paragraph 10 of the alternative petition that "his will which was lost and
ordered probated by our Supreme Court in G. R. No. 44276, above referred to?" (P. 7, amended
record on appeal.) This Court did not order the probate of the will in said case because if it did,
there would have been no further and subsequent proceedings in the case after the decision of this
Court referred to had been rendered and had become final. Be that as it may, whether the loss of
the will was before or subsequent to the filing of the petition, as already stated, the fact would not
affect in the slightest degree the conclusions and pronouncements made by this Court.
The appellant advances the postulate that the decision of this Court in the case of Lim Billian vs.
Suntay, G. R. No. 44276, 63 Phil., 793, constitutes res judicata on these points: (a) that only one
will was prepared by attorney Barretto, and (b) that the issue to be resolved by the trial court was
whether the draft (Exhibit B) is a true copy or draft of the snatched will, and contends that these
points already adjudged were overlooked in the majority opinion. The decision of this Court in the
case referred to does not constitute res judicata on the points adverted to by the appellant. The only
point decided in that case is that "the evidence is sufficient to establish the loss of the document
contained in the envelope." In the opinion of this Court, this circumstance justified "the
presentation of secondary evidence of its contents and of whether it was executed with all the
essential and necessary legal formalities." That is all that was decided. This Court further said:
The trial of this case was limited to the proof of loss of the will, and from what has taken place we
deduce that it was not petitioner's intention to raise, upon the evidence adduced by her, and other
points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a true copy
of the will and whether the latter was executed with all the formalities required by law for its
probate. The testimony of Alberto Barretto bears importantly in this connection. (P. 796, supra.)
Appellant's contention that the question before the probate court was whether the draft (Exhibit B)
is a true copy or draft of the snatched will is a mistaken interpretation and view of the decision of
this Court in the case referred to, for if this Court did make that pronouncement, which, of course,
it did not, such pronouncement would be contrary to law and would have been a grievous and
irreparable mistake, because what the Court passed upon and decided in that case, as already stated,
is that there was sufficient evidence to prove the loss of the of the will and that the next step was
to prove by secondary evidence its due execution in accordance with the formalities of the law and
its contents, clearly and districtly, by the testimony of at least two credible witnesses.1
The appellant invokes Rule 133 to argue that Rule 77 should not have been applied to the case but
the provisions of section 623 of the Code of Civil Procedure (Act No. 190), for the reason that this
case had been commenced before the Rules of Court took effect. But Rule 133 cited by the
appellant provides:

These rules shall take effect on July 1, 1940. They shall govern all cases brought after they take
effect, andalso all further proceedings in cases then pending, except to the extent that in the opinion
of the court their application would not be feasible or would work injustice, in which event the
former procedure shall apply.(Emphasis supplied.)
So, Rule 77 applies to this case because it was a further proceedings in a case then pending. But
even if section 623 of the Code of Civil Procedure were to be applied, still the evidence to prove
the contents and due execution of the will and the fact of its unauthorized destruction, cancellation,
or obliteration must be established "by full evidence to the satisfaction of the Court." This
requirement may even be more strict and exacting than the two-witness rule provided for in section
6, Rule 77. The underlying reason for the exacting provisions found in section 623 of Act No. 190
and section 6, Rule 77, the product of experience and wisdom, is to prevent imposters from
foisting, or at least to make for them difficult to foist, upon probate courts alleged last wills or
testaments that were never executed.
In commenting unfavorably upon the decree disallowing the lost will, both the appellant and the
dissenting opinion suffer from an infirmity born of a mistaken premise that all the conclusions and
pronouncements made by the probate court in the first decree which allowed the probate of the
lost will of the late Jose B. Suntay must be accepted by this Court. This is an error. It must be
borne in mind that this is not a petition for a writ of certiorari to review a judgment of the Court of
Appeals on questions of law where the findings of fact by said Court are binding upon this Court.
This is an appeal from the probate court, because the amount involved in the controversy exceeds
P50,000, and this Court in the exercise of its appellate jurisdiction must review the evidence and
the findings of fact and legal pronouncements made by the probate court. If such conclusions and
pronouncements are unjustified and erroneous this Court is in duty bound to correct them. Not
long after entering the first decree the probate court was convinced that it had committed a mistake,
so it set aside the decree and entered another. This Court affirmed the last decree not precisely
upon the facts found by the probate court but upon facts found by it after a careful review and
scrutiny of the evidence, parole and documentary. After such review this Court has found that the
provisions of the will had not been established clearly and distinctly by at least two credible
witnesses and that conclusion is unassailable because it is solidly based on the established facts
and in accordance with law.
The appellant and the dissent try to make much out of a pleading filed by five (5) children and the
widow of Apolonio Suntay, another child of the deceased by the first marriage, wherein they state
that
. . . in answer to the alternative petition filed in these proceedings by Silvino Suntay, through
counsel, dated June 18, 1947, to this Honorable Court respectfully state that, since said alternative
petition seeks only to put into effect the testamentary disposition and wishes of their late father,
they have no opposition thereto. (Pp. 71-72, amended record on appeal.)
Does that mean that they were consenting to the probate of the lost will? Of course not. If the lost
will sought to be probated in the alternative petition was really the will of their late father, they, as
good children, naturally had, could have, no objection to its probate. That is all that their answer
implies and means. But such lack of objection to the probate of the lost will does not relieve the
proponent thereof or the party interested in its probate from establishing its due execution and
proving clearly and distinctly the provisions thereof at least two credible witnesses. It does not
mean that they accept the draft Exhibit B as an exact and true copy of the lost will and consent to

its probate. Far from it. In the pleading copied in the dissent, which the appellant has owned and
used as argument in the motion for reconsideration, there is nothing that may bolster up his
contention. Even if all the children were agreeable to the probate of said lost will, still the due
execution of the lost will must be established and the provisions thereof proved clearly and
distinctly by at least two credible witnesses, as provided for in section 6, Rule 77. The appellant's
effort failed to prove what is required by the rule. Even if the children of the deceased by the first
marriage, out of generosity, were willing to donate their shares in the estate of their deceased father
or parts thereof to their step mother and her only child, the herein appellant, still the donation, if
validly made, would not dispense with the proceedings for the probate of the will in accordance
with section 6, Rule 77, because the former may convey by way of donation their shares in the
state of their deceased father or parts thereof to the latter only after the decree disallowing the will
shall have been rendered and shall have become final. If the lost will is allowed to probate there
would be no room for such donation except of their respective shares in the probated will.
The part of the deposition of Go Toh quoted in the motion for reconsideration which appellant
underscores does not refer to Go Toh but to Manuel Lopez. Even if Go Toh heard Manuel Lopez
read the draft (Exhibit B) for the purpose of checking it up with the original held and read by Jose
B. Suntay, Go Toh should not have understood the provisions of the will because he knew very
little of the Spanish language in which the will was written (answer to 22nd and 23rd
interrogatories and to X-2 cross-interrogatory). In fact, he testifies in his deposition that all he
knows about the contents of the lost will was revealed to him by Jose B. Suntay at the time it was
executed (answers to 25th interrogatory and to X-4 and X-8 cross-interrogatories); that Jose B.
Suntay told him that the contents thereof are the same as those of the draft [Exhibit B] (answers to
33rd interrogatory and to X-8 cross-interrogatory); that Mrs. Suntay had the draft of the will
(Exhibit B) translated into Chinese and he read the translation (answer to the 67th interrogatory);
that he did not read the will and did not compare it (check it up) with the draft [Exhibit B] (answers
to X-6 and X-20 cross-interrogatories). We repeat that
. . . all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay,
because he came to know or he learned of them from information given him by Jose B. Suntay and
from reading the translation of the draft (Exhibit B) into Chinese.
This finding cannot be contested and assailed.
The appellant does not understand how the Court came to the conclusion that Ana Suntay, a
witness for the appellant could not have read the part of the will on adjudication. According to her
testimony "she did not read the whole will but only the adjudication," which, this Court found, "is
inconsistent with her testimony in chief (to the effect) that "after Apolonio read that portion, then
he turned over the document of Manuel, and he went away." (P. 528, t. s. n., hearing of 24 February
1948.) And appellant asks the question: "Who went away? Was it Manuel or Apolonio?" In answer
to his own question the appellant says: "The more obvious inference is that it was Apolonio and
not Manuel who went away." This inference made by the appellant not only is not obvious but it
is also illogical, if it be borne in mind that Manuel came to the house of Apolonio and it happened
that Ana was there, according to her testimony. So the sentence "he went away" in Ana's testimony
must logically and reasonably refer to Manuel, who was a caller or visitor in the house of his
brother Apolonio and not to the latter who was in his house. If it was Apolonio who "went away,"
counsel for the appellant could have brought that out by a single question. As the evidence stands
could it be said that the one who went away was Apolonio and not Manuel? The obvious answer

is that it was Manuel. That inference is the result of a straight process of reasoning and clear
thinking.
There is a veiled insinuation in the dissent that Alberto Barretto testified as he did because he had
been paid by Federico C. Suntay the sum of P16,000. Federico C. Suntay testifies on the point thus

Q. You mentioned in your direct testimony that you paid certain amount to Atty. Alberto Barretto
for services rendered, how much did you pay? A. Around SIXTEEN THOUSAND
(P16,000.00).
Q. When did you make the payment? A. During the Japanese time.
Q. Did you state that fact in any accounts you presented to the Court? A. I do not quite remember
that.
. . . (P. 180, t. s. n., hearing of 24 October 1947.)
Q. When you made that payment, was (it) your intention to charge it to the state or to collect it
later from the estate? A. Yes, sir.
Q. More or less when was such payment made, during the Japanese time, what particular month
and year, do you remember? A. I think in 1942.
Q. And you said you paid him because of services he rendered? A. Upon the order to the Court.
Q. And those services were precisely because he made a will and he made a will which was lost,
the will of Jose B. Suntay? ... (P. 181, t. s. n., supra.) A. I think I remember correctly according
to ex-Representative Vera who is the administrator whom I followed at that time, that was paid
according to the services rendered by Don Alberto Barretto with regard to our case in
the testamentaria but he also rendered services to my father.
Q. At least your Counsel said that there was an order of the Court ordering you to pay that, do you
have that copy of the order? A. Yes, sir, I have, but I think that was burned. (P. 184, t. s.
n., supra.).
So the sum of P16,000 was paid upon recommendation of the former administrator and order of
the probate court for services rendered by Alberto Barretto not only in the probate proceedings
that also for services rendered to his father. But if this sum of P16,000 paid to Alberto Barretto
upon recommendation of the previous administrator and order of the probate court for professional
services rendered in the probate proceedings and to the deceased in his lifetime be taken against
his truthfulness and veracity as to affect adversely his testimony, what about the professional
services of Anastacio Teodoro who appeared in this case as one of the attorneys for the petitionerappellant? (P. 2, t. s. n., hearing of 13 October 1947.)Would that not likewise or by the same token
affect his credibility? It is the latter's interest more compelling than the former's?
For the foregoing reasons, the motion for reconsideration is denied.
Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.

Paras, C.J., dissenting:

For the same reasons and considerations set forth in detail in my dissent promulgated on July 31,
1954, I vote to grant the motion for reconsideration.
Montemayor and Jugo, JJ., concur.
G.R. 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-SALONGA respondents.
Salonga, Ordoez, Yap, Sicat and Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.
Villareal, Almacen, Navarra and 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, ante mortem, of her last will and testament. The probate
was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta 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-Meez, Isagani Cruz, Alberto Cruz, and Luz CruzSalonga, all of whom had been assumed and declared by Basilia as her own legally adopted
children.
On April 23, 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 decedent's 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 succeed 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 sides 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.I. 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 years after they were allowed to intervene, the petitioners
Ruben Austria, let 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-Meez 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 Benita's 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, 1963 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 decedent's 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 concededly the nearest
surviving blood relatives of the decedent. On the other side are the respondents brothers and sisters,
Perfecto Cruz, Benita Cruz-Meez, 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 Basilia's last will immaculate 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 Basilia's 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
decedent's 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 adoption of 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 testator 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 called 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 apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang maiiwan,
sa kaparaanang sumusunod:
A.Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz, Benita
at Isagani, na pawang may apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at walang
lamangan (en partes iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati () 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 ng testamentong ito, ang kalahati () 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 () 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 al. as the latter's legitime. The petitioners further contend that
had the deceased known the adoption to be spurious, she would not have instituted the respondents
at all the 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 that 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) and "sapilitang mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix's 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 decedent's 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 she believed that the law commanded her to do so, on the false
assumption that her adoption of these respondents was valid, still such institution 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 testator clearly would not have
made the institution if he 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
these heirs as her legally adopted children? Or would she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this point or at best is
vague and uncertain. The phrases, "mga sapilitang tagapagmana" and "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 disposicion) which largely favored the respondent Perfecto Cruz, the latter's
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 testate by intestacy a 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,2 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.3 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.4
At all events, the legality of the adoption of the 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 first an 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
justices.6 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.7
ACCORDINGLY, the present petition is denied, at petitioners cost.
G.R. No. 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.
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, 1which 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. 2 Acting on the said petition, we set aside the trial court's order and
directed it to proceed to hear the case on the merits. The trial court, after hearing, found the will to
have already been revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The
petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on June

7, 1985, affirmed the order. The petitioners' motion for reconsideration of the adverse decision
proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners
Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and
Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these
four heirs commenced on November 4, 1963 an intestate proceeding for the settlement of their
aunt's estate. The case was instituted in the then Court of First Instance of Iloilo and was docketed
as Special Proceeding No. 1736. However, while the case was still in progress, or to be exact on
February 1, 1964, the parties Aldina, Constancio, Panfilo, and Felino executed an agreement
of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate
into four equal parts among the parties. The Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the court did on March 21, 1964. That should have
signalled the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of
Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN
NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will
and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy,
while he was going through some materials inside the cabinet drawer formerly used by Atty.
Hervas. The document was submitted to the office of the clerk of the Court of First Instance of
Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said
will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate of
Adriana than what they received by virtue of the agreement of extrajudicial settlement they had
earlier signed. The will likewise gives devises and legacies to other parties, among them being the
petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named
in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of
the proceedings therein and for the allowance of the will When the trial court denied their motion,
the petitioner came to us by way of a petition for certiorari and mandamus assailing the orders of
the trial court . 3 As we stated earlier, we dismissed that petition and advised that a separate
proceeding for the probate of the alleged will would be the appropriate vehicle to thresh out the
matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the
document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de
Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the
will had been revoked. The respondent court stated that the presence of animus revocandi in the
destruction of the will had, nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in Adriana's residence, by the
testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's
possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up. For
reasons shortly to be explained, we do not view such facts, even considered collectively, as
sufficient bases for the conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will.
The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the
testator himself, or by some other person in his presence, and by his express direction. If burned,
torn cancelled, or obliterated by some other person, without the express direction of the testator,
the will may still be established, and the estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are
established according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per se
constitute an effective revocation, unless the destruction is coupled with animus revocandi on the
part of the testator. It is not imperative that the physical destruction be done by the testator himself.
It may be performed by another person but under theexpress direction and in the presence of the
testator. Of course, it goes without saying that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state
of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary
elements for the effective revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will
carried out by the testator or by another person in his presence and under his express direction.
There is paucity of evidence to show compliance with these requirements. For one, the document
or papers burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at
all, much less the will of Adriana Maloto. For another, the burning was not proven to have been
done under the express direction of Adriana. And then, the burning was not in her presence. Both
witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the
place where the stove (presumably in the kitchen) was located in which the papers proffered as a
will were burned.
The respondent appellate court in assessing the evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony of the two witnesses who testified in
favor of the will's revocation appear "inconclusive." We share the same view. Nowhere in the
records before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio
Itchon, both illiterates, were unequivocably positive that the document burned was indeed
Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the will only
because, according to her, Adriana told her so. Eladio, on the other hand, obtained his information
that the burned document was the will because Guadalupe told him so, thus, his testimony on this
point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win
is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its very foundations ...." 4
The private respondents in their bid for the dismissal of the present action for probate instituted by
the petitioners argue that the same is already barred by res adjudicata. They claim that this bar was
brought about by the petitioners' failure to appeal timely from the order dated November 16, 1968
of the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their

(petitioners') motion to reopen the case, and their prayer to annul the previous proceedings therein
and to allow the last will and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment to
be a bar to a subsequent case, the following requisites must concur: (1) the presence of a final
former judgment; (2) the former judgment was rendered by a court having jurisdiction over the
subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there
is, between the first and the second action, Identity of parties, of subject matter, and of cause of
action. 5 We do not find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana
Maloto's will is concerned. The decision of the trial court in Special Proceeding No. 1736, although
final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could
not in any manner be construed to be final with respect to the probate of the subsequently
discovered will of the decedent. Neither is it a judgment on the merits of the action for probate.
This is understandably so because the trial court, in the intestate proceeding, was without
jurisdiction to rule on the probate of the contested will . 6 After all, an action for probate, as it
implies, is founded on the presence of a will and with the objective of proving its due execution
and validity, something which can not be properly done in an intestate settlement of estate
proceeding which is predicated on the assumption that the decedent left no will. Thus, there is
likewise no Identity between the cause of action in intestate proceeding and that in an action for
probate. Be that as it may, it would be remembered that it was precisely because of our ruling in
G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the late
Adriana Maloto's will. Hence, on these grounds alone, the position of the private respondents on
this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the fact
that "(a) major and substantial bulk of the properties mentioned in the will had been disposed of:
while an insignificant portion of the properties remained at the time of death (of the testatrix); and,
furthermore, more valuable properties have been acquired after the execution of the will on January
3,1940." 7 Suffice it to state here that as these additional matters raised by the private respondents
are extraneous to this special proceeding, they could only be appropriately taken up after the will
has been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision
dated June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals,
and a new one ENTERED for the allowance of Adriana Maloto's last will and testament. Costs
against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.