You are on page 1of 15

G.R. No.

L-1787 August 27, 1948 Everyday life and the result of investigations made in the field of experimental psychology show that the
contradictions of witnesses generally occur in the details of a certain incident, after a long series of
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee, questioning, and far from being an evidence of falsehood constitute a demonstration of good faith.
vs. Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that in
AGUSTIN LIBORO, oppositor-appellant. relating their impressions they should not agree in the minor details; hence, the contradictions in their
testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that
the testator was suffering from "partial paralysis." While another in testator's place might have directed someone
In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what purports to else to sign for him, as appellant contends should have been done, there is nothing curious or suspicious in the
be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on fact that the testator chose the use of mark as the means of authenticating his will. It was a matter of taste or
March 3, 1947, almost six months after the document in question was executed. In the court below, the present preference. Both ways are good. A statute requiring a will to be "signed" is satisfied if the signature is made by
appellant specified five grounds for his opposition, to wit: (1) that the deceased never executed the alleged will; the testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)
(2) that his signature appearing in said will was a forgery; (3) that at the time of the execution of the will, he was
wanting in testamentary as well as mental capacity due to advanced age; (4) that, if he did ever execute said will,
it was not executed and attested as required by law, and one of the alleged instrumental witnesses was With reference to the second assignment of error, we do not share the opinion that the trial court communicated
incapacitated to act as such; and it was procured by duress, influence of fear and threats and undue and an abuse of discretion in allowing the appellant to offer evidence to prove knowledge of Spanish by the testator,
improper pressure and influence on the part of the beneficiaries instituted therein, principally the testator's sister, the language in which the will is drawn, after the petitioner had rested his case and after the opponent had
Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the signature of the testator was moved for dismissal of the petition on the ground of insufficiency of evidence. It is within the discretion of the
procured by fraud or trick. court whether or not to admit further evidence after the party offering the evidence has rested, and this discretion
will not be reviewed except where it has clearly been abused. (64 C. J., 160.) More, it is within the sound
discretion of the court whether or not it will allow the case to be reopened for the further introduction of evidence
In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred after a motion or request for a nonsuit, or a demurrer to the evidence, and the case may be reopened after the
in holding that the document Exhibit "A" was executed in all particulars as required by law." To this objection is court has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or has
added the alleged error of the court "in allowing the petitioner to introduce evidence that Exhibit "A" was written in denied the same, or after the motion has been granted, if the order has not been written, or entered upon the
a language known to the decedent after petitioner rested his case and over the vigorous objection of the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they
The will in question comprises two pages, each of which is written on one side of a separate sheet. The first are allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance
sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect. of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the
appellate court where no abuse of discretion appears. (Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs.
The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means of Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed when it is newly discovered, or where it has
preventing the substitution or of defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In been omitted through inadvertence or mistake, or where the purpose of the evidence is to the evidence is to
the present case, the omission to put a page number on the first sheet, if that be necessary, is supplied by other correct evidence previously offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.)
forms of identification more trustworthy than the conventional numerical words or characters. The unnumbered The omission to present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to
page is clearly identified as the first page by the internal sense of its contents considered in relation to the a misapprehension or oversight.
contents of the second page. By their meaning and coherence, the first and second lines on the second page are
undeniably a continuation of the last sentence of the testament, before the attestation clause, which starts at the Although alien to the second assignment of error, the appellant impugns the will for its silence on the testator's
bottom of the preceding page. Furthermore, the unnumbered page contains the caption "TESTAMENTO," the understanding of the language used in the testament. There is no statutory requirement that such knowledge be
invocation of the Almighty, and a recital that the testator was in full use of his testamentary faculty, — all of expressly stated in the will itself. It is a matter that may be established by proof aliunde. This Court so impliedly
which, in the logical order of sequence, precede the direction for the disposition of the marker's property. Again, ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will written in Tagalog was ordered although
as page two contains only the two lines above mentioned, the attestation clause, the mark of the testator and the it did not say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other
signatures of the witnesses, the other sheet can not by any possibility be taken for other than page than the fact that the testator resided in a Tagalog region, from which the court said "a presumption arises that
one. Abangan vs. Abangan, supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of this issue. said Maria Tapia knew the Tagalog dialect.

Although not falling within the purview and scope of the first assignment of error, the matter of the credibility of The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed,
the witnesses is assailed under this heading. On the merits we do not believe that the appellant's contention with costs.
deserves serious consideration. Such contradictions in the testimony of the instrumental witnesses as are set out
in the appellant's brief are incidents not all of which every one of the witnesses can be supposed to have
perceived, or to recall in the same order in which they occurred.
A.M. No. 2026-CFI December 19, 1981 Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will
which is in English was thumbmarked by her. She was illiterate. Her letters in English to the Veterans
NENITA DE VERA SUROZA, complainant, Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all her
vs. estate to her supposed granddaughter Marilyn.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents. Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death, she was
a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter lot and house in
AQUINO, J.: that place. She acquired the lot in 1966 (p. 134, Record of testate case).

Should disciplinary action be taken against respondent judge for having admitted to probate a will, which on its On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and the
face is void because it is written in English, a language not known to the illiterate testatrix, and which is probably executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed
a forged will because she and the attesting witnesses did not appear before the notary as admitted by the notary with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's alleged will.
himself? The case was assigned to Judge Reynaldo P. Honrado.

That question arises under the pleadings filed in the testate case and in the certiorari case in the Court of As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S. Yuipco, to
Appeals which reveal the following tangled strands of human relationship: hear the evidence. The transcripts of the stenographic notes taken at the hearing before the deputy clerk of court
are not in the record.
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married
Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy named In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following day, April
Agapito who used the surname Suroza and who considered them as his parents as shown in his 1945 marriage 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank of America to
contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn
Agapito was 5 years old when Mauro married Marcelina in 1923). Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina.

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government. That Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to
explains why on her death she had accumulated some cash in two banks. eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place Marina in
possession thereof.
Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. Agapito also
became a soldier. He was disabled and his wife Nenita was appointed as his guardian in 1953 when he was That order alerted Nenita to the existence of the testamentary proceeding for the settlement of Marcelina's
declared an incompetent in Special Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig Branch I estate. She and the other occupants of the decedent's house filed on April 18 in the said proceeding a motion to
(p. 16, Rollo of CA-G.R. No. 08654-R). set aside the order of April 11 ejecting them. They alleged that the decedent's son Agapito was the sole heir of
the deceased, that he has a daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was not
Agapito's daughter nor the decedent's granddaughter (pp. 52-68, Record of testate case). Later, they questioned
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his guardian in the probate court's jurisdiction to issue the ejectment order.
another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito and that she (Nenita)
admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate case).
In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were claiming
Marcelina's estate, he issued on April 23 an order probating her supposed will wherein Marilyn was the instituted
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's appointment as heiress (pp. 74-77, Record).
guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veteran's hospital in San Francisco
or Palo Alto, California (p. 87, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit opposition with
counter-petition for administration and preliminary injunction". Nenita in that motion reiterated her allegation that
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named Marilyn was a stranger to Marcelina, that the will was not duly executed and attested, that it was procured by
Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito) means of undue influence employed by Marina and Marilyn and that the thumbmarks of the testatrix were
and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of procured by fraud or trick.
Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname
Suroza. She stayed with Marcelina but was not legally adopted by Agapito. She married Oscar Medrano and is
residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito and that
Street. Marina was not qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who swore that the Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to withdraw from
alleged will was falsified (p. 109, Record). various banks the deposits Marcelina.

Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus motion to set She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the record of
aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an opposition to the probate of the the probate case by alleging that it was useless for Nenita to oppose the probate since Judge Honrado would not
will and a counter-petition for letters of administration. In that opposition, Nenita assailed the due execution of the change his decision. Nenita also said that Evangeline insinuated that if she (Nenita) had ten thousand pesos, the
will and stated the names and addresses of Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, case might be decided in her favor. Evangeline allegedly advised Nenita to desist from claiming the properties of
Record). Nenita was not aware of the decree of probate dated April 23, 1975. the testatrix because she (Nenita) had no rights thereto and, should she persist, she might lose her pension from
the Federal Government.
To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who swore that
Marcelina never executed a win (pp. 124-125, Record). Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He merely
pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion dated July 6, 1976
Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not Marcelina's she asked for a thirty day period within which to vacate the house of the testatrix.
granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's
sonbut merely an anak-anakan who was not legally adopted (p. 143, Record). Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not mention
Evangeline in her letter dated September 11, 1978 to President Marcos.
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters of
administration because of the non-appearance of her counsel at the hearing. She moved for the reconsideration Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having access to
of that order. the record of the testamentary proceeding. Evangeline was not the custodian of the record. Evangeline "
strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline) said that the sum of ten thousand
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza reiterated pesos was needed in order that Nenita could get a favorable decision. Evangeline also denied that she has any
her contention that the alleged will is void because Marcelina did not appear before the notary and because it is knowledge of Nenita's pension from the Federal Government.
written in English which is not known to her (pp. 208-209, Record).
The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court Administrator's
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284, Record). memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of the Court of Appeals
for investigation, report and recommendation. He submitted a report dated October 7, 1981.
Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul" the probate
proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for certiorari and
was also assigned to Judge Honrado. He dismissed it in his order of February 16, 1977 (pp. 398-402, Record). prohibition wherein she prayed that the will, the decree of probate and all the proceedings in the probate case be
declared void.
Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the estate to
Marilyn, and that the estate tax had been paid, closed the testamentary proceeding. Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that the testatrix
and the three attesting witnesses did not appear before him and that he notarized the will "just to accommodate a
brother lawyer on the condition" that said lawyer would bring to the notary the testatrix and the witnesses but the
About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita charged Judge lawyer never complied with his commitment.
Honrado with having probated the fraudulent will of Marcelina. The complainant reiterated her contention that the
testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will and that she did not know
English, the language in which the win was written. (In the decree of probate Judge Honrado did not make any The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do so did
finding that the will was written in a language known to the testatrix.) not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May
24, 1981).
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named Agapito
(the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not take into account Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the administrative case
the consequences of such a preterition. for having allegedly become moot and academic.

Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did not We hold that disciplinary action should be taken against respondent judge for his improper disposition of the
know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was not the next of testate case which might have resulted in a miscarriage of justice because the decedent's legal heirs and not the
kin of the testatrix. instituted heiress in the void win should have inherited the decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or rendering a SO ORDERED
manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance (Arts. 204 to
206, Revised Penal Code).

Administrative action may be taken against a judge of the court of first instance for serious misconduct or
inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error of
judgment. "For serious misconduct to exist, there must be reliable evidence showing that the judicial acts
complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-
known legal rules" (In relmpeachment of Horrilleno, 43 Phil. 212, 214-215).

Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably
negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection
which the law requires in the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974,
55 SCRA 107, 119).

In this case, respondent judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language "understood and known" to the
testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into
Filipino language". (p. 16, Record of testate case). That could only mean that the will was written in a language
not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of article 804 of
the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written
in English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where
Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language
of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and
giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have
noticed that the notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the
probate of the will so that he could have ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.

WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his salary
for one month is imposed on respondent judge (his compulsory retirement falls on December 25, 1981).

The case against respondent Yuipco has become moot and academic because she is no longer employed in the
judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao City. She is beyond this Court's
disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).
G.R. No. L-13431 November 12, 1919 Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the
testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second
In re will of Ana Abangan. contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary
GERTRUDIS ABANGAN, executrix-appellee, that both sheets be further signed on their margins by the testator and the witnesses, or be paged.
ANASTACIA ABANGAN, ET AL., opponents-appellants. 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
AVANCEÑA, J.: subject should be interpreted in such a way as to attain these primordal 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,
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed that adds nothing but demands more requisites entirely unnecessary, useless and frustative of the testator's last
July, 1916. From this decision the opponent's appealed. will, must be disregarded.

Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the As another ground for this appeal, it is alleged the records do not show that the testarix knew the dialect in which
disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the will is written. But the circumstance appearing in the will itself that same was executed in the city of Cebu and
the testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the
bottom by the three instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix contrary, to presume that she knew this dialect in which this will is written.
and the three witnesses, nor numbered by letters; and these omissions, according to appellants' contention, are
defects whereby the probate of the will should have been denied. We are of the opinion that the will was duly
admitted to probate. For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the
In requiring that each and every sheet of the will should also be signed on the left margin by the testator and
three witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the case) evidently So ordered.
has for its object (referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby
changing the testator's dispositions. But when these dispositions are wholly written on only one sheet signed at
the bottom by the testator and three witnesses (as the instant case), their signatures on the left margin of said
sheet would be completely purposeless. In requiring this signature on the margin, the statute took into
consideration, undoubtedly, the case of a will written on several sheets and must have referred to the sheets
which the testator and the witnesses do not have to sign at the bottom. A different interpretation would assume
that the statute requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute to the
statute such an intention. As these signatures must be written by the testator and the witnesses in the presence
of each other, it appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another
signature on its left margin would be unneccessary; and if they do not guaranty, same signatures, affixed on
another part of same sheet, would add nothing. We cannot assume that the statute regards of such importance
the place where the testator and the witnesses must sign on the sheet that it would consider that their signatures
written on the bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient

In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part
of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has been
removed. But, when all the dispositive parts of a will are written on one sheet only, the object of the statute
disappears because the removal of this single sheet, although unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not
this clause is an essential part of the will, we hold that in the one accompanying the will in question, the
signatures of the testatrix and of the three witnesses on the margin and the numbering of the pages of the sheet
are formalities not required by the statute. Moreover, referring specially to the signature of the testatrix, we can
add that same is not necessary in the attestation clause because this, as its name implies, appertains only to the
witnesses and not to the testator since the latter does not attest, but executes, the will.
G.R. No. 42258 September 5, 1936 place the mark between her name and surname, after she herself had moistened the tip of her thumb with which
she made such mark, on the ink pad which was brought to her for said purpose. Said attorney later signed the
In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant, three pages of the will in the presence of the testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and
vs. Perfecto L. Ona, who, in turn, forthwith signed it successively and exactly under the same circumstances above
AQUILINA TOLENTINO, oppositor-appellant. stated.

DIAZ, J.: In support of her claim that the testatrix did not place her thumbmark on the will on September 7, 1983, and that
she never made said will because she was no longer physically or mentally in a condition do so, the oppositor
cites the testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and her own.
There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of January 29, 1935,
praying for the reconsideration of the decision of the court and that of the same date, praying for a new trial.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the morning of
September 7, 1933, in the house of the deceased where they were then living, and that the first time that they
The oppositor bases her motion for reconsideration upon the following facts relied upon in her pleading: saw him there was at about 12 o'clock noon on September 8th of said year, when Leoncia Tolentino was already
dead, Gliceria Quisonia stating that on that occasion Almario arrived there accompanied only by woman named
1. That the testatrix did not personally place her thumbmark on her alleged will; Pacing. They did not state that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L.
Ona, the instrumental witnesses of the will. Said two witnesses, however, could not but admit that their room was
2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces of the will situated at the other end of the rooms occupied by the deceased herself and by the petitioner Victorio Payad,
where she should place her thumbmarks; and that their said room and that of Victorio Payad are separated by the stairs of the house; that Gliceria
Quisonia saw the deceased only once on the 7th and twice on the 8th, and that Julian Rodriguez stayed in his
room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said month. Gliceria Quisonia further stated that
3. That the will in question was not signed by the testatrix on the date indicated therein; in the morning of September 7th, she prepared the noonday meal in the kitchen which was situated under the
house. Under such circumstances it is not strange that the two did not see the testatrix when, according to the
4. That the testatrix never made the will in question; and evidence for the petitioner, she made her will and signed it by means of her thumbmark. In order to be able to
see her and also Almario and the instrumental witnesses of the will, on that occasion, it was necessary for them
to enter the room where the deceased was, or at least the adjoining room where the will was prepared by
5. That on the date the will in question was executed, the testatrix was no longer in a physical or mental condition
Attorney Almario, but they did not do so.
to make it.

Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so weak that she
We have again reviewed the evidence to determine once more whether the errors assigned by the oppositor in
could not move and that she could hardly be understood because she could no longer enunciate, making it
her brief have not been duly considered, whether some fact or detail which might have led us to another
understood thereby, that in such condition it was absolutely impossible for her to make any will. The attorney for
conclusion has been overlooked, or whether the conclusions arrived at in our decision are not supported by the
the oppositor insists likewise and more so because, according to him and his witness Paz de Leon, two days
evidence. We have found that the testatrix Leoncia Tolentino, notwithstanding her advanced age of 92 years,
before the death of the testatrix, or on September 6, 1933, she could not even open her eyes or make herself
was in good health until September 1, 1933. She had a slight cold on said date for which reason she was visited
by her physician, Dr. Florencio Manuel. Said physician again visited her three or four days later and found her
still suffering from said illness but there was no indication that she had but a few days to live. She ate
comparatively well and conserved her mind and memory at least long after noon of September 7, 1933. She took The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the petitioner-
her last nourishment of milk in the morning of the following day, September 8, 1933, and death did not come to appellant or that of Attorney Almario and the three instrumental witnesses of the will because, to corroborate
her until 11 o'clock sharp that morning. them, we have of record the testimony of the physician of the deceased and the accountant Ventura Loreto who
are two disinterested witnesses, inasmuch as the outcome of these proceedings does not affect them in the
least. The two testified that two, three or four days before the death of the testatrix, they visited her in her home,
The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon on September
the former professionally, and the latter as an acquaintance, and they then found her not so ill as to be unable to
7, 1933, in the house of the testatrix Leoncia Tolentino, after she had expressed to said attorney her desire to
move or hold a conversation. They stated that she spoke to them intelligently; that she answered all the
make a will and bequeath her property to the petitioner Victorio Payad in compensation according to her, for his
questions which they had put to her, and that she could still move in spite of her weakness.
diligent and faithful services rendered to her. Victorio Payad had grown up under the care of the testatrix who
had been in her home from childhood. The will was written by Attorney Almario in his own handwriting, and was
written in Spanish because he had been instructed to do so by the testatrix. It was later read to her in the In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for reconsideration
presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons who were then present. The is unfounded.
testatrix approved all the contents of the document and requested Attorney Almario to write her name where she
had to sign by means of her thumbmark in view of the fact that her fingers no longer had the necessary strength The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death, the deceased
to hold a pen. She did after having taken the pen and tried to sign without anybody's help. Attorney Almario left a letter signed by herself, placed in a stamped envelope and addressed to Teodoro R. Yangco, with
proceeded to write the name of the testatrix on the three pages composing the will and the testatrix placed her instructions not to open it until after her death; (2) that there are witnesses competent to testify on the letter in
thumbmark on said writing with the help of said attorney, said help consisting in guiding her thumb in order to question, in addition to other evidence discovered later, which could not be presented at the trial; (3) that in the
letter left by the deceased, she transfers all her property to Teodoro R. Yangco stating therein that, upon her Attorney Viola was present, and the oppositor then could have very well called him to the witness stand,
death, all the property in question should become Yangco's. From this alleged fact, the oppositor infers that the inasmuch as her attorney already knew what Attorney Viola was to testify about, yet she did not call him. The last
deceased never had and could not have had the intention to make the will in question, and (4) that said oppositor fact is shown by the following excerpt from pages 148 to 150 of the transcript:
knew of the existence of said letter only after her former attorney, Alejandro Panis, had been informed thereof in
May, 1935, by one of Teodoro R. Yangco's attorneys named Jose Cortes. Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to present as the
last witness Attorney Fernando Viola who was called by the petitioner Victoria Payad to prepare the will
Subsequent to the presentation of the motion for a new trial, the oppositor filed another supplementary motion of the deceased in his favor on September 5, 1933.
alleging that she had discovered some additional new evidence consisting in the affidavit of Attorney Gabino
Fernando Viola wherein the latter affirms that Victorio Payad had called him on September 5, 1933, to prepare COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? — Mr. PANIS: No, Your
the will of the deceased but he did not do so because after seeing her he had been convinced that she could not Honor.
make a will because she had lost her speech and her eyes were already closed.
COURT: Well, where is that attorney? Where is that witness whom you wish to call to the witness
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the facts alleged by stand? — Mr. PANIS: Your Honor, he is busy in the branch, presided over by Judge Sison.
the oppositor, are attached to both motions for a new trial.
COURT: And when can he come? Mr. — PANIS. I am now going to find out, Your Honor. If the other
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly discovered party, Your Honor, is willing to admit what said witness is going to testify in the sense that said Attorney
evidence, and are not admissible to warrant the holding of a new trial, because the oppositor had been informed Fernando Viola went to the house of the deceased on September 5, 1933, for the purpose of talking to
of the facts affirmed by Attorney Jose Cortes in his affidavit long before this case was decided by this court. It is the deceased to draft the will upon petition of Mr. Victorio Payad; if the other party admits that, then I am
stated in said affidavit that in May, 1935, Attorney Jose Cortes revealed to the attorney for oppositor the fact that going waive the presentation of the witness Mr. Fernando Viola.
the deceased had left a letter whereby she transferred all her property to Teodoro R. Yangco, and the judgment
was rendered only on January 15, 1936, or eight months later.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.
The oppositor contends that she had no reason to inform the court of said newly discovered evidence inasmuch
as the judgment of the lower court was favorable to her. She, however, overlooks the fact that she also appealed COURT: The court had already assumed beforehand that the other party would not admit that
from the decision of the lower court and it was her duty, under the circumstances, to inform this court of the proposition.
discovery of said allegedly newly discovered evidence and to take advantage of the effects thereof because, by
so doing, she could better support her claim that the testatrix made no will, much less the will in question. Said Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without prejudice
evidence, is not new and is not of the nature of that which gives rise to a new trial because, under the law, in to the other party's calling the witness it may wish to call.
order that evidence may be considered newly discovered evidence and may serve as a ground for a new trial, it
is necessary (a) that it could not have been discovered in time, even by the exercise of due diligence; (b) that it COURT: The court reserves to the oppositor its right to call Attorney Viola to the witness stand.
be material, and (c) that it also be of such a character as probably to change the result if admitted (section 497,
Act No. 190; Banal vs. Safont, 8 Phil., 276).
If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it might have
been because she considered his testimony unimportant and unnecessary, and at the present stage of the
The affidavit of Attorney Cortes is neither material nor important in the sense that, even considering it newly proceedings, it is already too late to claim that what said attorney may now testify is a newly discovered
discovered evidence, it will be sufficient to support the decision of the lower court and modify that of this court. It evidence.
is simply hearsay or, at most, corroborative evidence. The letter of the deceased Leoncia Tolentino to Teodoro
R. Yangco would, in the eyes of the law, be considered important or material evidence but this court has not the
letter in question before it, and no attempt was ever made to present a copy thereof. For the foregoing considerations, those stated by this court in the original decision, and the additional reason
that, as held in the case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly
discovered evidence is limited to ordinary cases pending in this court on bills of exceptions, the motion for
The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is not more reconsideration and a new trial filed by the oppositor are hereby denied, ordering that the record be remanded
competent than that of Attorney Jose Cortes because, granting that when he was called by Victorio Payad to immediately to the lower court.
help the deceased Leoncia Tolentino to make her will and he went to her house on September 5, 1933, the
deceased was almost unconscious, was unintelligible and could not speak, it does not necessarily mean that on
the day she made her will, September 7, 1933, she had not recovered consciousness and all her mental faculties So ordered.
to capacitate her to dispose of all her property. What Attorney Gabino Fernando Viola may testify pursuant to his
affidavit in question is not and can not be newly discovered evidence of the character provided for by law, not
only because it does not exclude the possibility that testatrix had somewhat improved in health, which possibility
became a reality at the time she made her will because she was then in the full enjoyment of her mental
faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio Payad and
Marciano Almario, but also because during the hearing of these proceedings in the Court of First Instance,
G.R. No. L-10907 June 29, 1957 authorized by law therefor, should the court be reluctant to appoint the movant as special administratrix of said
estate. This motion for reconsideration was denied on March 26, 1956.
AUREA MATIAS, petitioner,
vs. Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested authority to
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents. collect the rents due, or which may be due, to the estate of the deceased and to collect all the produce of her
lands, which was granted on June 23, 1956. On June 27, 1956, said respondents filed another motion praying for
CONCEPCION, J.: permission to sell the palay of the deceased then deposited in different rice mills in the province of Cavite, which
respondent judge granted on June 10, 1956. Later on, or on July 10, 1956, petitioner instituted the present action
against Judge Gonzales, and Victorina Salud and Ramon Plata, for the purpose of annulling the above
Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L. Gonzales, as Judge mentioned orders of respondent Judge, upon the ground that the same had been issued with grave abuse of
of the Court of First Instance of Cavite, in connection with Special Proceedings No. 5213 of said court, entitled discretion amounting to lack or excess of jurisdiction.
"Testate Estate of the Deceased Gabina Raquel."
In support of this pretense, it is argued that petitioner should have preference in the choice of special
On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a document administratrix of the estate of the decedent, she (petitioner) being the universal heiress to said estate and, the
purporting to be the last will and testament of her aunt, Gabina Raquel, who died single on May 8, 1952, at the executrix appointed in the alleged will of the deceased, that until its final disallowance — which has not, as yet,
age of 92 years. The heir to the entire estate of the deceased — except the properties bequeathed to her other taken place she has a special interest in said estate, which must be protected by giving representation thereto in
niece and nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and Rafael the management of said estate; that, apart from denying her any such representation, the management was
Matias — is, pursuant to said instrument, Aurea Matias, likewise, appointed therein as executrix thereof, without given to persons partial to her main opponent, namely, Basilia Salud, inasmuch as Victorina Salud is allied to her
bond. Basilia Salud, a first cousin of the deceased, opposed the probate of her alleged will, and, after appropriate and Ramon Plata is a very close friend of one of her (Basilia Salud's) attorneys; that Basilia Salud was made
proceedings, the court, presided over by respondent Judge, issued an order, dated February 8, 1956, sustaining special administratrix despite her obvious unfitness for said office, she being over eighty (80) years of age and
said opposition and denying the petition for probate. Subsequently, Aurea Matias brought the matter on appeal to blind; that said disability is borne out by the fact that on March 17, 1956, Basilia Salud resigned as special
this Court (G.R. No. L-10751), where it is now pending decision. administratrix upon such ground; that the Rules of Court do not permit the appointment of more than one special
administrator; that Horacio Rodriguez was removed without giving petitioner a chance to be heard in connection
Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as special therewith; and that Ramon Plata and Victorina Salud were authorized to collect the rents due to the deceased
administrator of the estate of the deceased, and the appointment, in his stead of Ramon Plata. The motion was and the produce of her lands, as well to sell her palay, without previous notice to the petitioner herein.
set for hearing on February 23, 1956, on which date the court postponed the hearing to February 27, 1956.
Although notified of this order, Rodriguez did not appear on the date last mentioned. Instead, he filed an urgent Upon the other hand, respondents maintain that respondent Judge acted with the scope of his jurisdiction and
motion praying for additional time within which to answer the charges preferred against him by Basilia Salud and without any abuse of discretion; that petitioner can not validly claim any special interest in the estate of the
for another postponement of said hearing. This motion was not granted, and Basilia Salud introduced evidence in deceased, because the probate of the alleged will and testament of the latter — upon which petitioner relies —
support of said charges, whereupon respondent Judge by an order, dated February 27, 1956, found Rodriguez has been denied; that Horacio Rodriguez was duly notified of the proceedings for his removal; and that Victorina
guilty of abuse of authority and gross negligence, and, accordingly, relieved him as special administrator of the Salud and Ramon Plata have not done anything that would warrant their removal.
estate of the deceased and appointed Basilia Salud as special administratrix thereof, to "be assisted and advised
by her niece, Miss Victorina Salud," who "shall always act as aide, interpreter and adviser of Basilia Salud." Said
order, likewise, provided that "Basilia Salud shall be helped by Mr. Ramon Plata . . . who is hereby appointed as Upon a review of the record, we find ourselves unable to sanction fully the acts of respondent Judge, for the
co-administrator." following reasons:

On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she be 1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated February 17, 1956,
appointed special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia Salud is over the record shows that petitioner herein received copy of said motion of February 24, 1956, or the date after that
eighty (80) years of age, totally blind and physically incapacitated to perform the duties of said office, and that set for the hearing thereof. Again, notice of the order of respondent Judge, dated February 23, 1956, postponing
said movant is the universal heiress of the deceased and the person appointed by the latter as executrix of her said hearing to February 27, 1956, was not served on petitioner herein.
alleged will. This motion was denied in an order dated March 10, 1956, which maintained "the appointment of the
three above named persons" — Basilia Salud, Ramon Plata and Victorina Salud — "for the management of the 2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and the
estate of the late Gabina Raquel pending final decision on the probate of the alleged will of said decedent." appointment of Ramon Plata, as special administrator of said estate. Petitioner had, therefore, no notice that her
However, on March 17, 1956, Basilia Salud tendered her resignation as special administratrix by reason of main opponent, Basilia Salud, and the latter's principal witness, Victorina Salud, would be considered for the
physical disability, due to old age, and recommended the appointment, in her place, of Victorina Salud. Before management of said. As a consequence, said petitioner had no opportunity to object to the appointment of
any action could be taken thereon, or on March 21, 1956, Aurea Matias sought a reconsideration of said order of Basilia Salud as special administratrix, and of Victorina Salud, as her assistant and adviser, and the order of
March 10, 1956. Moreover, on March 24, 1956, she expressed her conformity to said resignation, but objected to February 27, 1956, to this effect, denied due process to said petitioner.
the appointment, in lieu of Basilia Salud, of Victorina Salud, on account of her antagonism to said Aurea Matias
— she (Victorina Salud) having been the principal and most interested witness for the opposition to the probate
of the alleged will of the deceased — and proposed that the administration of her estate be entrusted to the
Philippine National Bank, the Monte de Piedad, the Bank of the Philippine Islands, or any other similar institution
3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise respondent
Judge would not have directed that she "be assisted and advised by her niece Victorina Salud," and that the
latter "shall always act as aide, interpreter and adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special administrators — Basilia Salud, Victorina Salud
and Ramon Plata. Indeed, in the order of March 10, 1956, respondent Judge maintained "the appointment of the
three (3) above-named persons for the management of the estate of the late Gabina Raquel."

5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between Aurea Matias and
Basilia Salud regarding the person to be appointed special administrator of the estate of the deceased. The
former proposed Horacio Rodriguez, whereas the latter urged the appointment of Victorina Salud. By an order
dated August 11, 1952, the Court, then presided over by Hon. Jose Bernabe, Judge, decided the matter in favor
of Horacio Rodriguez and against Victorina Salud, upon the ground that, unlike the latter, who, as a pharmacist
and employee in the Santa Isabel Hospital, resides In the City of Manila, the former, a practicing lawyer and a
former public prosecutor, and later, mayor of the City of Cavite, is a resident thereof. In other words, the order of
resident thereof. In other words, the order of respondent Judge of February 27, 1956, removing Rodriguez and
appointing Victorina Salud to the management of the estate, amounted to a reversal of the aforementioned order
of Judge Bernabe of August 11, 1952.

6. Although the probate of the alleged will and testament of Gabina Raquel was denied by respondent Judge, the
order to this effect is not, as yet, final and executory. It is pending review on appeal taken by Aurea Matias. The
probate of said alleged will being still within realm of legal possibility, Aurea Matias has — as the universal heir
and executrix designated in said instrument — a special interest to protect during the pendency of said appeal.
Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058), this Court held that a widow, designated as
executrix in the alleged will and testament of her deceased husband, the probate of which had denied in an order
pending appeal, "has . . . the same beneficial interest after the decision of the court disapproving the will, which
is now pending appeal, because the decision is not yet final and may be reversed by the appellate court."

7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely, one,
represented by the petitioner, and another, to which Basilia Salud and Victorina Salud belong. Inasmuch as the
lower court had deemed it best to appoint more than one special administrator, justice and equity demands that
both factions be represented in the management of the estate of the deceased.

The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special administrator may be
appointed to administrator temporarily" the estate of the deceased, must be considered in the light of the facts
obtaining in said case. The lower court appointed therein one special administrator for some properties forming
part of said estate, and a special administratrix for other properties thereof. Thus, there were two (2) separate
and independent special administrators. In the case at bar there is only one (1) special administration, the
powers of which shall be exercised jointly by two special co-administrators. In short, the Roxas case is not
squarely in point. Moreover, there are authorities in support of the power of courts to appoint several special co-
administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d.,
49; Davenport vs. Davenport, 60 A. 379).

Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-hear the
matter of removal of Horacio Rodriguez and appointment of special administrators, after due notice to all parties
concerned, for action in conformity with the views expressed herein, with costs against respondents Victorina
Salud and Ramon Plata. It is so ordered.
G.R. No. L-4067 November 29, 1951 the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of
a thumbmark.
In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs. What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause
JULIANA LACUESTA, ET AL., respondents. 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.
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

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



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
G.R. No. L-6285 February 15, 1912 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. . . .
PEDRO BARUT, petitioner-appellant,
vs. This is the important part of the section under the terms of which the court holds that the person who signs the
FAUSTINO CABACUNGAN, ET AL., opponents-appellees. name of the testator for him must also sign his own name The remainder of the section reads:

MORELAND, J.: 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
This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No. subscribed it in his presence and in the presence of each other. But the absence of such form of
6284,1 just decided by this court, wherein there was an application for the probate of an alleged last will and attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in
testament of the same person the probate of whose will is involved in this suit. this section provided.

This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant whether the
Salomon, deceased. It is alleged in the petition of the probate that Maria Salomon died on the 7th day of person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears
November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, that the name of the testatrix was signed at her express direction in the presence of three witnesses and that
1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been they attested and subscribed it in her presence and in the presence of each other. That is all the statute requires.
witnesses to the execution thereof. By the terms of said will Pedro Barut received the larger part of decedent's 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
property. 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
The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish appears law; and the reasons underlying the provisions of the statute relating to the execution of wills do not in any sense
at page 11. After disposing of her property the testatrix revoked all former wills by her made. She also stated in require such a provision. From the standpoint of language it is an impossibility to draw from the words of the law
said will that being unable to read or write, the same had been read to her by Ciriaco Concepcion and Timotea the inference that the persons who signs the name of the testator must sign his own name also. The law requires
Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix. only three witnesses to a will, not four.

The probate of the will was contested and opposed by a number of the relatives of the deceased on various Nor is such requirement found in any other branch of the law. The name of a person who is unable to write may
grounds, among them that a later will had been executed by the deceased. The will referred to as being a later be signed by another by express direction to any instrument known to the law. There is no necessity whatever,
will is the one involved in case No. 6284 already referred to. Proceeding for the probate of this later will were so far as the validity of the instrument is concerned, for the person who writes the name of the principal in the
pending at the time. The evidence of the proponents and of the opponents was taken by the court in both cases document to sign his own name also. As a matter of policy it may be wise that he do so inasmuch as it would
for the purpose of considering them together. 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
In the case before us the learned probate court found that the will was not entitled to probate upon the sole established in the execution of the will is the signature of the testator. If that signature is proved, whether it be
ground that the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on written by himself or by another at his request, it is none the less valid, and the fact of such signature can be
her behalf looked more like the handwriting of one of the other witnesses to the will than that of the person proved as perfectly and as completely when the person signing for the principal omits to sign his own name as it
whose handwriting it was alleged to be. We do not believe that the mere dissimilarity in writing thus mentioned by can when he actually signs. To hold a will invalid for the lack of the signature of the person signing the name of
the court is sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the signature the principal is, in the particular case, a complete abrogation of the law of wills, as it rejects and destroys a will
of the testatrix was written by Severo Agayan at her request and in her presence and in the presence of all the which the statute expressly declares is valid.
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. 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
The court seems , by inference at least, to have had in mind that under the law relating to the execution of a will Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The headnote in the case last
it is necessary that the person who signs the name of the testatrix must afterwards sign his own name; and that, above stated gives an indication of what all of cases are and the question involved in each one of them. It says:
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 The testatrix was not able to sign it for her. Instead of writing her name he wrote his own upon the
will is accordingly invalid, such fact indicating that the person who signed the name of the testatrix failed to sign will. Held, That the will was not duly executed.
his own. We do not believe that this contention can be sustained. Section 618 of the Code of Civil Procedure
reads as follows:
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
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
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
G.R. No. L-5971 February 27, 1911 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
BEATRIZ NERA, ET AL., plaintiffs-appellees, merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine
vs. further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat
NARCISA RIMANDO, defendant-appellant. 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.
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
G.R. No. L-7179 June 30, 1955 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
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee, that had been previously ruled out by the trial Court. Besides, the contradiction is hardly consonant with this
vs. witness' 18 years of service to the deceased.
DOÑA MATEA LEDESMA, oppositor-appellant.
Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the
REYES, J.B.L., J.: 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.
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan Neither are we impressed by the argument that the use of some Spanish terms in the codicil and testament
dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria (like legado, partes iguales, plena propiedad) is proof that its contents were not understood by the testatrix, it
Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria appearing in evidence that those terms are of common use even in the vernacular, and that the deceased was a
Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest woman of wide business interests.
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. 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).
Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the Now, the instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that
dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court after the codicil had been signed by the testatrix and the witnesses at the San Pablo Hospital, the same was
below, where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was signed and sealed by notary public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he
executed by the testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause did not do so, but brought the codicil to his office, and signed and sealed it there. The variance does not
was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due to a well-
and (3) if so, whether the codicil was thereby rendered invalid and ineffective. These questions are the same established phenomenon, the tendency of the mind, in recalling past events, to substitute the usual and habitual
ones presented to us for resolution. for what differs slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870).

The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and At any rate, as observed by the Court below, whether or not the notary signed the certification of
Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil.
1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the testator, witnesses
the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil
could not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in Code reveals that while testator and witnesses sign in the presence of each other, all that is thereafter required is
the attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e.,
and returned it with the statement that no one would question it because the property involved was exclusively that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of
hers. 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
Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate
improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that
witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman
testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible error was committed by the Court in
on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either so holding. It is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the
Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed.
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. The decision admitting the will to probate is affirmed, with costs against appellant.
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