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- Dolar vs. Diancin, 55 Phil.

, 479
Facts: The will of Paulino Diancin was denied probate on the sole ground that the thumbmarks appearing were not
thumbmarks of the testator. Exhibit 8 was presented; it is a document of sale containing an admitted genuine
thumbmark of Paulino Diancin. Carlos Jaena, attempted to qualify as an expert gace his opinion that the thumbmarks
were not made by the same person. The trial judge expressed his opinion that great differences existed between the
two marks.

Issue: The sole issue is whether the will may be probated despite the alleged discrepancy between the thumbmarks?

Ruled: The Supreme Court through Justice Malcolm found error on part of the trial court. In cases of dispute as to the
will there is an obvious mean to ascertain whether the same is genuine. Resort may be had on the testimony of the
instrumental witnesses present during the execution of the will. In the case at bar, the three instrumental witnesses
were united in testifying on matters concerning the execution of the will. Moreover a certain Diosdado Dominado
testified; that he was the one who prepared the will for Diancin, that the thumbmarks are those of Diancin, and that he
saw Diancin make these impressions.

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G.R. No. L-33365 December 20, 1930

Estate of the deceased Paulino Diancin. TEOPISTA DOLAR, proponent-appellant,


vs.
FIDEL DIANCIN, ET AL., oppositors-appellees.

Montinola, Montinola and Hilado for appellant.


Lopez Vito and Lopez Vito for appellees.

MALCOLM, J.:

The will of the deceased Paulino Diancin was denied probate in the Court of First Instance of Iloilo on the sole ground that the
thumbmarks appearing thereon were not the thumbmarks of the testator. Disregarding the other errors assigned by the
proponent of the will, we would direct attention to the third error which challenges squarely the correctness of this finding.

The will in question is alleged to have been executed by Paulino Diancin at Dumangas, Iloilo, on November 13, 1927. A
thumbmark appears at the end of the will and on the left hand margin of each of its pages in the following manner: "Paulino
Diancin, Su Signo, Por Pedro Diamante." The witnesses to the will were the same Pedro Diamante, Inocentes Deocampo, and
Juan Dominado. The will is detailed in nature, and disposes of an estate amounting approximately to P50,000.

For comparative purposes, Exhibit 8, a document of sale containing an admittedly genuine thumbmark of Paulino Diancin, was
presented. Photographs of the thumbmarks on the will and of the thumbmark on Exhibit 8 were also offered in evidence. One,
Carlos J. Jaena, attempted to qualify as an "expert," and thereafter gave as his opinion that the thumbmarks had not been made
by the same person .One, Jose G. Villanueva, likewise attempted to qualify as were authentic. The petition of the proponent of
the will to permit the will to be sent to Manila to be examined by an expert was denied. On one fact only were the opposing
witnesses agreed, and this was that the ink used to make the thumbmarks on the will was of the ordinary type which blurred the
characteristics of the marks, whereas the thumbmark on Exhibit 8 was formed clearly by the use of the special ink required for
this purpose. The trial judge expressed his personal view as being that great differences existed between the questioned marks
and the genuine mar. l awphi 1>net

The requirement of the statute that the will shall be "signed" is satisfied not only the customary written signature but also by the
testator's or testatrix' thumbmark .Expert testimony as to the identity of thumbmarks or fingerprints is of course admissible. The
method of identification of fingerprints is a science requiring close study .Where thumb impressions are blurred and many of the
characteristic marks far from clear, thus rendering it difficult to trace the features enumerated by experts as showing the identity
or lack of identity of the impressions, the court is justified in refusing to accept the opinions of alleged experts and in substituting
its own opinion that a distinct similarity in some respects between the admittedly genuine thumbmark and the questioned
thumbmarks, is evident .This we do here. (Emperor vs. Abdul Hamid [1905], 32 Indian L. Rep., 759, cited in 3 Chamberlayne on
the Modern Law of Evidence, sec. 2561, notes 3.)

There is another means of approach to the question and an obvious one. The three instrumental witnesses united in testifying
concerning the circumstances surrounding the execution of the will. It was stated that in addition to the testator and themselves,
on other person, Diosdado Dominado, was present. This latter individual was called as a witness by the oppositors to the will to
identify Exhibit 8. He was later placed on the witness stand by the proponent on rebuttal, and thereupon declared positively that
he was the one who prepared the will for the signature of Paulino Diancin; that the thumbmarks appearing on the will were those
of Paulino Diancin, and that he saw Paulino Diancin make these impressions. The testimony of a witness called by both parties
is worthy of credit.

We reach the very definite conclusion that the document presented for probate as the last will of the deceased Paulino Diancin
was, in truth, his will, and that the thumbmarks appearing thereon were the thumbmarks of the testator .Accordingly, error is
found, which means that the judgment appealed from must be, as it is hereby, reversed, and the will ordered admitted to
probate, without special finding as to costs in this instance.

Avancea, C.J., Johnson, Street, Villamor, Ostand, Johns, Romualdez and Villa-Real, JJ., concur.
- SERAPIA DE GALA,Petitioner-Appellant, v. APOLINARIO GONZALES and SINFOROSO ONA,
opponents-appellants G.R. No. 30289. March 26, 1929

1. PROBATE PROCEEDINGS; SPECIAL ADMINISTRATORS; REMOVAL. The appointment of a special administrator in a


probate case lies in the sound discretion of the court, and he may be removed without reference to section 653 of the Code of
Civil Procedure.

2. WILLS; TESTATORS SIGNATURE; THUMB-MARKS. In executing her last will and testament, the testatrix placed her
thumb-mark between her given name and surname, written by another person. It was not mentioned in the attestation clause
that the testatrix signed by thumb-mark, but the form of the signature was sufficiently described and explained in the last clause
of the body of the will. Held, that the signature was valid

--------------------------------------------

G.R. No. L-30289 March 26, 1929

SERAPIA DE GALA, petitioner-appellant,


vs.
APOLINARIO GONZALES and SINFOROSO ONA, opponents-appellants.

Sumulong, Lavides & Hilado for petitioner-appellant.


Godofredo Reyes for opponent-appellant Gonzales.
Ramon Diokno for opponent-appellant Ona.

OSTRAND, J.:

On November 23, 1920, Severina Gonzales executed a will in which Serapia de Gala, a niece of Severina, was designated
executrix. The testatrix died in November, 1926, leaving no heirs by force of law, and on December 2, 1926, Serapia, through
her counsel, presented the will for probate. Apolinario Gonzales, a nephew of the deceased, filed an opposition to the will on the
ground that it had not been executed in conformity with the provisions of section 618 of the Code of Civil Procedure. On April 2,
1927, Serapia de Gala was appointed special administratrix of the estate of the deceased. She returned an inventory of the
estate on March 31, 1927, and made several demands upon Sinforoso Ona, the surviving husband of the deceased, for the
delivery to her of the property inventoried and of which he was in possession.

On September 20, 1928, the Court of First Instance ordered Sinforoso Ona to deliver to Serapia de Gala all the property left by
the deceased. Instead of delivering the property as ordered, Sinforoso filed a motion asking the appointment of Serapia de Gala
as special administratrix be cancelled and that he, Sinforoso, be appointed in her stead. The motion was opposed by both
Apolinario Gonzales and by Serapia de Gala, but on March 3, 1928, it was nevertheless granted, Serapia was removed, and
Sinforoso was appointed special administrator in her place, principally on the ground that he had possession of the property in
question and that his appointment would simplify the proceedings.

In the meantime and after various continuances and delays, the court below in an order dated January 20, 1928, declared the
will valid and admitted it to probate. All of the parties appealed, Serapia de Gala from the order removing her from the office of
special administratrix, and Apolinario Gonzales and Sinforoso Ona from the order probating the will.

Serapia's appeal requires but little discussion. The burden of the argument of her counsel is that a special administrator cannot
be removed except for one or more of the causes stated in section 653 of the Code of Civil Procedure. But that section can only
apply to executors and regular administrators, and the office of a special administrator is quite different from that of regular
administrator. The appointment of a special administrator lies entirely in the sound discretion of the court; the function of such an
administrator is only to collect and preserve the property of the deceased and to return an inventory thereof; he cannot be sued
by a creditor and cannot pay any debts of the deceased. The fact that no appeal can be taken from the appointment of a special
administrator indicates that both his appointment and his removal are purely discretionary, and we cannot find that the court
below abused its discretion in the present case. In removing Serapia de Gala and appointing the present possessor of the
property pending the final determination of the validity of the will, the court probably prevented useless litigation.

The appellants Sinforoso Ona and Apolinario Gonzales argue that the will in question was not executed in the form prescribed
by section 618 of the Code of Civil Procedure as amended by Act No. 2645. That section reads as follows:

No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or
affect the same, unless it be written in the language or dialect known by the testator and signed by him, or by the
testator's name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of each other. The testator or the
person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, on the left margin, and said pages shall be numbered correlatively in letters placed on the
upper part of each sheet. The attestation shall state the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all
pages thereof in the presence of the testator and of each other.

The principal points raised by the appeal are (1) that the person requested to sign the name of the testatrix signed only the
latter's name and not her own; (2) that the attestation clause does not mention the placing of the thumb-mark of the testatrix in
the will; and (3) that the fact that the will had been signed in the presence of the witnesses was not stated in the attestation
clause but only in the last paragraph of the body of the will.

The first point can best be answered by quoting the language of this court in the case of the Estate of Maria Salva, G. R. No.
26881:1

An examination of the will in question disclosed that it contains five pages. The name of the old woman, Maria Salva,
was written on the left hand margin of the first four pages and at the end of the will. About in the center of her name she
placed her thumb-mark. About in the center of her name she placed her thumb-mark. The three witnesses likewise
signed on the left-hand margin and at the end of the will.

On these facts, the theory of the trial judge was that under the provisions of section 618 of the Code of Civil Procedure,
as amended by Act No. 2645, it was essential to the validity of the will that the person writing the name of the maker of
the will also sign. Under the law prior to the amendment, it had been held by this court that where a testator is unable to
write and his name is signed by another at his request, in his presence and in that of the subscribing witnesses thereto,
it is unimportant, so far as the validity of the will is concerned, whether the person who writes the name of the testator
signs his own or not. (Barut vs. Cabacungan (1912), 21 Phil., 461). But his Honor, the trial judge emphasizes that the
amendment introduced into the law the following sentence: 'The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the left
margin . . ..' This requirement, it is said, was not lived up to in this instance.

There is, however, an entirely different view which can be taken of the situation. This is that the testatrix placed her
thumb-mark on the will in the proper places. When, therefore, the law says that the will shall be 'signed' by the testator
or testatrix, the law is fulfilled not only by the customary written signature but by the testator or testatrix' thumb-mark.
The construction put upon the word 'signed' by most courts is the original meaning of a signum or sign, rather than the
derivative meaning of a sign manual or handwriting. A statute requiring a will to be 'signed' is satisfied if the signature is
made by the testator's mark. (28 R. C. L., pp. 116-117).

The opinion quoted is exactly in point. The testatrix thumb-mark appears in the center of her name as written by Serapia de Gala
on all of the pages of the will.

The second and third points raised by Sinforoso Ona and Apolinario Gonzales are sufficiently refuted by quoting the last clause
of the body of the will together with the attestation clause, both of which are written in the Tagalog dialect. These clauses read
as follows:

Sa katunayang ang kasulatang ito, na may anim na dahon, ay siyang naglalaman ng aking huling tagubilin, at sa hindi
ko kaalamang lumagda ng aking pangalan, ipinamanhik ko sa aking pamankin na si Serapia de Gala na isulat ang
aking pangalan at apellido, at sa tapat ay inilagda ko ang titik ng kanang daliri kong hinlalaki, sa walkas at sa bawat isa
sa anim (6) na dahon ng kasulatang ito, at ito's ginawa niya sa kautusan at sa harap ko at ng tatlong saksing
nagpapatutuo sa huli ngayon ika dalawang po't tatlo ng Nobiembre ng 1920.

(Sgd.) SEVERINA GONZALES

Pinatutunayan namin na ang kasulatang ito na binubuo ng anim (6) na dahon na pinirmahan sa harap namin ni Serapia
de Gala sa kahilingan ni Severina Gonzales sa wakas at sa mga gilid ng bawa't isa sa anim (6) na dahon at isinaysay
na ang kasulatang ito ay siyang huling habilin o testamento ni Severina Gonzales, ay pinirmahan namin, bilang mga
saksi sa wakas at sa gilid ng bawa't dahon sa harap at sa kahilingan ng tinurang testadora, at ang bawat isa sa amin ay
pumirma sa harap ng lahat at bawat isa sa amin, ngayon ika dalawang po't tatlo ng noviembre ng taong 1920 ng taong
1920.

(Sgd.) ELEUTERIO NATIVIDAD


JUAN SUMULONG
FRANCISCO NATIVIDAD

The translation in English of the clauses quoted reads as follows:

In virtue of this will, consisting of six pages, that contains my last wish, and because of the fact that I cannot sign my
name, I request my niece Serapia de Gala to write my name, and above this I placed my right thumb-mark at the end of
this will and to each of the six pages of this document, and this was done at my direction and in the presence of three
attesting witnesses, this 23rd of November, 1920.

(Sgd.) SEVERINA GONZALES

We certify that this document, which is composed of six (6) sheets and was signed in our presence by Serapia de Gala
at the request of Severina Gonzales at the end and on the margins of each of the six (6) sheets and was declared to
contain the last will and testament of Severina Gonzales, was signed by us as witnesses at the end and on the margins
of each sheet in the presence and at the request of said testatrix, and each of us signed in the presence of all and each
of us, this 23rd day of November of the year 1920.

(Sgd.) ELEUTERIO NATIVIDAD


JUAN SUMULONG
FRANCISCO NATIVIDAD

As will be seen, it is not mentioned in the attestation clause that the testatrix signed by thumb-mark, but it does there appear that
the signature was affixed in the presence of the witnesses, and the form of the signature is sufficiently described and explained
in the last clause of the body of the will. It maybe conceded that the attestation clause is not artistically drawn and that, standing
alone, it does not quite meet the requirements of the statute, but taken in connection with the last clause of the body of the will, it
is fairly clear and sufficiently carries out the legislative intent; it leaves no possible doubt as to the authenticity of the document.

The contention of the appellants Sinforoso Ona and Apolinario Gonzales that the fact that the will had been signed in the
presence of the witnesses was not stated in the attestation clause is without merit; the fact is expressly stated in that clause.

In our opinion, the will is valid, and the orders appealed from are hereby affirmed without costs. So ordered.

- Garcia vs LACUESTA GR 4067


DIGEST

FACTS:

ISSUE:

HELD:

==================================

G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.


Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will
is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this attestation clause and that of the left margin of the three pages
thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and
understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them
were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and
each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three,
(1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A
reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his
name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty.
Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses;
(2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a
cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to
certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to
write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein
petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no
need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty.
Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having
been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by
which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and
the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each
other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

- Barut vs. Cabacungan, 21 Phil., 461 19 Phil 450

In the case of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of
the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs
his own or not. Cases of the same import areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil.,
330; Garcia vs. Lacuesta, 90 Phil., 489).

-------------------------------
nthecasofB
I arut v. Cabacungan, 21 Phil., 461, we held that the important thing isthat it clearly appears that the name of
the testatrix was signed at her express direction; it isunimportant whether the person who writes the name of the
testatrix signs his own or not. In thecase at bar the name of the testatrix, Anacleta Abellana, does not appear
written under the will bysaid Abellana herself, or by Dr. Juan Abello.

-------------------------------

G.R. No. L-6285 February 15, 1912

PEDRO BARUT, petitioner-appellant,


vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

A. M. Jimenez for appellant.


Ramon Querubin for appellees.

MORELAND, J.:

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No. 6284,1just decided by
this court, wherein there was an application for the probate of an alleged last will and testament of the same person the probate
of whose will is involved in this suit.

This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria Salomon,
deceased. It is alleged in the petition of the probate that Maria Salomon died on the 7th day of November, 1908, in the pueblo of
Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino
Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms of said will Pedro Barut
received the larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish appears at page 11.
After disposing of her property the testatrix revoked all former wills by her made. She also stated in said will that being unable to
read or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo
Agayan to sign her name to it as testatrix.

The probate of the will was contested and opposed by a number of the relatives of the deceased on various grounds, among
them that a later will had been executed by the deceased. The will referred to as being a later will is the one involved in case No.
6284 already referred to. Proceeding for the probate of this later will were pending at the time. The evidence of the proponents
and of the opponents was taken by the court in both cases for the purpose of considering them together.

In the case before us the learned probate court found that the will was not entitled to probate upon the sole ground that the
handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf looked more like the
handwriting of one of the other witnesses to the will than that of the person whose handwriting it was alleged to be. We do not
believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted testimony of
all the witnesses to the will that the signature of the testatrix was written by Severo Agayan at her request and in her presence
and in the presence of all the witnesses to the will. It is immaterial who writes the name of the testatrix provided it is written at
her request and in her presence and in the presence of all the witnesses to the execution of the will.

The court seems , by inference at least, to have had in mind that under the law relating to the execution of a will it is necessary
that the person who signs the name of the testatrix must afterwards sign his own name; and that, in view of the fact that, in the
case at bar, the name signed below that of the testatrix as the person who signed her name, being, from its appearance, not the
same handwriting as that constituting the name of the testatrix, the will is accordingly invalid, such fact indicating that the person
who signed the name of the testatrix failed to sign his own. We do not believe that this contention can be sustained. Section 618
of the Code of Civil Procedure reads as follows:

No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or
effect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other
person in his presence, and by his expenses direction, and attested and subscribed by three or more credible witnesses
in the presence of the testator and of each. . . .

This is the important part of the section under the terms of which the court holds that the person who signs the name of the
testator for him must also sign his own name The remainder of the section reads:

The attestation shall state the fact that the testator signed the will, or caused it to be signed by some other person, at
his express direction, in the presence of three witnesses, and that they attested and subscribed it in his presence and in
the presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that
the will was in fact signed and attested as in this section provided.

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

Nor is such requirement found in any other branch of the law. The name of a person who is unable to write may be signed by
another by express direction to any instrument known to the law. There is no necessity whatever, so far as the validity of the
instrument is concerned, for the person who writes the name of the principal in the document to sign his own name also. As a
matter of policy it may be wise that he do so inasmuch as it would give such intimation as would enable a person proving the
document to demonstrate more readily the execution by the principal. But as a matter of essential validity of the document, it is
unnecessary. The main thing to be established in the execution of the will is the signature of the testator. If that signature is
proved, whether it be written by himself or by another at his request, it is none the less valid, and the fact of such signature can
be proved as perfectly and as completely when the person signing for the principal omits to sign his own name as it can when he
actually signs. To hold a will invalid for the lack of the signature of the person signing the name of the principal is, in the
particular case, a complete abrogation of the law of wills, as it rejects and destroys a will which the statute expressly declares is
valid.

There have been cited three cases which it is alleged are in opposition to the doctrine which we have herein laid down. They
are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs.Concepcion (5 Phil. Rep., 551).
Not one of these cases is in point. The headnote in the case last above stated gives an indication of what all of cases are and
the question involved in each one of them. It says:

The testatrix was not able to sign it for her. Instead of writing her name he wrote his own upon the will. Held, That the
will was not duly executed.

All of the above cases are precisely of this character. Every one of them was a case in which the person who signed the will for
the testator wrote his own name to the will instead of writing that of the testator, so that the testator's name nowhere appeared
attached to the will as the one who executed it. The case of Ex parte Arcenas contains the following paragraph:

Where a testator does not know, or is unable for any reason, to sign the will himself, it shall be signed in the following
manner: "John Doe, by the testator, Richard Roe;" or in this form: "By the testator. John Doe, Richard Roe." All this
must be written by the witness signing at the request of the testator.

The only question for decision in that case, as we have before stated, was presented by the fact that the person who was
authorized to sign the name of the testator to the will actually failed to sign such name but instead signed his own thereto. The
decision in that case related only to that question.

Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no reason whatever why the
will involved in the present litigation should not be probated. The due and legal execution of the will by the testatrix is clearly
established by the proofs in this case. Upon the facts, therefore, the will must be probated. As to the defense of a subsequent
will, that is resolved in case No. 6284 of which we have already spoken. We there held that said later will not the will of the
deceased.

The judgment of the probate court must be and is hereby reversed and that court is directed to enter an order in the usual form
probating the will involved in this litigation and to proceed with such probate in accordance with law.

Arellano, C.J., Mapa and Carson, JJ., concur.

Separate Opinions

TORRES, J., concurring:

The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not expressly require that, when the
testator or testatrix is unable or does not know how to sign, the person who, in the presence and under the express direction of
either of them, writes in the name of the said testator or testatrix must also sign his own name thereto, it being sufficient for the
validity of the will that the said person so requested to sign the testator or testatrix write the name of either in his own
handwriting.

Since this court began to decide cases with regard to the form, conditions and validity of wills executed in accordance with the
provisions of the Code of Civil Procedure, never has the specific point just above mentioned been brought into question. Now for
the first time is affirmed in the majority opinion, written by the learned and distinguished Hon. Justice Moreland, that, not being
required by the said code, the signature of the name of the person who, at the request of the testator or testatrix, writes the
name of either of the latter to the will executed, is not necessary.

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

Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the probate of a will, reads as follows:

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

Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the probate of a will, states:

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

In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following statements appear:
Wills; inability to sign; signature by another. The testatrix was not able to sign her name to the will, and she
requested another person to sign it for her. Held, That the will was not duly executed. (Following Ex parte Arcenas et
al., No. 1708, August 24, 1905; Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Santiago, No. 2002,
August 18, 1905.)

The following syllabus precedes decision No. 3907:4

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

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

The following statement appears in the syllabus of case No. 4132, in the matter of the will of Maria Siason: 5

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

Moreover among the grounds given as a basis for this same decision, the following appears:

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

In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:

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

The syllabus of decision No. 51497 sets forth that:

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

Among the conclusions contained in this last decision the following is found:

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

It is true that in none of the decisions above quoted was the rule established that the person who, at the request of the testator
or testatrix, signed the latter's or the former's name and surname to the will must affix his own signature; but it no less true that,
in prescribing the method in which the provisions of the said section 618 to be complied with, it was stated that, in order that a
will so executed might be admitted to probate, it was an indispensable requisite that the person requested to sign in place of the
testator or testatrix, should write the latter's or the former's name and surname at the foot of the will in the presence and under
the direction of either, as the case might be, and should afterwards sign the instrument with his own name and surname.

The statement that the person who writes the name and surname of the testator or testatrix at the foot of the will should likewise
affix his own signature thereto, name and surname, though it be considered to be neither a rule nor a requisite necessary to
follow for the admission of the will to probate, yet it is unquestionable that, in inserting this last above-mentioned detail in the
aforesaid decisions, it was deemed to be a complement and integral part of the required conditions for the fulfillment of the
provisions of the law.

It is undisputable that the latter does not require the said subscription and signature of the person requested to affix to the will
the name of the testator or testatrix who is not able to sign; but by stating in the decisions hereinabove quoted that the name and
surname of the said person should be affixed by him, no act prohibited by law was recommended or suggested, nor may such a
detail be understood to be contrary or opposed to the plain provisions thereof.

In the preceding decision itself, it is recognized to be convenient and even prudent to require that the person requested to write
the name of the testator or testatrix in the will also sign the instrument with his own name and surname. This statement induces
us to believe that, in behalf of the inhabitants of this country and for sake of an upright administration of justice, it should be
maintained that such a signature must appear in the will, since no harm could accrue to anyone thereby and, on the contrary, it
would serve as a guarantee of the certainty of the act performed and also might eliminate some possible cause of controversy
between the interested parties.

The undersigned feels it his duty to admit that, though convinced of the complete repeal of article 695 of the Civil Code and,
while he conceded that, in the examination and qualification of a will for the purpose of its probate, one has but to abide by the
provisions of said section 618 of the Code of Civil Procedure, the sole law applicable in the matter, yet, perhaps imbued with the
strongly impelled by a traditional conception of the laws which he has known since youth, relative to the form of execution of
testaments, he believed it to be a vary natural and common sense requisite that the signature, with his own name and surname,
of the person requested to write in the will the name and surname of the testator or testatrix should form a part of the provisions
of the aforementioned section 618.

He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the person before referred to a requisite
deemed to be convenient and prudent in the majority opinion formed a part of the provisions of the law, since the latter
contains nothing that prohibits it. The aforementioned different decisions were drawn up in the form in which they appear, and
signed without dissent by all the justices of the court on various dates. None of them hesitated to sign the decisions,
notwithstanding that it was expressly held therein that the person above mentioned should, besides writing in the will the name
and surname of the testator or testatrix, also sign the said instrument with his own name and surname.

Without being understood to criticize the provision contained in the said section 618 of the Code of Civil Procedure it will not be
superfluous to mention that the system adopted in this section is the same as was in vogue under the former laws that governed
in these Islands, with respect to witnesses who were not able or did not know how to sign their testimony given in criminal or civil
cases, in which event any person at all might write the name and surname of the witness who was unable or did not know how
to sign, at the foot of his deposition, where a cross was then drawn, and, this done, it was considered that the instrument had
been signed by the witness, though it is true that all these formalities were performed before the judge and the clerk or secretary
of the court, which thereupon certified that such procedure was had in accordance with the law.

The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure, the person who writes the name and
surname of the testator or testatrix does so by the order and express direction of the one or of the other, and this fact must be
recorded in the will; but in the matter of the signature of a deposition, the witness, who could not or did not know how to sign, did
not need to designate anyone to write the deponent's name and surname, and in practice the witness merely made a cross
beside his name and surname, written by whomever it be.

With regard to the execution of wills in accordance with the provisions of previous statutes, among them those of the Civil Code,
the person or witness requested by the testator or testatrix who was not able or did not know how to sign, authenticated the will
by signing it with his own name and surname, preceded by the words "at the request of the testator or testatrix." Paragraph 2 of
article 695 of the Civil Code contains the following provisions bearing on the subject:

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

So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed by the old laws with respect to
the signing of a will by a testator or testatrix who did not know how or who could not sign, consisted in that the person appointed
and requested by the testator or testatrix to sign in his or her stead, such fact being recorded in the will, merely affixed at the
bottom of the will and after the words "at the request of the testator," his own name, surname and paragraph.

It is not at all strange that the attorneys of this country, imbued with and inspired by these legal provisions, which it may said, are
traditional to them in the ideas they have formed of the existing laws in the matter of procedure in compliance therewith as
regards the execution and signing of a will, should have believed that, after the name and surname of the testator or testatrix
had been written at the foot of the will, the person who signed the instrument in the manner mentioned should likewise sign the
same with his own name and surname.

If in various decisions it has been indicated that the person who, under the express direction of the testator or testatrix, wrote the
latter's or the former's name and surname, should also sign the will with his own name and surname, and since this suggestion
is not opposed or contrary to the law, the undersigned is of opinion that it ought not to be modified or amended, but that, on the
contrary, it should be maintained as a requisite established by the jurisprudence of this court, inasmuch as such a requisite is
not contrary to law, to public order, or to good custom, is in consonance with a tradition of this country, does not prejudice the
testator nor those interested in an inheritance, and, on the contrary, constitutes another guarantee of the truth and authenticity of
the letters with which the name and surname of the testator of testatrix are written, in accordance with his or her desire as
expressed in the will.

Even though the requisites referred to were not recognized in jurisprudence and were unsupported by any legal doctrine
whatever, yet, since it is in harmony with the juridical usages and customs observed in this country, it ought, in the humble
opinion of the writer, to be maintained for the benefit of the inhabitants of the Islands and for the sake of a good administration of
justice, because it is not a question of a dangerous innovation or of one prejudicial to the public good, but a matter of the
observance of a convenient, if not a necessary detail, introduced by the jurisprudence of the courts and which in the present
case has filed a vacancy left by the positive written law.

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

G.R. No. L-5971 February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,


vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.


Anacleto Diaz for appellees.

CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will
in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed
at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time
he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across
which was hung a curtain which made it impossible for one in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small room with the
testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and
this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document
to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital importance in
the determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the
testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this
subscribing witness been proven to have been in the outer room at the time when the testator and the other
subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a
will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the
outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses
would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of
inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have been seen each other sign, had they chosen to
do so, considering their mental and physical condition and position with relation to each other at the moment
of inscription of each signature.

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

The decree entered by the court below admitting the instrument propounded therein to probate as the last will and
testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

G.R. No. 1641 January 19, 1906

GERMAN JABONETA, plaintiff-appellant,


vs.
RICARDO GUSTILO, ET AL., defendants-appellees.

Ledesma, Sumulong and Quintos for appellant.


Del-Pan, Ortigas and Fisher for appellees.

CARSON, J.:

In these proceedings probate was denied the last will and testament of MacarioJaboneta, deceased, because the
lower court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the witnesses,
did not attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, as required by the
provisions of section 618 of the Code of Civil Procedure.

The following is a copy of the evidence which appears of record on this particular point, being a part of the testimony
of the said Isabeo Jena:

Q. 1641 Who first signed the will?

A. 1641 I signed it first, and afterwards Aniceto and the others.


Q. 1641 Who were those others to whom you have just referred?

A. 1641 After the witness Aniceto signed the will I left the house, because I was in a hurry, and at the
moment when I was leaving I saw Julio Javellana with the pen in his hand in position ready to sign (en
actitud de firmar). I believe he signed, because he was at the table. . . .

Q. 1641 State positively whether Julio Javellana did or did not sign as a witness to the will.

A. 1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana with the pen in
his hand, in position ready to sign. I believe he signed.

Q. 1641 Why do you believe Julio Javellana signed?

A. 1641 Because he had the pen in his hand, which was resting on the paper, though I did not actually
see him sign.

Q. 1641 Explain this contradictory statement.

A. 1641 After I signed I asked permission to leave, because I was in a hurry, and while I was leaving
Julio had already taken the pen in his hand, as it appeared, for the purpose of signing, and when I was near
the door I happened to turn my face and I saw that he had his hand with the pen resting on the will, moving it
as if for the purpose of signing.

Q. 1641 State positively whether Julio moved his hand with the pen as if for the purpose of signing, or
whether he was signing

A. I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of the
parties to the proceedings, but the court, nevertheless, found the following facts:

On the 26th day of December, 1901, MacarioJaboneta executed under the following circumstances the
document in question, which has been presented for probate as his will:

Being in the house of ArcadioJarandilla, in Jaro, in this province, he ordered that the document in question
be written, and calling Julio Javellana, AnicetoJalbuena, and Isabelo Jena as witnesses, executed the said
document as his will. They were all together, and were in the room where Jaboneta was, and were present
when he signed the document, Isabelo Jena signing afterwards as a witness, at his request, and in his
presence and in the presence of the other two witnesses. AnicetoJalbuena then signed as a witness in the
presence of the testator, and in the presence of the other two persons who signed as witnesses. At that
moment Isabelo Jena, being in a hurry to leave, took his hat and left the room. As he was leaving the house
Julio Javellana took the pen in his hand and put himself in position to sign the will as a witness, but did not
sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio Javellana
signed as a witness in the presence of the testator and of the witness AnicetoJalbuena.

We can not agree with so much of the above finding of facts as holds that the signature of Javellana was not signed
in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil Procedure. The fact
that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to
the will, taken together with the testimony of the remaining witnesses which shows that Javellana did in fact there
and then sign his name to the will, convinces us that the signature was affixed in the presence of Jena. The fact that
he was in the act of leaving, and that his back was turned while a portion of the name of the witness was being
written, is of no importance. He, with the other witnesses and the testator, had assembled for the purpose of
executing the testament, and were together in the same room for that purpose, and at the moment when the witness
Javellana signed the document he was actually and physically present and in such position with relation to Javellana
that he could see everything which took place by merely casting his eyes in the proper direction, and without any
physical obstruction to prevent his doing so, therefore we are of opinion that the document was in fact signed before
he finally left the room.

The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be that
the testator may have ocular evidence of the identity of the instrument subscribed by the witness and
himself, and the generally accepted tests of presence are vision and mental apprehension. (See Am. & Eng.
Enc. of Law, vol. 30, p. 599, and cases there cited.)

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together for the
purpose of witnessing the execution of the will, and in a position to actually see the testator write, if they choose to
do so; and there are many cases which lay down the rule that the true test of vision is not whether the testator
actually saw the witness sign, but whether he might have seen him sign, considering his mental and physical
condition and position at the time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)

The principles on which these cases rest and the tests of presence as between the testator and the witnesses are
equally applicable in determining whether the witnesses signed the instrument in the presence of each other, as
required by the statute, and applying them to the facts proven in these proceedings we are of opinion that the
statutory requisites as to the execution of the instrument were complied with, and that the lower court erred in
denying probate to the will on the ground stated in the ruling appealed from.
We are of opinion from the evidence of record that the instrument propounded in these proceedings was
satisfactorily proven to be the last will and testament of MacarioJaboneta, deceased, and that it should therefore be
admitted to probate.

The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days the record
will be returned to the court form whence it came, where the proper orders will be entered in conformance herewith.
So ordered.

Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.

- CALO vs.ROLDAN G.R 252 March 30, 1946

G.R. No. L-252 March 30, 1946

TRANQUILINO CALO and DOROTEO SAN JOSE, petitioners,


vs.
ARSENIO C. ROLDAN, Judge of First Instance of Laguna, REGINO RELOVA and TEODULA BARTOLOME,respondents.

Zosimo D. Tanalega for petitioners.


Estanislao A. Fernandez for respondents Relova and Bartolome.
No appearance for respondent Judge.

FERIA, J.:

This is a petition for writ of certiorari against the respondent Judge Arsenio C. Roldan of the Court First Instance of Laguna, on
the ground that the latter has exceeded his jurisdiction or acted with grave abuse of discretion in appointing a receiver of certain
lands and their fruits which, according to the complainant filed by the other respondents, as plaintiffs, against petitioners, as
defendants, in case No. 7951, were in the actual possession of and belong to said plaintiffs.

The complaint filed by plaintiffs and respondents against defendants and petitioners in the Court of First Instance of Laguna
reads as follows:

1. That the plaintiffs and the defendants are all of legal age, Filipino citizens, and residents of Pila, Laguna; the plaintiffs
are husband and wife..

2. That the plaintiff spouses are the owners and the possessors of the following described parcels of land, to wit:.

xxx xxx xxx

3. That parcel No. (a) described above is now an unplanted rice land and parcel No. (b) described in the complaint is a
coconut land, both under the possession of the plaintiffs..

4. That the defendants, without any legal right whatsoever and in connivance with each other, through the use of force,
stealth, threats and intimidation, intend or are intending to enter and work or harvest whatever existing fruits may now
be found in the lands above-mentioned in violation of plaintiff's in this case ineffectual..

5. That unless defendants are barred, restrained, enjoined, and prohibited from entering or harvesting the lands or
working therein through ex-parte injunction, the plaintiffs will suffer injustice, damages and irreparable injury to their
great prejudice..

6. That the plaintiffs are offering a bond in their application for ex-parte injunction in the amount of P2,000, subject to the
approval of this Hon. Court, which bond is attached hereto marked as Annex A and made an integral part of this
complaint..

7. That on or about June 26, 1945, the defendants, through force, destroyed and took away the madre-cacao fencer,
and barbed wires built on the northwestern portion of the land designated as parcel No. (b) of this complaint to the
damage and prejudice of the plaintiffs in the amount of at least P200..

Wherefore, it is respectfully prayed:.

(a) That the accompanying bond in the amount of P2,000 be approved;

(b) That a writ of preliminary injunction be issued ex-parte immediately restraining, enjoining and prohibiting the
defendants, their agents, servants, representatives, attorneys, and, (or) other persons acting for and in their behalf, from
entering in, interfering with and/or in any wise taking any participation in the harvest of the lands belonging to the
plaintiffs; or in any wise working the lands above-described;

(c) That judgment be rendered, after due hearing, declaring the preliminary injunction final;.

(d) That the defendants be condemned jointly and severally to pay the plaintiffs the sum of P200 as damages; and.

(e) That plaintiffs be given such other and further relief just and equitable with costs of suit to the defendants.

The defendants filed an opposition dated August 8, 1945, to the issuance of the writ of preliminary injunction prayed for in the
above-quoted complaint, on the ground that they are owners of the lands and have been in actual possession thereof since the
year 1925; and their answer to the complaint filed on August 14, 1945, they reiterate that they are the owners and were then in
actual possession of said property, and that the plaintiffs have never been in possession thereof.

The hearing of the petition for preliminary injunction was held on August 9, 1945, at which evidence was introduced by both
parties. After the hearing, Judge Rilloraza, then presiding over the Court of First Instance of Laguna, denied the petition on the
ground that the defendants were in actual possession of said lands. A motion for reconsideration was filed by plaintiffs on
August 20, 1945, but said motion had not yet, up to the hearing of the present case, been decided either by Judge Rilloraza,
who was assigned to another court, or by the respondent judge.

The plaintiffs (respondents) filed on September 4, 1945, a reply to defendants' answer in which, among others, they reiterate
their allegation in the complaint that they are possessors in good faith of the properties in question.

And on December 17, plaintiffs filed an urgent petition ex-parte praying that plaintiffs' motion for reconsideration of the order
denying their petition for preliminary injunction be granted and or for the appointment of a receiver of the properties described in
the complaint, on the ground that (a) the plaintiffs have an interest in the properties in question, and the fruits thereof were in
danger of being lost unless a receiver was appointed; and that (b) the appointment of a receiver was the most convenient and
feasible means of preserving, administering and or disposing of the properties in litigation which included their fruits.
Respondents Judge Roldan, on the same date, December 17, 1945, decided that the court would consider the motion for
reconsideration in due time, and granted the petition for appointment of and appointed a receiver in the case.

The question to be determined in the present special civil action of certiorari is, whether or not the respondent judge acted in
excess of his jurisdiction or with grave abuse of discretion in issuing the order appointing a receiver in the case No. 7951 of the
Court of First Instance of Laguna; for it is evident that there is no appeal or any other plain, speedy, and adequate remedy in the
ordinary course of the law against the said order, which is an incidental or interlocutory one.

It is a truism in legal procedure that what determines the nature of an action filed in the courts are the facts alleged in the
complaint as constituting the cause of the action. The facts averred as a defense in the defendant's answer do not and can not
determine or change the nature of the plaintiff's action. The theory adopted by the plaintiff in his complaint is one thing, and that
of the defendant in his answer is another. The plaintiff has to establish or prove his theory or cause of action in order to obtain
the remedy he prays for; and the defendant his theory, if necessary, in order to defeat the claim or action of the plaintiff..

According to the complaint filed in the said case No. 7951, the plaintiff's action is one of ordinary injunction, for the plaintiffs
allege that they are the owners of the lands therein described, and were in actual possession thereof, and that "the defendants
without any legal right whatever and in connivance with each other, through the use of force, stealth, threat and intimidation,
intend or are intending to enter and work or harvest whatever existing fruits may be found in the lands above mentioned in
violation of plaintiffs' proprietary rights thereto;" and prays "that the defendants, their agents, servants, representatives, and
other persons acting for or in their behalf, be restrained, enjoined and prohibited from entering in, interfering with, or in any way
taking any participation in the harvest of the lands above describe belonging to the plaintiffs."

That this is the nature of plaintiffs' action corroborated by the fact that they petitioned in the same complaint for a preliminary
prohibitory injunction, which was denied by the court in its order dated August 17, 1945, and that the plaintiffs, in their motion for
reconsideration of said order filed on August 20 of the same year, and in their urgent petition dated December 17, moving the
court to grant said motion for reconsideration, reiterated that they were actual possessors of the land in question.

The fact that plaintiffs, in their reply dated September 4, after reiterating their allegation or claim that they are the owners in fee
simple and possessors in good faith of the properties in question, pray that they be declared the owners in fee simple, has not
changed the nature of the action alleged in the complaint or added a new cause of action thereto; because the allegations in
plaintiffs' reply were in answer to defendants' defenses, and the nature of plaintiffs' cause of action, as set forth in their
complaint, was not and could not be amended or changed by the reply, which plaintiffs had the right to present as a matter of
course. A plaintiff can not, after defendant's answer, amend his complaint by changing the cause of action or adding a new one
without previously obtaining leave of court (section 2, Rule 17)..

Respondents' contention in paragraph I of their answer that the action filed by them against petitioners in the case No. 7951 of
the Court of First Instance of Laguna is not only for injunction, but also to quiet title over the two parcels of land described in the
complaint, is untenable for the reasons stated in the previous paragraph. Besides, an equitable action to quiet title, in order to
prevent harrassment by continued assertion of adverse title, or to protect the plaintiff's legal title and possession, may be filed in
courts of equity (and our courts are also of equity), only where no other remedy at law exists or where the legal remedy
invokable would not afford adequate remedy (32 Cyc., 1306, 1307). In the present case wherein plaintiffs alleged that they are
the owners and were in actual possession of the lands described in the complaint and their fruits, the action of injunction filed by
them is the proper and adequate remedy in law, for a judgment in favor of plaintiffs would quiet their title to said lands..

The provisional remedies denominated attachment, preliminary injunction, receivership, and delivery of personal property,
provided in Rules 59, 60, 61, and 62 of the Rules of Court, respectively, are remedies to which parties litigant may resort for the
preservation or protection of their rights or interest, and for no other purpose, during the pendency of the principal action. If an
action, by its nature, does not require such protection or preservation, said remedies can not be applied for and granted. To
each kind of action or actions a proper provisional remedy is provided for by law. The Rules of Court clearly specify the case in
which they may be properly granted. .

Attachment may be issued only in the case or actions specifically stated in section 1, Rule 59, in order that the defendant may
not dispose of his property attached, and thus secure the satisfaction of any judgment that may be recovered by plaintiff from
defendant. For that reason a property subject of litigation between the parties, or claimed by plaintiff as his, can not be attached
upon motion of the same plaintiff..

The special remedy of preliminary prohibitory injunction lies when the plaintiff's principal action is an ordinary action of injunction,
that is, when the relief demanded in the plaintiff's complaint consists in restraining the commission or continuance of the act
complained of, either perpetually or for a limited period, and the other conditions required by section 3 of Rule 60 are present.
The purpose of this provisional remedy is to preserve the status quo of the things subject of the action or the relation between
the parties, in order to protect the rights of the plaintiff respecting the subject of the action during the pendency of the suit.
Because, otherwise or if no preliminary prohibition injunction were issued, the defendant may, before final judgment, do or
continue the doing of the act which the plaintiff asks the court to restrain, and thus make ineffectual the final judgment rendered
afterwards granting the relief sought by the plaintiff. But, as this court has repeatedly held, a writ of preliminary injunction should
not be granted to take the property out of the possession of one party to place it in the hands of another whose title has not been
clearly established..

A receiver may be appointed to take charge of personal or real property which is the subject of an ordinary civil action, when it
appears that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of
the action or litigation, and that such property or fund is in danger of being lost, removed or materially injured unless a receiver is
appointed to guard and preserve it (section 1 [b], Rule 61); or when it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering or disposing of the property in litigation (section 1 [e] of said Rule).
The property or fund must, therefore be in litigation according to the allegations of the complaint, and the object of appointing a
receiver is to secure and preserve the property or thing in controversy pending the litigation. Of course, if it is not in litigation and
is in actual possession of the plaintiff, the latter can not apply for and obtain the appointment of a receiver thereof, for there
would be no reason for such appointment.

Delivery of personal property as a provisional remedy consists in the delivery, by order of the court, of a personal property by the
defendant to the plaintiff, who shall give a bond to assure the return thereof or the payment of damages to the defendant in the
plaintiff's action to recover possession of the same property fails, in order to protect the plaintiff's right of possession of said
property, or prevent the defendant from damaging, destroying or disposing of the same during the pendency of the suit.

Undoubtedly, according to law, the provisional remedy proper to plaintiffs' action of injunction is a preliminary prohibitory
injunction, if plaintiff's theory, as set forth in the complaint, that he is the owner and in actual possession of the premises is
correct. But as the lower court found at the hearing of the said petition for preliminary injunction that the defendants were in
possession of the lands, the lower court acted in accordance with law in denying the petition, although their motion for
reconsideration, which was still pending at the time the petition in the present case was heard in this court, plaintiffs insist that
they are in actual possession of the lands and, therefore, of the fruits thereof.

From the foregoing it appears evident that the respondent judge acted in excess of his jurisdiction in appointing a receiver in
case No. 7951 of the Court of First Instance of Laguna. Appointment of a receiver is not proper or does not lie in an action of
injunction such as the one filed by the plaintiff. The petition for appointment of a receiver filed by the plaintiffs (Exhibit I of the
petition) is based on the ground that it is the most convenient and feasible means of preserving, administering and disposing of
the properties in litigation; and according to plaintiffs' theory or allegations in their complaint, neither the lands nor the palay
harvested therein, are in litigation. The litigation or issue raised by plaintiffs in their complaint is not the ownership or possession
of the lands and their fruits. It is whether or not defendants intend or were intending to enter or work or harvest whatever existing
fruits could then be found in the lands described in the complaint, alleged to be the exclusive property and in the actual
possession of the plaintiffs. It is a matter not only of law but of plain common sense that a plaintiff will not and legally can not ask
for the appointment or receiver of property which he alleges to belong to him and to be actually in his possession. For the owner
and possessor of a property is more interested than persons in preserving and administering it.

Besides, even if the plaintiffs had amended their complaint and alleged that the lands and palay harvested therein are being
claimed by the defendants, and consequently the ownership and possession thereof were in litigation, it appearing that the
defendants (now petitioners) were in possession of the lands and had planted the crop or palay harvested therein, as alleged in
paragraph 6 (a) and (b) of the petition filed in this court and not denied by the respondent in paragraph 2 of his answer, the
respondent judge would have acted in excess of his jurisdiction or with a grave abuse of discretion in appointing a receiver
thereof. Because relief by way of receivership is equitable in nature, and a court of equity will not ordinarily appoint a receiver
where the rights of the parties depend on the determination of adverse claims of legal title to real property and one party is in
possession (53 C. J., p. 26). The present case falls within this rule..

In the case of Mendoza vs. Arellano and B. de Arellano, this court said:

Appointments of receivers of real estate in cases of this kind lie largely in the sound discretion of the court, and where
the effect of such an appointment is to take real estate out of the possession of the defendant before the final
adjudication of the rights of the parties, the appointment should be made only in extreme cases and on a clear showing
of necessity therefor in order to save the plaintiff from grave and irremediable loss or damage. (34 Cyc., 51, and cases
there cited.) No such showing has been made in this case as would justify us in interfering with the exercise by trial
judge of his discretion in denying the application for receiver. (36 Phil., 59, 63, 64.).

Although the petition is silent on the matter, as the respondents in their answer allege that the Court of First Instance of Laguna
has appointed a receiver in another case No. 7989 of said court, instituted by the respondents Relova against Roberto Calo and
his brothers and sisters, children of Sofia de Oca and Tranquilino Calo (petitioner in this case), and submitted copy of the
complaint filed by the plaintiffs (now respondents) in case No. 7989 (Exhibit 9 of the respondents' answer), we may properly
express and do hereby express here our opinion, in order to avoid multiplicity of suits, that as the cause of action alleged in the
in the complaint filed by the respondents Relova in the other case is substantially the same as the cause of action averred in the
complaint filed in the present case, the order of the Court of First Instance of Laguna appointing a receiver in said case No. 7989
was issued in excess of its jurisdiction, and is therefore null and void.

In view of all the foregoing, we hold that the respondent Judge Arsenio C. Roldan of the Court of First Instance of Laguna has
exceeded his jurisdiction in appointing a receiver in the present case, and therefore the order of said respondent judge
appointing the receiver, as well as all other orders and proceedings of the court presided over by said judge in connection with
the receivership, are null and void.

As to the petitioners' petition that respondents Relova be punished for contempt of court for having disobeyed the injunction
issued by this court against the respondents requiring them to desist and refrain from enforcing the order of receivership and
entering the palay therein, it appearing from the evidence in the record that the palay was harvested by the receiver and not by
said respondents, the petition for contempt of court is denied. So ordered, with costs against the respondents.

Moran, C. J., Ozaeta, Jaranilla, De Joya, Pablo, Perfecto, Hilado, and Bengzon, JJ., concur.

Separate Opinions

BRIONES, con quien esta conforme PARAS, M., conforme:


Estoy conforme con la parte dispositiva por la unica razon, breve pero lucidamente expuesta en la ponencia, de que cuando hay
controversia sobre el titulo de propiedad noo debe utilizarse el nombramiento de depositario para pertubar el status quo
transladando la posesion del terreno litigioso de una parte a otra. Solamente cuando el dominio es indisputable verbigracia,
hay de por medio un titulo Torrens cabe nombrar un depositario para los fines espicificos senalados por la ley, entre ellos
principalmente la preservacion del objeto litigioso cuando corre el peligro de danarse o echarse a perder.

- RODELAS V. ARANZA 119 SCRA 16


CASE DIGEST: RODELAS V. ARANZA (119 SCRA 16)

Rodelas v. Aranza
119 SCRA 16

FACTS:

Rodelas filed a petition with the CFI of Rizal for the probate of the holographic will of Ricardo B. Bonilla and
the issuance of letters testamentary in her favor.
Aranza, et al. filed a MTD on the grounds of:

1.Rodelas was estopped from claiming that the deceased left a will by failing to produce the will within twenty
days of the death of the testator as required by Rule 75, section 2 of the Rules of Court;

2.the copy of the alleged holographic will did not contain a disposition of property after death and was not
intended to take effect after death, and therefore it was not a will, it was merely an instruction as to the
management and improvement of the schools and colleges founded by the decedent;

3.the hollographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no
effect because lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary
wills.

4.the deceased did not leave any will, holographic or otherwise, executed and attested as required by law.

MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition.

The CFI set aside its order and dismissed the petition for the probate of the will stating that in the case of Gam
vs. Yap, 104 Phil. 509, 522, the Supreme Court held that in the matter of holographic wills the law, it is
reasonable to suppose, regards the document itself as the material proof of authenticity of said wills.

And that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May
13, 1976. The lapse of more than 14 years from the time of the execution of the will to the death of the decedent
and the fact that the original of the will could not be located shows to that the decedent had discarded the
alleged holographic will before his death.

Rodelas filed an MR which was denied. Rodelas appealed to the CA. Aranza et al. moved to forward the case to
the SC as it involves a question of law not of fact.

ISSUE:

W/N a holographic will which was lost or cannot be found can be proved by means of a photostatic copy.

HELD:

If the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated
because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the handwritten will.

But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made
by the probate court with the standard writings of the testator. The probate court would be able to determine
the authenticity of the handwriting of the testator.

In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read
such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document
itself as material proof of authenticity. But, in Footnote 8 of said decision, it says that Perhaps it may be
proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar
means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before
the probate court,

-------------------------------------------

Rodelas vs Aranza 119 SCRA 16If the holographic will has been lost or destroyed and no other copy is available, the will
cannot be probated because the best and only evidence is the handwriting of thetestator. But a photostatic copy or
Xerox copy of the holographic will may be allowedbecause comparison can be made with the standard writings of the
testator.

-------------------------------------------

G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the
Rules of Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition,
docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla
Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty
days of the death of the testator as required by Rule 75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was
not intended to take effect after death, and therefore it was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would
produce no effect, as held in Gam v. Yap, 104 Phil. 509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.

The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their
motion was granted by the court in an order dated April 4, 1977.

On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the
petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the management and
improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23,
1979.

The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and
settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On
July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of
the will of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot
stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills
the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said
wills.

MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while
Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the
execution of the will to the death of the decedent, the fact that the original of the will could not be located shows
to our mind that the decedent had discarded before his death his allegedly missing Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the
dismissal of appellant's petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of
fact and alleged that the trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED
BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS
DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

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

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August
9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.

SO ORDERED.

- CAGRO v CAGRO G.R. No. L-5826. April 29, 1953 92 PHIL 1032
[G.R. No. L-5826. April 29, 1953.]

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, Petitioner-Appellee, v. PELAGIO CAGRO, ET AL., Oppositors-
Appellants.

Clouduallo Lucero and Vicente C. Santos for Appellants.

Marciano Chitongco and Zosimo B. Echanova for Appellee.

SYLLABUS

1. WILLS; ATTESTATION CLAUSE; LACK OF SIGNATURES OF ATTESTING WITNESSES AT BOTTOM OF ATTESTATION CLAUSE, IS FATAL
DEFECT. Inasmuch as the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin, the will is fatally defective. The attestation clause is "a
memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily
bear their signatures.

DECISION

PARAS, C.J. :

This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to probate the will allegedly
executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.

The main objection insisted upon by the appellants is that the will is fatally defective, because its attestation clause is not signed by the
attesting witnesses. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending the
execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives
their participation.

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

Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs against the petitioner and
appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions

BAUTISTA ANGELO, J., dissenting: chanrob1e s virtual 1aw l ibrary

I dissent. In my opinion the will in question has substantially complied with the formalities of the law and, therefore, should be admitted to
probate. It appears that the will was signed by the testator and was attested by three instrumental witnesses, not only at the bottom, but
also on the left-hand margin. The witnesses testified not only that the will was signed by the testator in their presence and in the presence of
each other but also that when they did so, the attestation clause was already written thereon. Their testimony has not been contradicted. The
only objection set up by the oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do not appear
immediately after the attestation clause.

This objection is too technical to be entertained. In the case of Abangan v. Abangan, (40 Phil., 476), this court said that when the
testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant
case), their signatures on the left margin of said sheet would be completely purposeless." In such a case, the court said, the requirement of
the signatures on the left hand margin was not necessary because the purpose of the law which is to avoid the substitution of any of the
sheets of the will, thereby changing the testators dispositions has already been accomplished. We may say the same thing in connection
with the will under consideration because while the three instrumental witnesses did not sign immediately after the attestation clause, the
fear entertained by the majority that it may have been only added on a subsequent occasion and not at the signing of the will, has been
obviated by the uncontradicted testimony of said witnesses to the effect that such attestation clause was already written in the will when the
same was signed.

The following observation made by this court in the Abangan case is very fitting: jgc:chanrobles. com.ph

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

We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose of which, in case of
doubt, is to give such interpretation that would have the effect of preventing intestacy (articles 788 and 791, New Civil Code).

I am therefore of the opinion that the will in question should be admitted to probate.

Feria, J., concurs.

TUASON, J., dissenting: chanrob1es vi rtu al 1aw li bra ry

I concur in Mr. Justice Bautistas dissenting opinion and may add that the majority decision erroneously sets down as a fact that the
attestation clause was not signed, when the witnesses signatures appear on the left margin and the real and only question is whether such
signatures are legally sufficient.

The only answer, in our humble opinion, is yes. The law on wills does not provide that the attesting witness should sign the clause at the
bottom. In the absence of such provision, there is no reason why signatures on the margin are not good. A letter is not any the less the
writers simply because it was signed, not at the conventional place but on the side or on top.

- Cruz v. Villasor, L-32213, November 26, 1973, 54 SCRA 31.

G.R. No. L-40804 January 31, 1978

ROSARIO FELICIANO VDA. DE RAMOS, MIGUEL DANILA, RAYMUNDO A. DANILA, CONSOLACION SANTOS, MIGUEL
G. DANILA, AMOR DANILA, MOISES MARTINEZ, MIGUELA GAVINO, MELITON NISTA, PRIMITIVA NISTA, HEIRS OF
DANIEL NISTA, MOISES NISTA, DOMINGO NISTA and ADELAIDA NISTA, petitioners,
vs.
COURT OF APPEALS, MARCELINA (MARTINA) GUERRA and THE HEIRS OF BUENAVENTURA GUERRA, respondents.

Ernesto C. Hidalgo for petitioners.

Romulo S. Brion & Florentino M. Poonin for private respondents.

GUERRERO, J.:

Appeal by way of certiorari of the decision 1 of the Court of Appeals in CA-G.R. No. 49915-R, entitled "Adelaida Nista
Petitioner-appellee, versus Buenaventura Guerra, et al., Oppositors -Appellants, " denying and disallowing the probate of
the second last will and codicil of the late Eugenia Danila previously probated by the Court of First Instance of Laguna
Branch III at San Pablo City.

The facts are rotated in the appealed decision. the pertinent portions of which state:

It appears that on June 2, 1966, Adelaida Nista who claimed to be one of the instituted heirs, filed a petition for
the probate of the alleged will and testament dated March 9, 1963 (Exhibit H) and codicil dated April 18, 1963
(Exhibit L) of the late Eugenia Danila who died on May 21, 1966. The petitioner prayed that after due notice
and proper hearing, the alleged will and codicil be probates and allowed and that she or any other person be
appointed as administrator of the testatrix's estate. She also prayed that in case no opposition thereto be
interposed and the value of the estate be less than P10,000.00, said estate be summarily settled in accordance
with the Rules.

Buenaventura and Marcelina (Martina) both surnamed Guerra filed an opposition on July 18, 1966 and an
amended opposition on August 19, 1967, to the petition alleging among others that they are the legally adopted
son and daughter of the late spouses Florentino Guerra and Eugenia Danila (Exhibit 1); that the purported will
and codicil subject of the petition (Exhibits H and L) were procured through fraud and undue influence; that the
formalities requited by law for the execution of a will and codicil have not been complied with as the same were
not properly attested to or executed and not expressing the free will and deed of the purported testatrix; that the
late Eugenia Danila had already executed on November 5, 1951 her last will and testament (Exhibit 3) which
was duly probated (Exhibit 4) and not revoked or annulled during the lifetime of the testatrix, and that the
petitioner is not competent and qualified to act as administration of the estate.

On November 4, 1968, the petitioner and the oppositors, assisted by their respective counsels, entered into a
Compromise Agreement with the following terms and conditions, thus:
1. That oppositors Buenaventura Guerra and Marcelina (Martina) Guerra are the legally adopted son and
daughter, respectively, of the deceased spouses, Florentino Guerra and Eugenia Manila;

2. That Florentino Guerra pre-deceased Eugenia Danila that Eugenia Danila died on May 21, 1966, at San
Pablo City, but during her lifetime, she had already sold, donated or disposed of all her properties, some of
which to Marcelina Martina Guerra, as indicated and confirmed in paragraph 13 of the Complaint in Civil Case
No. SP620, entitled Marcelina Guerra versus Adelaida Nista, et al., and Which We hereby 'likewise admit and
confirm;

3. That, however, with respect to the parcel of riceland covered by TCT No. T-5559 of the Register of Deeds of
San Pablo City, which oppositors believe to be the estate left and undisposed of at the time of the death of the
owner thereof, Eugenia Danila it now appears that there is a Deed of Donation covering the same together with
another parcel of coconut land situated at Barrio San Ignacio, San Pablo City, with an area of 19,905 sq.m.,
and covered by Tax Declaration No. 31286, executed by the late Eugenia Danila in favor of Adelaida Nista, as
per Doc. No. 406, Page No. 83, Series of 1966 under Notarial Register III of Notary Public Pio Aquino of San
Pablo city;

4. That inasmuch as the above-mentioned parcel of coconut and has been earlier donated inter vivos and
validly conveyed on November 15, 1965 by the late Eugenia Danila to Marcelina (Martina) Guerra as shown by
Doc. No. 237, Page No. 49, Series of 1965, under Notarial Register XV of Notary Public Atty. Romulo S. Brion
of San Pablo City, the inclusion of said parcel in the subsequent donation to Adelaida Nista is admittedly
considered a mistake and of no force and effect and will in no way prejudice the ownership and right of
Marcelina Martina Guerra over the said parcel; that as a matter of fact Whatever rights and interests Adelaida
Nista has or may still have thereon are already considered waived and renounced in favor of Marcelina Martina
Guerra;

5. That in view of the fact that the riceland mentioned in paragraph 3 of the foregoing appears to have already
been disposed of by Eugenia Danila in favor of petitioner Adelaida Nista which the parties hereto do not now
contest, there is therefore no more estate left by the said deceased Eugenia Danila to he disposed of by the will
sought to be probated in this proceedings; that consequently, and for the sake of peace and harmony money
among the relations and kins and adopted children of the deceased Eugenia Danila and with the further aim of
settling differences among themselves, the will and codicil of Eugenia Danila submitted to this Honorable Court
by the petitioner for probate, are considered abrogated and set aside;

6. That as the late Eugenia Danila has incurred debts to private persons during her lifetime, which in addition to
the burial and incidental expenses amounts to SIX THOUSAND EIGHT HUNDRED PESOS (P6,800.00) her
adopted daughter, Marcelina (Martina) Guerra is now determined to settle the same, but herein petitioner
Adelaida Nista hereby agrees to contribute to Marcelina (Martina) Guerra for the settlement of the said
indebtedness in the amount of THREE THOUSAND FOUR HUNDRED PESOS (P3,400.00), Philippine
Currency, the same to be delivered by Adelaida Nista to Marcelina (Martina) Guerra at the latter's residence at
Rizal Avenue, San Pablo City, on or about February 28, 1969;

7. That should there be any other property of the deceased Eugenia Danila that may later on be discovered to
be undisposed of as yet by Eugenia Danila during her lifetime, the same should be considered as exclusive
property of her adopted children and heirs, Buenaventura Guerra and Marcelina (Martina) Guerra and any right
of the petitioner and signatories hereto, with respect to said property or properties, shall be deemed waived and
renounced in favor of said Buenaventura and Marcelina (Martina) Guerra; and

8. That with the exception of the foregoing agreement, parties hereto waived and renounce further claim
against each other, and the above-entitled case. (Exh. 6)

This Agreement was approved by the lower court in a judgment readings as follows:

WHEREFORE, said compromise agreement, being not contrary to public policy, law and moral, the same is
hereby approved and judgment is hereby rendered in accordance with the terms and conditions set forth in the
above- quoted compromise agreement, which is hereby made an integral part of the dispositive portion of this
decision, and the parties are strictly enjoined to comply with the same. (Exh. 7)

On November 16, 1968, Rosario de Ramos, Miguel Danila Felix Danila Miguel Gavino Amor Danila
Consolacion Santos and Miguel Danila son of the late Fortunato Danila filed a motion for leave to intervene as
co-petitioners alleging that being instituted heirs or devisees, they have rights and interests to protect in the
estate of the late Eugenia Danila They also filed a reply partly admitting and denying the material allegations in
the opposition to the petition and alleging among other things, that oppositors repudiated their institution as
heirs and executors when they failed to cause the recording in the Register of Deeds of San Pablo City the will
and testament dated November 5, 1951 (Exhibit 3) in accordance with the Rules and committed acts of
ingratitude when they abandoned the testatrix and denied her support after they managed, through fraud and
undue influence, to secure the schedule of partition dated January 15, 1962. The Intervenors prayed for the
probate and/or allowance of the will and codicil (Exhibits H and L), respectively and the appointment of any of
them in as administrator of said estate.

On December 6, 1968, the intervenors also filed a motion for new trial and/or re-hearing and/or relief from
judgment and to set aside the judgment based on compromise dated November 5, 1968. The oppositors
interposed an opposition to the motion to which the intervenors filed their reply.

The lower court resolved the motions in an order the dispositive portion reading, thus:

FOR ALL THE FOREGOING the Court hereby makes the following dispositions

(1) Movants Rosario de Ramos, Miguel C. Danila Miguela Gavino Amor Danila Consolacion Santos, Miguel A.
Danila and Raymundo Danila are allowed and admitted to intervene to this proceeding as Party Petitioners;
and likewise admitted in their reply to the amended opposition of November 11, 1968;
(2) The compromise agreement dated October 15, 1968 by and between Petitioner Adelaida Nista and
oppositors Buenaventura Guerra and Marcelina Guerra Martina is disapproved, except as regards their
respective lawful rights in the subject estate; and, accordingly, the judgment on compromise rendered by this
Court on November 5, 1968 is reconsidered and set aside; and

(3) The original Petition and amended opposition to probate of the alleged will and codicil stand.

xxx xxx xxx

The lower court also denied the motion for the appointment of a special administrator filed by the intervenors.

xxx xxx xxx

A motion for reconsideration of the foregoing order was filed by the intervenors co-petitioners but the motion
was denied.

xxx xxx xxx

On February 9, 1971, a motion for the substitution of Irene, Crispina, Cristina Casiano, Edilberto Felisa, Guerra
in place of their father, the oppositor Buenaventura Guerra who died on January 23, 1971, was filed and
granted by the lower court.

After trial on the merits, the lower court rendered its decision dated July 6, 1971 allowing the probate of the wilt In that decision,
although two of the attesting witness Odon Sarmiento and Rosendo Paz, testified that they did not see the testatrix Eugenia
Danila sign the will but that the same was already signed by her when they affixed their own signatures thereon, the trial court
gave more weight and ment to the .'straight-forward and candid" testimony of Atty. Ricardo Barcenas, the Notary Public who
assisted in the execution of the wilt that the testatrix and the three (3) instrumental witnesses signed the will in the presence of
each other, and that with respect to the codicil the same manner was likewise observed as corroborated to by the testimony of
another lawyer, Atty. Manuel Alvero who was also present during the execution of the codicil.

The dispositive portion of the decision reads:

WHEREFORE, it appearing that the late Eugenia Danila had testamentary capacity when she executed the
will, Exh. H., and the codicil Exh. L, and that said will and codicil were duly signed by her and the three
attesting witnesses and acknowledged before a Notary Public in accordance with the formalities prescribed by
law, the said will and codicil are hereby declared probated. No evidence having been adduced regarding the
qualification and fitness of any of the intervenors- co-petitioners to act as executors, the appointment of
executors of the will and codicil is held pending until after due hearing on the matter.

SO ORDERED.

Oppositors Marcelina Guam and the heirs of Buenaventura Guam appealed the foregoing decision to the Court of Appeals The
latter court, in its derision dated May 12, 1975 ruled that the lower court acted correctly in setting aside its judgment approving
the Compromise Agreement and in allowing the intervenor petitioners to participate in the instant probate proceedings; however,
it disallowed the probate of the will on the that the evidence failed to establish that the testatrix Eugenia Danila signed her will in
the presence of the instrumental witness in accordance with Article 805 of the Civil Code, as testified to by the two surviving
instrumental witnesses.

In this present appeal petitioners vigorously insists on constitutional grounds the nullity of the decision of respondent court but
We deem it needless to consider the same as it is not necessary in resolving this appeal on the following assigned errors:

(A) THE COURT OF APPEALS ERRED GRAVELY IN NOT HAVING GIVEN WEIGHT TO THE
MANIFESTATION CLAUSES IN THE TESTAMENT AND CODICIL ANNEX B (PETITION) AND INSTEAD IT
GAVE CREDENCE TO THE TESTIMONIES OR BIASED WITNESSES OVER THEIR OWN ATTESTATION
CLAUSES AND THE TESTIMONIAL EVIDENCE AND NOTARIAL ACKNOWLEDGEMENT OF THE NOTARY
PUBLIC; AND

(B) THAT THE COURT OF APPEALS ERRED IN HAVING DENIED THE PROBATE OF THE WILL AND
CODICIL DESPITE CONVINCING EVIDENCE FOR THEIR ALLOWANCE.

We reverse the judgment of the Court of Appeals and restore the decision of the trial court allowing probate of the will and codicil
in question.

The main point in controversy here is whether or not the last testament and its accompanying codicil were executed in
accordance with the formalities of the law, considering the complicated circumstances that two of the attesting witnesses
testified against their due execution while other non-subscribing witnesses testified to the contrary.

Petitioners argue that the attestation clauses of the win and codicil which were signed by the instrumental witnesses are
admissions of due execution of the deeds, thus, preventing the said witnesses from prevaricating later on by testifying against
due execution. Petitioners further maintain that it is error for respondent court to give credence to the testimony of the biased
witnesses as against their own attestation to the fact of due execution and over the testimonial account of the Notary Public who
was also present during the execution and before whom right after, the deeds were acknowledged.

Private respondents, on the other hand reiterate in their contention the declaration of the two surviving witnesses, Odon
Sarmiento and Rosendo Paz, that the win was not signed by the testatrix before their presence, which is strengthened by two
photographic evidence showing only the two witnesses in the act of signing, there being no picture of the same occasion
showing the testatrix signing the will. Respondent court holds the view that where there was an opportunity to take pictures it is
not understandable why pictures were taken of the witnesses and not of the testatrix. It concludes that the absence of the latter's
picture to complete the evidence belies the testimony of Atty. Barcenas that the testatrix and the witnesses did sign the will and
the codicil in the presence of each other.
The oppositors' argument is untenable. There is ample and satisfactory evidence to convince us that the will and codicil were
executed in accordance with the formalities required by law. It appears positively and convincingly that the documents were
prepared by a lawyer, Atty. Manuel Alvero The execution of the same was evidently supervised by his associate, Atty. Ricardo
Barcenas and before whom the deeds were also acknowledged. The solemnity surrounding the execution of a will is attended by
some intricacies not usually within the comprehension of an ordinary layman. The object is to close the door against bad faith
and fraud, to avoid substitution of the will and testament, and to guarantee their truth and authenticity. 2 If there should be any
stress on the participation of lawyers in the execution of a wig, other than an interested party, it cannot be less than the
exercise of their primary duty as members of the Bar to uphold the lofty purpose of the law. There is no showing that the
above-named lawyers had been remiss in their sworn duty. Consequently, respondent court failed to consider the
presumption of ty in the execution of the questioned documents. There were no incidents brought to the attention of the
trial court to arouse suspicion of anomaly. While the opposition alleged fraud and undue influence, no evidence was
presented to prove their occurrence. There is no question that each and every page of the will and codicil carry the
authentic signatures of Eugenia Danila and the three (3) attesting witnesses. Similarly, the attestation claim far from being
deficient, were properly signed by the attesting witnesses. Neither is it disputed that these witnesses took turns in signing
the will and codicil in the presence of each other and the testatrix. Both instruments were duly acknowledged before a
Notary Public who was all the time present during the execution.

The presumption of regularity can of course be overcome by clear and convincing evidence to the contrary, but not easily by the
mere expediency of the negative testimony of Odon Sarmiento and Rosendo Paz that they did not see the testatrix sign the will.
A negative testimony does not enjoy equal standing with a positive assertion, and faced with the convincing appearance of the
will, such negative statement must be examined with extra care. For in this regard

It has also been held that the condition and physical appearance of a questioned document constitute a
valuable factor which, if correctly evaluated in the light of surrounding circumstances, may help in determining
whether it is genuine or forged. Subscribing witnesses may forget or exaggerating what they really know, saw,
heard or did; they may be biased and, therefore, tell only half-truths to mislead the court or favor one party to
the prejudice of the others. This cannot be said of the condition and Physical appearance of the questioned
document. Both, albeit silent, will reveal the naked truth, hiding nothing, forgetting nothing, and exaggerating
nothing. 3

Unlike other deeds, ordinary wills by necessity of law must contain an attestation clause Which, significantly is a separate
memorandum or record of the facts surrounding that the conduct of execution. Once signed by the attesting witnesses, it that
compliance with the indispensable legal formalities had been observed. This Court had previously hold that the attestation
clause basically contracts the pretense of undue ex execution which later on may be made by the attesting witnesses. 4 In the
attestation clause, the witnesses do not merely attest to the signature of the testatrix but also to the proper execution of
the will, and their signature following that of the testatrix show that they have in fact at not only to the genuineness of the
testatrix's signature but also to the due execution of the will as embodied in the attention clause. 5 By signing the wilt the
witnesses impliedly to the truth of the facts which admit to probate, including the sufficiency of execution, the capacity of
the testatrix, the absence of undue influence, and the like. 6

In this jurisdiction, all the attesting witness to a will if available, must be called to prove the wilt Under this circumstance, they
become "forced witnesses" " and their declaration derogatory to the probate of the will need not bind the proponent hence, the
latter may present other proof of due exemption even if contrary to the testimony of or all of the at, testing witness. 7 As a rule, if
any or all of the submitting witness testify against the due execution of the will, or do not remember having attested to it,
or are otherwise of doubtful ability, the will may, nevertheless, be allowed if the court is satisfied from the testimony of
other witness and from all the evidence presented that the will was executed and attested in the manner by
law. 8 Accordingly, although the subscribing witnesses to a contested will are the best witness in connection with its due
execution, to deserve full credit, their testimony must be reasonable, and unbiased; if otherwise it may be overcome by
any competent evidence, direct or circubstantial. 9

In the case at bar, the s bear a disparity in the quality of the testimonies of Odon Sarmiento and Rosendo Paz on one hand, and
the Notary Public, Atty. Ricardo A. Barcenas, on the other. The testimony of Odon Sarmiento was contradicted by his own
admission. Though his admission to the effect that "when Eugenia Danila signed the testament (he) and the two other attesting
witnesses Rosendo Paz and Calixto Azusada were present" (t.s.n., Feb. 12, 1970, p. 115) was made extrajudicially, it was not
squarely refuted when inquired upon during the trial.

With respect to the testimony of Rosendo Paz, it had been refuted by the declaration of Atty. Ricardo A. Barcenas. The records
show that this attesting witness was fetched by Felix Danila from his place of work in order to act as witness to a wilt Rosendo
Paz did not know what the document he signed was all about. Although he performed his function as an attesting witness, his
participation was rather passive. We do not expect, therefore, that his testimony, "half-hearted" as that of Odon Sarmiento, be as
candid and complete as one proceeding from a keen mind fully attentive to the details of the execution of the deeds. Quite
differently, Atty. Ricardo A. Barcenas, more than a direct witness himself, was Purposely there to oversee the accomplishment
of the will and codicil. His testimony is an account of what he actually heard and saw during the conduct of his profession. There
is no evidence to show that this lawyer was motivated by any material interest to take sides or that his statement is truth
perverted.

It has been regarded that the function of the Notary Public is, among others, to guard against any illegal or immoral
arrangements in the execution of a will. 10 In the absence of any showing of self-interest that might possibly have warped his
judgment and twisted his declaration, the intervention of a Notary Public, in his professional capacity, in the execution of a
will deserves grave consideration. 11 An appraise of a lawyer's participation has been succinctly stated by the Court
in Fernandez v. Tantoco, supra, this wise:

In weighing the testimony of the attesting witnesses to a will, his statements of a competent attorney, who has
been charged with the responsibility of seeing to the proper execution of the instrument, is entitled to greater
weight than the testimony of a person casually called to anticipate in the act, supposing of course that no
motive is revealed that should induce the attorney to prevaricate. The reason is that the mind of the attorney
being conversant of the instrument, is more likely to become fixed on details, and he is more likely than other
persons to retain those incidents in his memory.

One final point, the absence of a photograph of the testator Eugenia Danila in the act of signing her will. The fact that the only
pictures available are those which show the Witnesses signing the will in the presence of the testatrix and of each other does not
belie the probability that the testatrix also signed the will before the presence of the witnesses. We must stress that the pictures
are worthy only of what they show and prove and not of what they did not speak of including the events they failed to capture.
The probate of a will is a proceeding not embued with adverse character, wherein courts should relax the rules on evidence "to
the end that nothing less than the best evidence of which the matter is susceptible" should be presented to the court before a
reported will may be probated or denied probate. 12

We find here that the failure to imprint in photographs all the stages in the execution of the win does not serve any persuasive
effect nor have any evidentiary value to prove that one vital and indispensable requisite has not been acted on. Much less can it
defeat, by any ordinary or special reason, the presentation of other competent evidence intended to confirm a fact otherwise
existent but not confirmed by the photographic evidence. The probate court having satisfied itself that the win and codicil were
executed in accordance with the formalities required by law, and there being no indication of abuse of discretion on its part, We
find no error committed or any exceptional circumstance warranting the subsequent reversal of its decision allowing the probate
of the deeds in question.

WHEREFORE, the decision of respondent Court of Appeals is hereby reversed in so far its it disallowed the probate of the will
and codicil. With costs against respondents.

SO ORDERED.

- Javellana v. Ledesma, 97 Phil. 258, 262

G.R. No. L-7179 June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,


vs.
DOA MATEA LEDESMA, oppositor-appellant.

Fulgencio Vega and Felix D. Bacabac for appellant.


Benjamin H. Tirot for appellee.

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

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect, marked
Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on
March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as
witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed from the
decision, insisting that the said exhibits were not executed in conformity with law. The appeal was made directly to this Court
because the value of the properties involved exceeded two hundred thousand pesos.

Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the dispositions
were procured through undue influence. These grounds were abandoned at the hearing in the court below, where the issue was
concentrated into three specific questions: (1) whether the testament of 1950 was executed by the testatrix in the presence of
the instrumental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the notary
without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and
ineffective. These questions are the same ones presented to us for resolution.

The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal Allado, cook
and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard
Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento" and urge her to go to
attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not feeling well; and
that upon Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased took the paper
and signed it in the presence of Yap alone, and returned it with the statement that no one would question it because the property
involved was exclusively hers.

Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the improbable story
of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental witnesses, Vicente Yap, Atty.
Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the testament was executed by testatrix and
witnesses in the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on March 30, 1950.
And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady
then over 80 years old, should leave her own house in order to execute her will, when all three witnesses could have easily
repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant's
witnesses. Both claim to have heard the word "testamento" for the first time when Yap used it; and they claimed ability to recall
that word four years later, despite the fact that the term meant nothing to either. It is well known that what is to be remembered
must first be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap
brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but she could remember no other date, nor
give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to have heard what allegedly
transpired between Yap and Da. Apolinaria from the kitchen of the house, that was later proved to have been separated from the
deceased's quarters, and standing at a much lower level, so that conversations in the main building could not be distinctly heard
from the kitchen. Later, on redirect examination, Allado sought to cure his testimony by claiming that he was upstairs in a room
where the servants used to eat when he heard Yap converse with his mistress; but this correction is unavailing, since it was
plainly induced by two highly leading questions from contestant's counsel that had been previously ruled out by the trial Court.
Besides, the contradiction is hardly consonant with this witness' 18 years of service to the deceased.

Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the contestant-
appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of the codicil, and the
identity of the person who inserted the date therein, are not material and are largely imaginary, since the witness Mrs. Tabiana
confessed inability to remember all the details of the transaction. Neither are we impressed by the argument that the use of
some Spanish terms in the codicil and testament (like legado, partes iguales, plena propiedad) is proof that its contents were not
understood by the testatrix, it appearing in evidence that those terms are of common use even in the vernacular, and that the
deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in Spanish)
appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the enactment of the new
Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who
happen to be the same ones who attested the will of 1950) asserted that after the codicil had been signed by the testatrix and
the witnesses at the San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same occasion. On
the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed and sealed it there. The
variance does not necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due to a well-
established phenomenon, the tendency of the mind, in recalling past events, to substitute the usual and habitual for what differs
slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870).

At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the
presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new
Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A
comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each
other, all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the
witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the
voluntariness of their actions in executing the testamentary disposition. This was done in the case before us. The subsequent
signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no
part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix
and her witnesses can not be said to violate the rule that testaments should be completed without interruption
(Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no
reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code does not
contain words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that
it was executed.

The decision admitting the will to probate is affirmed, with costs against appellant.

81 PHIL 202/282

- GABUCAN vs. MANTA G.R. No. L-51546 January 28, 1980 95 SCRA 725
DOCUMENTARY STAMP TAX: Rule on Admissibility of Document as Evidence

FACTS:

This case is about the dismissal of a petition for the probate of the notarial will of the late Rogaciano Gabucan on the
ground that it does not bear a thirty-centavo documentary stamp. The probate court refused to reconsider the dismissal
in spite of petitioners manifestation that he had already attached the documentary stamp to the original of the will.

ISSUE:

W/N the probate correct was correct in dismissing the petition on the ground of failure to affix the documentary stamp
to the will

HELD:

The Court held that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to
the will, there was no will and testament to probate and, consequently, the alleged action must of necessity be
dismissed.

What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-
centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document.
The documentary stamp may be affixed at the time the taxable document is presented in evidence.

----------------------------------------

A notarial will must have a documentary stamp


Without a documentary stamp, it is not admissible in evidence in a probate proceeding
At any rate, the documentary stamp may be affixed at the time the taxable document is presented in evidence, not
necessarily at the execution of the will
95 SCRA 751 Remedial Law Special Proceedings Probate of Will Documentary Stamp on Notarial Will

I n 1977, Judge Luis Manta dismissed a probate proceeding because the notarial will presented in the said case
lacked a documentary stamp. Judge Manta ruled that the lack of of documentary stamp made the will
inadmissible in evidence and as such there is no will and testament to probate.
Jose Gabucan, a party in the said case, thereafter affixed the required documentary stamp and then moved for
reconsideration but the judge refused to reconsider his ruling. Hence, Gabucan filed a petition for mandamus to
compel the judge to admit the notarial will.
ISSUE: Whether or not a notarial will presented in court which originally has no documentary stamp may still be
admitted after the required documentary stamp was affixed.
HELD: Yes. It is true that the law (the [old] Tax Code now Sec. 201 of R.A. 8424) requires a notarial will to have
a documentary stamp:
SEC. 238. Effect of failure to stamp taxable document. An instrument, document, or paper which is required by
law to be stamped and which has been signed, issued, accepted, or transferred without being duly stamped, shall
not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in
evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled. xxx
Thus, a notarial will without a documentary stamp may not be admitted in evidence. However, once the said
documentary stamp is affixed, then the deficiency is cured and it can now be admitted in evidence. The
documentary stamp may be affixed at the time the taxable document is presented in evidence.

--------------------------------------------

G.R. No. L-51546 January 28, 1980

JOSE ANTONIO GABUCAN, petitioner-appellant,


vs.
HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA G. ENCLONAR, respondents-appellees.

Ignacio A. Calingin for appellant.

AQUINO, J.:

This case is about the dismissal of a petition for the probate of a notarial will on the ground that it does not bear a thirty-centavo
documentary stamp.

The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in Special Proceeding No. 41 for the probate of
the will of the late Rogaciano Gabucan, dismissed the proceeding (erroneously characterizes as an "action")

The proceeding was dismissed because the requisite documentary stamp was not affixed to the notarial acknowledgment in the
will and, hence, according to respondent Judge, it was not admissible in evidence, citing section 238 of the Tax Code, now
section 250 of the 1977 Tax Code, which reads:

SEC. 238. Effect of failure to stamp taxable document. An instrument, document, or paper which is required
by law to be stamped and which has been signed, issued, accepted, or transferred without being duly stamped,
shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used
in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled.

No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to any
document subject to documentary stamp tax unless the proper documentary stamps are affixed thereto and
cancelled.

The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-centavo documentary stamp
tax fixed in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.

Respondent Judge refused to reconsider the dismissal in spite of petitioner's manifestation that he had already attached the
documentary stamp to the original of the will. (See Mahilum vs. Court of Appeals, 64 O. G. 4017, 17 SCRA 482, 486.)

The case was brought to this Court by means of a petition for mandamus to compel the lower court to allow petitioner's appeal
from its decision. In this Court's resolution of January 21, 1980 the petition for mandamus was treated in the interest of
substantial and speedy justice as an appeal under Republic Act No. 5440 as well as a special civil action of certiorari under Rule
65 of the Rules of Court.

We hold that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will, there was
"no will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed".

What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo
documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document.

That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which does not bear
the requisite documentary stamp, subsists only "until the requisite stamp or stamps shall have been affixed thereto and
cancelled."

Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence (Del
Castillo vs. Madrilena 49 Phil. 749). If the promissory note does not bear a documentary stamp, the court should have allowed
plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs.
Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document does not invalidate such document. See Cia.
General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar 16 Phil. 403, 405-6.)

WHEREFORE, the lower court's dismissal of the petition for probate is reversed and set aside. It is directed to decide the case
on the merits in the light of the parties' evidence. No costs.

SO ORDERED.
- CODOY vs. CALUGAY G.R. No. 123486 August 12, 1999

G.R. No. 123486 August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,


vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents.

PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its resolution denying reconsideration,
ruling:

Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the authenticity
of testators holographic will has been established and the handwriting and signature therein (exhibit S) are hers,
enough to probate said will. Reversal of the judgment appealed from and the probate of the holographic will in question
be called for. The rule is that after plaintiff has completed presentation of his evidence and the defendant files a motion
for judgment on demurrer to evidence on the ground that upon the facts and the law plaintiff has shown no right to relief,
if the motion is granted and the order to dismissal is reversed on appeal, the movant loses his right to present evidence
in his behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment may, therefore, be rendered for appellant in the instant
case.

Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the holographic will
of the testator Matilde Seo Vda. de Ramonal.2

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of
the deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition3 for
probate of the holographic will of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of sound and disposing mind when
she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the
testator, and will was written voluntarily.

The assessed value of the decedent's property, including all real and personal property was about P400,000.00, at the time of
her death.4

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition5 to the petition for probate, alleging that
the holographic will was a forgery and that the same is even illegible. This gives an impression that a "third hand" of an
interested party other than the "true hand" of Matilde Seo Vda. de Ramonal executed the holographic will.

Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is out of the ordinary. If the
deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottom after
the dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the handwriting of
the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud
and trickery.1w phi1.nt

Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence,
filed a demurrer6 to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the
holographic will of the deceased Matilde Seo Vda. de Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well taken, same is
granted, and the petition for probate of the document (Exhibit "S") on the purported Holographic Will of the late Matilde
Seo Vda. de Ramonal, is denied for insufficiency of evidence and lack of merits. 7

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

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

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the
holographic will of the deceased was filed. He produced and identified the records of the case. The documents presented bear
the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's affidavit of the
decedent. However, the voters' affidavit was not produced for the same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her aunt, and that after the death of
Matilde's husband, the latter lived with her in her parent's house for eleven (11) years from 1958 to 1969. During those eleven
(11) years of close association the deceased, she acquired familiarity with her signature and handwriting as she used to
accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of commercial
buildings, and deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in
posting the records of the accounts, and carried personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic will
dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the
dispositions therein, the dates, and the signatures in said will, were that of the deceased.

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and
handled all the pleadings and documents signed by the deceased in connection with the proceedings of her late husband, as a
result of which he is familiar with the handwriting of the latter. He testified that the signature appearing in the holographic will
was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.

The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and Natural Resources,
Region 10. She testified that she processed the application of the deceased for pasture permit and was familiar with the
signature of the deceased, since the signed documents in her presence, when the latter was applying for pasture permit.

Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was in fact
adopted by the latter. That after a long period of time she became familiar with the signature of the deceased. She testified that
the signature appearing in the holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal.

The holographic will which was written in Visayan, is translated in English as follows:

Instruction

August 30, 1978

1. My share at Cogon, Raminal Street, for Evangeline Calugay.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

3. My jewelry's shall be divided among:

1. Eufemia Patigas

2. Josefina Salcedo

3. Evangeline Calugay

(Sgd) Matilde Vda de Ramonal

August 30, 1978

4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

(Sgd) Matilde Vda de Ramonal

August 30, 1978

5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen must continue
with the Sta. Cruz, once I am no longer around.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

6. Bury me where my husband Justo is ever buried.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

Gene and Manuel:

Follow my instruction in order that I will rest peacefully.

Mama

Matilde Vda de Ramonal


On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was meritorious. Citing the decision in the
case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of
Appeals held:

. . . even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present
civil code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting
of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of
the holographic will, none being required by law (art. 810, new civil code), it becomes obvious that the existence of
witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a
question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and
signature of the testator" and who can declare (truthfully, of course, even if the law does not express) "that the will and
the signature are in the handwriting of the testator." There may be no available witness acquainted with the testator's
hand; or even if so familiarized, the witness maybe unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of
article 811 prescribes that

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.

As can be see, the law foresees, the possibility that no qualified witness ma be found (or what amounts to the same
thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert
evidence to supply the deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only
one if no contest is had) was derived from the rule established for ordinary testaments (CF Cabang vs. Delfianado, 45
PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be considered
mandatory only in case of ordinary testaments, precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness
need be present (art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if
absurd results are to be avoided.

Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court deem it necessary", which
reveal that what the law deems essential is that the court should be convinced of the will's authenticity. Where the
prescribed number of witnesses is produced and the court is convinced by their testimony that the will is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of
those produced is convincing, the court may still, and in fact it should resort to handwriting experts. The duty of the
court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.

Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811 of the civil
code cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of
the testator, under penalty of the having the probate denied. No witness need be present in the execution of the
holographic will. And the rule requiring the production of three witnesses is merely permissive. What the law deems
essential is that the court is convinced of the authenticity of the will. Its duty is to exhaust all available lines of inquiry, for
the state is as much interested in the proponent that the true intention of the testator be carried into effect. And because
the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be drawn from a
party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay
witnesses.10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no
uncertain terms testified that the handwriting and signature in the holographic will were those of the testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of
Appeals sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to
probate.

Hence, this petition.

The petitioners raise the following issues:

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

(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present credible
evidence to that the date, text, and signature on the holographic will written entirely in the hand of the testatrix.

(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of Matilde Seo
Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The
article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly declare
that the signature in the will is the genuine signature of the testator. 1w phi1.nt

We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a
mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative obligation and is inconsistent with the
idea of discretion and that the presumption is that the word "shall," when used in a statute is mandatory. 11

Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the
goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous
individuals who for their benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An
exhaustive and objective consideration of the evidence is imperative to establish the true intent of the testator.

It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the
handwriting of testator. In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely identified
the record of Special Proceedings No. 427 before said court. He was not presented to declare explicitly that the signature
appearing in the holographic was that of the deceased.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in
the voter's affidavit, which was not even produced as it was no longer available.

Matilde Ramonal Binanay, on the other hand, testified that:

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan, Cagayan de Oro
City. Would you tell the court what was your occupation or how did Matilde Vda de Ramonal keep herself busy that
time?

A. Collecting rentals.

Q. From where?

A. From the land rentals and commercial buildings at Pabayo-Gomez streets.12

xxx xxx xxx

Q. Who sometime accompany her?

A. I sometimes accompany her.

Q. In collecting rentals does she issue receipts?

A. Yes, sir.13

xxx xxx xxx

Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the receipts which
she issued to them?

A. Yes, sir.

Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay?

A. Matilde vda. De Ramonal.

Q. Why do you say that is the signature of Matilde Vda. De Ramonal?

A. I am familiar with her signature.

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

A. Yes, sir.

Q. Why do you say so?

A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.

Q. How is this record of accounts made? How is this reflected?

A. In handwritten.14

xxx xxx xxx

Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you said what else
did you do to acquire familiarity of the signature of Matilde Vda De Ramonal?

A. Posting records.

Q. Aside from that?

A. Carrying letters.

Q. Letters of whom?

A. Matilde.
Q. To whom?

A. To her creditors.15

xxx xxx xxx

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

A. Yes, sir.

Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?

A. My Aunt.

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

A. Because I am familiar with her signature.16

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

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

Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de Ramonal left a
will you said, yes?

A. Yes, sir.

Q. Who was in possession of that will?

A. I.

Q. Since when did you have the possession of the will?

A. It was in my mother's possession.

Q. So, it was not in your possession?

A. Sorry, yes.

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

A. 1985.17

xxx xxx xxx

Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and therefore you have that
in your possession?

A. It was not given to me by my mother, I took that in the aparador when she died.

Q. After taking that document you kept it with you?

A. I presented it to the fiscal.

Q. For what purpose?

A. Just to seek advice.

Q. Advice of what?

A. About the will.18

In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally adopted children of
the deceased. Such actions put in issue her motive of keeping the will a secret to petitioners and revealing it only after the death
of Matilde Seo Vda. de Ramonal.

In the testimony of Ms. Binanay, the following were established:

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?

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

A. Yes, sir.19

xxx xxx xxx

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in the word Vda.?

A. Yes, a little. The letter L is continuous.

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

A. Yes, sir.

Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter D.

A. Yes, sir.

Q. And there is a retracing in the word Vda.?

A. Yes, sir.20

xxx xxx xxx

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

A. Yes, sir the handwriting shows that she was very exhausted.

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

A. In writing.

Q. How did you know that she was exhausted when you were not present and you just tried to explain yourself out
because of the apparent inconsistencies?

A. That was I think. (sic).

Q. Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In exhibit I,
you will notice that there is no retracing; there is no hesitancy and the signature was written on a fluid movement. . . .
And in fact, the name Eufemia R. Patigas here refers to one of the petitioners?

A. Yes, sir.

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

A. Yes, sir.21

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

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

A. During my stay I used to go with her to the church, to market and then to her transactions.

Q. What else? What services that you rendered?

A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.

Q. What was your purpose of going to her lawyer?

A. I used to be her personal driver.

Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de Ramonal?

A. Yes, sir.

Q. How come that you acquired familiarity?

A. Because I lived with her since birth.22


xxx xxx xxx

Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a signature here
below item No. 1, will you tell this court whose signature is this?

A. Yes, sir, that is her signature.

Q. Why do you say that is her signature?

A. I am familiar with her signature.23

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

The former lawyer of the deceased, Fiscal Waga, testified that:

Q. Do you know Matilde Vda de Ramonal?

A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to the husband
by consanguinity.

Q. Can you tell the name of the husband?

A. The late husband is Justo Ramonal.24

xxx xxx xxx

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

A. As far as I know they have no legitimate children.25

xxx xxx xxx

Q. You said after becoming a lawyer you practice your profession? Where?

A. Here in Cagayan de Oro City.

Q. Do you have services rendered with the deceased Matilde vda de Ramonal?

A. I assisted her in terminating the partition, of properties.

Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, Fiscal?

A. It is about the project partition to terminate the property, which was under the court before.26

xxx xxx xxx

Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the estate of
Justo Ramonal and there appears a signature over the type written word Matilde vda de Ramonal, whose signature is
this?

A. That is the signature of Matilde Vda de Ramonal.

Q. Also in exhibit n-3, whose signature is this?

A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27

xxx xxx xxx

Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other assistance wherein
you were rendering professional service to the deceased Matilde Vda de Ramonal?

A. I can not remember if I have assisted her in other matters but if there are documents to show that I have assisted
then I can recall.28

xxx xxx xxx

Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal Waga and tell the
court whether you are familiar with the handwriting contained in that document marked as exhibit "S"?

A. I am not familiar with the handwriting.

Q. This one, Matilde Vda de Ramonal, whose signature is this?

A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose signature is
this?

A. Well, that is similar to that signature appearing in the project of partition.

Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose signature is that?

A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.

Q. Why do you say that?

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

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

A. The same is true with the signature in item no. 4. It seems that they are similar.29

xxx xxx xxx

Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in exhibit S
seems to be the signature of Matilde vda de Ramonal?

A. Yes, it is similar to the project of partition.

Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing that it seems
to be her signature because it is similar to the signature of the project of partition which you have made?

A. That is true.30

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

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

However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the
holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the
death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or
five years before the death of the deceased.

There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents
signed and executed by her during her lifetime. The only chance at comparison was during the cross-examination of Ms.
Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the signature of the
deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased
expressed doubts as to the authenticity of the signature in the holographic will.

A visual examination of the holographic will convince us that the strokes are different when compared with other documents
written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes,
retracing and erasures on the will.

Comparing the signature in the holographic will dated August 30, 1978,33 and the signatures in several documents such as the
application letter for pasture permit dated December 30, 1980,34 and a letter dated June 16, 1978,35 the strokes are different. In
the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that ruling holographic will was in the handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin with
instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the
deceased Matilde Seo vda. de Ramonal. 1w phi 1.nt

No costs.

SO ORDERED.

- VARELA vs.VARELA CALDERON G.R. No. L-36342 October 8, 1932 57 Phil. 280

G.R. No. L-36342 October 8, 1932

In re Will of Francisco Varela Calderon, deceased.


FRANCISCO CARMELO VARELA, petitioner-appellee,
vs.
MIGUEL VARELA CALDERON, ET AL., opponents-appellants

Araneta De Joya, Zaragoza and Araneta for appellants.


Eduardo Gutierrez Repide for appellee.

IMPERIAL, J.:

This is an appeal taken by Miguel Varela Calderon, Angel Varela Calderon, Jesus Varela Calderon, Trinidad Varela Calderon,
Paula Varela Calderon, Pilar Varela Calderon and Maria Varela Calderon from the judgment rendered by the Honorable Mariano
A. Albert, Judge of the Court of First Instance of Manila, ordering the allowance and probate of the document marked Exhibit B
as the last will and testament of the late Francisco Varela Calderon.

The deceased, a physician by profession, was a Filipino citizen resident of the City of Manila where he owned real properties
assessed at P188,017.81. He traveled abroad for his health and temporarily resided in Hendaye-Plage, France. Not feeling very
well, but in the full enjoyment of his mental faculties, he decided to make his last will and testament (Exhibit B), on April 14,
1930, in Paris, France, with the assistance of attorneys F. de Roussy de Sales, Gething C. Miller and Henri Gadd. Sometime
later, that is on July 15, 1930, he died in the Grand-Hotel de Leysin Sanatorium in Switzerland.

On September 20, 1930, the herein petitioner-appellee, Francisco Carmelo Varela, filed a petition in the Court of First Instance
of the City of Manila, praying that said will be admitted to probate. Said petition was opposed by the deceased's brother Jose
Miguel, Angel, Jesus, Trinidad, Paula, Pilar and Maria, surnamed Varela Calderon, although, later on, the first mentioned
opponent withdrew his opposition giving as his reason therefor that it was out of respect for the testator's wishes because the
will was executed in his own handwriting. The grounds of the opposition are as follows: (a) That the will sought to be probate
was not holographic in character and did not comply with the requisites prescribed by article 970 of the French Civil Code; (b)
that the witnesses to the will did not possess the qualifications required by article 980 of the French Civil Code; (c) that for not
having complied with the requisites prescribed by the French law, said will is null and void; (d) that neither has it the character of
an open will, not having been executed in accordance with article 1001 of the French Civil Code; and (e) that the provisions of
article 1007 of the same Code relative to the recording of wills were not complied with in connection with the will in question.

The appellants assign the following errors alleged to have been committed by the trial court:

1. The trial court erred in declaring that Exhibit B, purporting to be the last will and testament of the deceased Francisco
Varela Calderon, was a valid holographic will made and executed, in accordance with the laws of the French Republic.

2. The trial court, therefore, erred in allowing and admitting to probate said document Exhibit B, as the last will and
testament of the deceased Francisco Varela Calderon.

In view of the nature of both assignments of error and of the arguments advanced in their support, we shall discuss them jointly.

The will in question, Exhibit B, as translated into English reads as follows:

I. FRANCISCO VARELA CALDERON, Doctor in Medicine, bachelor, citizen of the Philippine Islands and subject of the
United States of America, borne and domiciled at Manila, Philippine Islands, and actually residing temporarily at
Hendaye-Plage, France, I declare that the followings are my act of last wills and my testament:

1. I revoke all testamentary dispositions made by myself before this day.

2. I desire that the inhumation of my body be made without any ceremony.

3. I give and bequeath to my children FRANCISCO CARMELO VARELA borne at Madrid on the twenty fourth
of November nineteen hundred five and to CARMEN VARELA borne at Manila, Philippine Islands, on the fourth
of October nineteen hundred seven who live both actually with me, the totality of my personal properties, real
estates and mixed including those on which I could have the power of disposition or designation whatsoever,
by equal parts in all properties, instituting them my residuary legatee.

4. I name for my testamentary executor, without bail, my son, FRANCISCO CARMELO VARELA, to his default
my daughter CARMEN VARELA to the default of this one my brother MIGUEL VARELA CALDERON and to
the default of my brother, Mr. ANTONIO GUTIERREZ DEL CAMPO.

In witness whereof I have in this one my act of last wills and testament, written dated and signed entirely by my hand,
applied my signature and my seal at Paris, this fourteenth of April nineteen hundred thirty.

(Sgd.) FRANCISCO VARELA CALDERON (L. S.)


(Sgd.) HENRI GADD
(Sgd.) TH. PEYROT

Signed, sealed, published and declared by the testator above mentioned, FRANCISCO VARELA CALDERON, on the
14 April 1930, as being his act of last wills and his testament in the presence of we, who at his request, in his presence,
and in the presence of one another, have to these presents applied our signatures as witnesses:

(Sgd.) F. DE ROUSSY DE SALES,


39 rue la Boetie, Paris, France.

(Sgd.) GETHING C. MILLER,


39 rue la Boetie, Paris, France.
(Sgd.) HENRI GADD,
39 rue la Boetie, Paris, France.

Pour traduction certifiee conforme,

Manille, le 15 september 1930.

The original will was executed in the French language and had been written, dated and signed by the testator with his own hand,
with the exception of the attestation clause which appears at the bottom of the document. This fact is proved by the testimony of
the appellee and his other witnesses, including the depositions, and is admitted by the appellants.

The petition for the allowance and probate of said will is based on the provisions of article 970 of the French Civil Code which
considers as a holographic will that which is made or executed, dated and signed by the testator in his own handwriting without
the necessity of any other formality, and on section 635 of the Code of Civil Procedure in force in this jurisdiction which provides
that a will made out of the Philippine Islands in accordance with the laws in force in the country in which it was made and which
may be allowed and admitted to probate therein, may, also be proved, allowed and recorded in the Philippine Islands in the
same manner and with the same effect as if executed in the latter country. Both provisions of law literally copied from the
English text, read as follows:

(Article 970, French Civil Code)

A holographic will is not valid unless it is entirely written, dated, and signed by the testator. No other formality is
required.

(Article 635, Code of Civil Procedure)

Will made out of the Philippine Islands. A will made out of the Philippine Islands which might be proved and allowed
by the laws of the state or country in which it was made, may be proved, allowed, and recorded in the Philippine
Islands, and shall have the same effect as if executed according to the laws of these Islands.

As we have already said, it is an admitted fact that the will was written, dated and signed by the deceased testator, for which
reason, there is no doubt that it had been made and executed in accordance with article 970 of the French Civil Code were it not
for the attestation clause which appears at the bottom of the document.

The appellants contend that the addition of said of clause has entirely vitiated the will, because it ceased to be a holographic will,
neither does it possess the requisites of a public or open will in accordance with the French law. The court which originally took
cognizance of the case decided that such circumstance does not invalidate the will. We concur in said opinion and hold that a
clause drawn up in such manner is superfluous and does not affect in any way the essential requisites prescribed for
holographic wills by the French law, and, consequently, it has not invalidated the will nor deprived it of its holographic character.
In reaching this conclusion, we base our opinion not only on the clear and conclusive provisions of article 970 of the French Civil
Code and on the decisions of the French Court of Appeals cited in the appelee's brief, but principally on the fact established in
the depositions made by practicing attorneys F. de Roussy de Sales, Gething C. Miller and Henri Gadd of Paris, France, who
emphatically declared that the will in question did not lose its holographic character by the addition of the aforementioned
attestation clause and that it may be allowed to probate in conformity with the French laws under which it had been made and
executed.

In view of the foregoing, we believe it unnecessary to consider and pass upon the other grounds invoked by the opposition
consisting in the incapacity of the three witnesses who signed at the end of the attestation clause and the absence of the
requisites prescribed by the French Civil Code for the execution of open wills, inasmuch as the attorney for the appellee has
conclusively proved that the will in question is holographic, and we have so held and decided. 1awphil.net

The order appealed from, being in conformity with the law, is hereby affirmed in toto, with costs against the appellants. So
ordered.

- SUNTAY vs. SUNTAY G.R. Nos. L-3087 and L-3088 July 31, 1954 95PHIL 500

G.R. Nos. L-3087 and L-3088 July 31, 1954

In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.

Claro M. Recto for appellant.


Sison and Aruego for appellee.

PADILLA, J.:

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 cross-interrogatory, 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
cross-interrogatories, 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 cross-interrogatory, 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 cross-interrogatories, 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: one-third 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 cross-examination, 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, 530-1, 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 CHENG


Clerk of Court

CHIANG TENG HWA


Judge

(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 twenty-three 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 D-1)." 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, and also 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 petitioner-appellant? (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.