A.M. No.
2026-CFI December 19, 1981 On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25
and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to probate a
will, which on its face is void because it is written in English, a language not known to the
illiterate testatrix, and which is probably a forged will because she and the attesting witnesses
did not appear before the notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the certiorari case in
the Court of Appeals which reveal the following tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort
McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were
childless. They reared a boy named Agapito who used the surname Suroza and who considered
them as his parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of
CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when
Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal
Government. That explains why on her death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist and went
abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as
his guardian in 1953 when he was declared an incompetent in Special Proceeding No. 1807 of
the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be
his guardian in another proceeding. Arsenia tried to prove that Nenita was living separately
from Agapito and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito
(pp. 61-63, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed
Nenita's appointment as 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).
child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz
(apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador Suroza
who brought her up as a supposed daughter of Agapito and as her granddaughter (pp. 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 Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73
years old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in
English to the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In
that wig, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of
her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a
150-square meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record of
testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo)
and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar,
Marilyn's husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition
for the probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo P.
Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline
S. Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing
before the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the
following day, April 1, Judge Honrado issued two orders directing the Merchants Banking
Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the
savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the
custodian of the passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a
deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V.
Suroza, and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the
said proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the
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 the
probate court's jurisdiction to issue the ejectment order.
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 heiress (pp. 74-77, 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 Marilyn was a stranger to Marcelina, that the will was not
duly executed and attested, that it was procured by means of undue influence employed by
Marina and Marilyn and that the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of
Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina,
who swore that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and her
omnibus motion to set aside the proceedings (filed on April 24), Nenita filed the next day, April
25, an opposition to the probate of the will and a counter-petition for letters of administration.
In that opposition, Nenita assailed the due execution of the will and stated the names and
addresses of Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita
was not aware of the decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece,
who swore that Marcelina never executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn
was not Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and
that Agapito was not Marcelina's son but merely an anak-anakan who was not legally adopted
(p. 143, Record).
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 of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V.
Suroza reiterated her contention that the alleged will is void because Marcelina did not appear
before the notary and because it is written in English which is not known to her (pp. 208-209,
Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p.
284, Record).
Instead of appealing from that order and the order probating the 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), was also assigned to Judge Honrado. He dismissed it in his
order of February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the executrix had
delivered the estate to Marilyn, and that the estate tax had been paid, closed the testamentary
proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this Court,
Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The
complainant reiterated her contention that the testatrix was illiterate as shown by the fact that
she affixed her thumbmark to the will and that she did not know English, the language in which
the win was written. (In the decree of probate Judge Honrado did not make any finding that the
will was written in a language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son
named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in
the will, did not take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed him that the
testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy
and that she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts
to withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to
the record of the probate case by alleging that it was useless for Nenita to oppose the probate
since Judge Honrado would not change his decision. Nenita also said that Evangeline insinuated
that if she (Nenita) had ten thousand pesos, the case might be decided in her favor. Evangeline
allegedly advised Nenita to desist from claiming the properties of the testatrix because she
(Nenita) had no rights thereto and, should she persist, she might lose her pension from the
Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations of the
complaint. He merely pointed to the fact that Nenita did not appeal from the decree of probate
and that in a motion dated July 6, 1976 she asked for a thirty day period within which to vacate
the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter
did not mention Evangeline in her letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from
having access to the record of the testamentary proceeding. Evangeline was not the custodian
of the record. Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she
(Evangeline) said that the sum of ten thousand pesos was needed in order that Nenita could get
a favorable decision. Evangeline also denied that she has any knowledge of Nenita's pension
from the Federal Government.
The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court
Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A.
Sison of the Court of Appeals for investigation, report and recommendation. He submitted a
report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition
for certiorari and prohibition wherein she prayed that the will, the decree of probate and all the
proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He
swore that the testatrix and the three attesting witnesses did not appear before him and that he
notarized the will "just to accommodate a brother lawyer on the condition" that said lawyer
would bring to the notary the testatrix and the witnesses but the lawyer never complied with his
commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her
failure to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs.
Honrado, CA-G.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his improper
disposition of the testate case which might have resulted in a miscarriage of justice because the
decedent's legal heirs and not the 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 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
re lmpeachment 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).
SO ORDERED.
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
AVANCEÑA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's
will executed July, 1916. From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which
contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban
(in the name and under the direction of the testatrix) and by three witnesses. The following
sheet contains only the attestation clause duly signed at the bottom by the three instrumental
witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three
witnesses, nor numbered by letters; and these omissions, according to appellants' contention,
are defects whereby the probate of the will should have been denied. We are of the opinion that
the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left margin by the
testator and three witnesses in the presence of each other, Act No. 2645 (which is the one
applicable in the case) evidently has for its object (referring to the body of the will itself) to
avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But
when these dispositions are wholly written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case), their signatures on the left margin of said
sheet would be completely purposeless. In requiring this signature on the margin, the statute
took into consideration, undoubtedly, the case of a will written on several sheets and must have
referred to the sheets which the testator and the witnesses do not have to sign at the bottom. A
different interpretation would assume that the statute requires that this sheet, already signed
at the bottom, be signed twice. We cannot attribute to the statute such an intention. As these
signatures must be written by the testator and the witnesses in the presence of each other, it
appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another
signature on its left margin would be 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 security.
In requiring that each and every page of a will must be numbered correlatively in letters placed
on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know
whether any sheet of the will has been removed. But, when all the dispositive parts of a will are
written on one sheet only, the object of the statute disappears because the removal of this
single sheet, although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without considering
whether or not this clause is an essential part of the will, we hold that in the one accompanying
the will in question, the signatures of the testatrix and of the three witnesses on the margin and
the numbering of the pages of the sheet are formalities not required by the statute. Moreover,
referring specially to the signature of the testatrix, we can add that same is not necessary in the
attestation clause because this, as its name implies, appertains only to the witnesses and not to
the testator since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which
contains all the testamentary dispositions and is signed at the bottom by the testator and three
witnesses and the second contains only the attestation clause and is signed also at the bottom
by the three witnesses, it is not necessary that both sheets be further signed on their margins
by the testator and the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain
these 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, that
adds nothing but demands more requisites entirely unnecessary, useless and frustative of the
testator's last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the testarix knew
the dialect in which the will is written. But the circumstance appearing in the will itself that
same was executed in the city of Cebu and in the dialect of this locality where the testatrix was
a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this
dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with costs
against the appellants. So ordered.
G.R. No. 42258 September 5, 1936
In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.
DIAZ, J.:
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.
The oppositor bases her motion for reconsideration upon the following facts relied upon in her
pleading:
1. That the testatrix did not personally place her thumbmark on her alleged will;
2. That the testatrix did not request Attorney Almario to write her name and surname on the
spaces of the will where she should place her thumbmarks;
3. That the will in question was not signed by the testatrix on the date indicated therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix was no longer in a physical
or mental condition to make it.
We have again reviewed the evidence to determine once more whether the errors assigned by
the oppositor in her brief have not been duly considered, whether some fact or detail which
might have led us to another conclusion has been overlooked, or whether the conclusions
arrived at in our decision are not supported by the evidence. We have found that the testatrix
Leoncia Tolentino, notwithstanding her advanced age of 92 years, 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 her last nourishment of milk in the morning of the
following day, September 8, 1933, and death did not come to her until 11 o'clock sharp that
morning.
The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock
noon on September 7, 1933, in the house of the testatrix Leoncia Tolentino, after she had
expressed to said attorney her desire to make a will and bequeath her property to the
petitioner Victorio Payad in compensation according to her, for his 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 presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons
who were then present. The 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 to hold a pen. She did after
having taken the pen and tried to sign without anybody's help. Attorney Almario proceeded to
write the name of the testatrix on the three pages composing the will and the testatrix placed
her thumbmark on said writing with the help of said attorney, said help consisting in guiding
her thumb in order to 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 three pages of the will in the
presence of the testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and Perfecto L. Ona,
who, in turn, forthwith signed it successively and exactly under the same circumstances above
stated.
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.
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 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 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 situated at the other end of the rooms occupied by the deceased herself and by the
petitioner Victorio Payad, 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 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 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 Attorney Almario, but they did
not do so.
Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so
weak that she could not move and that she could hardly be understood because she could no
longer enunciate, making it understood thereby, that in such condition it was absolutely
impossible for her to make any will. The attorney for the oppositor insists likewise and more so
because, according to him and his witness Paz de Leon, two days before the death of the
testatrix, or on September 6, 1933, she could not even open her eyes or make herself
understood.
The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the
petitioner-appellant or that of Attorney Almario and the three instrumental witnesses of the
will because, to corroborate 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 former
professionally, and the latter as an acquaintance, and they then found her not so ill as to be
unable to move or hold a conversation. They stated that she spoke to them intelligently; that
she answered all the questions which they had put to her, and that she could still move in spite
of her weakness.
In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion
for reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following facts: (1) That upon her
death, the deceased left a letter signed by herself, placed in a stamped envelope and addressed
to Teodoro R. Yangco, with instructions not to open it until after her death; (2) that there are
witnesses competent to testify on the letter in 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
death, all the property in question should become Yangco's. From this alleged fact, the
oppositor infers that the deceased never had and could not have had the intention to make the
will in question, and (4) that said oppositor 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.
Subsequent to the presentation of the motion for a new trial, the oppositor filed another
supplementary motion 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 the will of the deceased but he
did not do so because after seeing her he had been convinced that she could not make a will
because she had lost her speech and her eyes were already closed.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the
facts alleged by the oppositor, are attached to both motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly
discovered evidence, and are not admissible to warrant the holding of a new trial, because the
oppositor had been informed of the facts affirmed by Attorney Jose Cortes in his affidavit long
before this case was decided by this court. It is stated in said affidavit that in May, 1935,
Attorney Jose Cortes revealed to the attorney for oppositor the fact that 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.
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 from the decision of the lower court and it was her
duty, under the circumstances, to inform this court of the 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
evidence, is not new and is not of the nature of that which gives rise to a new trial because,
under the law, in 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 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).
The affidavit of Attorney Cortes is neither material nor important in the sense that, even
considering it newly discovered evidence, it will be sufficient to support the decision of the
lower court and modify that of this court. It 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.
The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is
not more competent than that of Attorney Jose Cortes because, granting that when he was
called by Victorio Payad to 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 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, Attorney Viola
was present, and the oppositor then could have very well called him to the witness stand,
inasmuch as her attorney already knew what Attorney Viola was to testify about, yet she did
not call him. The last fact is shown by the following excerpt from pages 148 to 150 of the
transcript:
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 of the deceased in his favor on September
5, 1933.
COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? — Mr.
PANIS: No, Your Honor.
COURT: Well, where is that attorney? Where is that witness whom you wish to call to
the witness stand? — Mr. PANIS: Your Honor, he is busy in the branch, presided over
by Judge Sison.
COURT: And when can he come? Mr. — PANIS. I am now going to find out, Your Honor.
If the other party, Your Honor, is willing to admit what said witness is going to testify
in the sense that said Attorney Fernando Viola went to the house of the deceased on
September 5, 1933, for the purpose of talking to the deceased to draft the will upon
petition of Mr. Victorio Payad; if the other party admits that, then I am going waive the
presentation of the witness Mr. Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.
COURT: The court had already assumed beforehand that the other party would not
admit that proposition.
Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola,
without prejudice to the other party's calling the witness it may wish to call.
COURT: The court reserves to the oppositor its right to call Attorney Viola to the
witness stand.
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 proceedings, it is already too late to claim that what said
attorney may now testify is a newly discovered evidence.
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 reconsideration and a new trial filed by the
oppositor are hereby denied, ordering that the record be remanded immediately to the lower
court. So ordered.
Matias vs.Salud
L-10751, 23 June 1958
FACTS:
The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina Raquel was
suffering from herpes zoster that afflicted the right arm and shoulder of the testatrix, which
made writing difficult and a painful act. Thus, upon the insistence of the attorney, Gabina
attempted to sign, but since it was so painful she just managed to thumbmarked the foot of
the document and the left margin at each page. The parties opposing the probate of the will
contended that the will was void due to the irregularities in the execution thereof.
One of the points raised by the oppositors was that the finger mark can not be regarded as the
decedent’s valid signature as it does not show distinct identifying ridgelines. And since the
finger mark was an invalid signature, there must appear in the attestation clause that another
person wrote the testator’s name at his request.
ISSUE:
W/N the will was valid.
HELD:
YES. As to the clarity of the ridge impressions, it is so dependent on aleatory requirements as to
require dexterity that can be expected of very few persons; testators should not be required to
possess the skill of trained officers.
And as to the validity of the thumbprints as signature, the SC held that it has been held in a long
line of cases that a thumbprint is always a valid and sufficient signature for the purpose of
complying with the requirement of the article.
Furthermore, the validity of thumbprints should not be limited in cases of illness or infirmity. A
thumbprint is considered as a valid and sufficient signature in complying with
the requirements of the article.
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.
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.
G.R. No. L-6285 February 15, 1912
PEDRO BARUT, petitioner-appellant,
vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and
another, No. 6284,1 just 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.
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
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.
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the
document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and
testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the person
named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to
be published for three (3) successive weeks, previous to the time appointed, in the newspaper
"Manila chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and
on November 10, 1958, she petitioned to have herself appointed as a special administrator, to
which proponent objected. Hence, on November 18, 1958, the court issued an order appointing
the Philippine Trust Company as special administrator. 1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation
adopting as his own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but
on June 1, 1959, he filed a motion for the admission of an amended and supplemental petition,
alleging that the decedent left a will executed in duplicate with all the legal requirements, and
that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly
found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de
Gomez and Enrique Icasiano filed their joint opposition to the admission of the amended and
supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on
July 30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the
parties presented their respective evidence, and after several hearings the court issued the
order admitting the will and its duplicate to probate. From this order, the oppositors appealed
directly to this Court, the amount involved being over P200,000.00, on the ground that the
same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of
Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last
will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and attested by three instrumental witnesses, namely:
attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three instrumental witnesses on the same date
before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will
was actually prepared by attorney Fermin Samson, who was also present during the execution
and signing of the decedent's last will and testament, together with former Governor Emilio
Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament, attorneys Torres and
Natividad were in the Philippines at the time of the hearing, and both testified as to the due
execution and authenticity of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who
actually prepared the document. The latter also testified upon cross examination that he
prepared one original and two copies of Josefa Villacorte last will and testament at his house in
Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one
unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the
filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the
end and in every page, it does not contain the signature of one of the attesting witnesses, Atty.
Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended
and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three
attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the
will and its duplicate were subscribed at the end and on the left margin of each and every page
thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses
in the testatrix's presence and in that of one another as witnesses (except for the missing
signature of attorney Natividad on page three (3) of the original); that pages of the original and
duplicate of said will were duly numbered; that the attestation clause thereof contains all the
facts required by law to be recited therein and is signed by the aforesaid attesting witnesses;
that the will is written in the language known to and spoken by the testatrix that the attestation
clause is in a language also known to and spoken by the witnesses; that the will was executed
on one single occasion in duplicate copies; and that both the original and the duplicate copies
were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2,
1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that
he may have lifted two pages instead of one when he signed the same, but affirmed that page
three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of
the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on
the same occasion as the original, and further aver that granting that the documents were
genuine, they were executed through mistake and with undue influence and pressure because
the testatrix was deceived into adopting as her last will and testament the wishes of those who
will stand to benefit from the provisions of the will, as may be inferred from the facts and
circumstances surrounding the execution of the will and the provisions and dispositions
thereof, whereby proponents-appellees stand to profit from properties held by them as
attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-
appellants are enjoined not to look for other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed
both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will
spontaneously, on the same in the presence of the three attesting witnesses, the notary public
who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the
will and its duplicate were executed in Tagalog, a language known to and spoken by both the
testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together
before they were actually signed; that the attestation clause is also in a language known to and
spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe
Logan, that the signatures of the testatrix appearing in the duplicate original were not written
by the same had which wrote the signatures in the original will leaves us unconvinced, not
merely because it is directly contradicted by expert Martin Ramos for the proponents, but
principally because of the paucity of the standards used by him to support the conclusion that
the differences between the standard and questioned signatures are beyond the writer's range
of normal scriptural variation. The expert has, in fact, used as standards only three other
signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we
feel that with so few standards the expert's opinion and the signatures in the duplicate could
not be those of the testatrix becomes extremely hazardous. This is particularly so since the
comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that
would justify the charge of forgery, taking into account the advanced age of the testatrix, the
evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed
right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned
signatures does not appear reliable, considering the standard and challenged writings were
affixed to different kinds of paper, with different surfaces and reflecting power. On the whole,
therefore, we do not find the testimony of the oppositor's expert sufficient to overcome that of
the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the
United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are
more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14
Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for
making a testament; otherwise, the decedent might as well die intestate. The testamentary
dispositions that the heirs should not inquire into other property and that they should respect
the distribution made in the will, under penalty of forfeiture of their shares in the free part do
not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent
prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion
of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses
are valid or not is a matter to be litigated on another occassion. It is also well to note that, as
remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue
influence are mutually repugnant and exclude each other; their joining as grounds for opposing
probate shows absence of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his signature
to one page of a testament, due to the simultaneous lifting of two pages in the course of signing,
is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is
assured not only the fact that the testatrix and two other witnesses did sign the defective page,
but also by its bearing the coincident imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses. The law should not be so strictly
and literally interpreted as to penalize the testatrix on account of the inadvertence of a single
witness over whose conduct she had no control, where the purpose of the law to guarantee the
identity of the testament and its component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record attests to the full observance of the
statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or
the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight
is shown by his own testimony as well as by the duplicate copy of the will, which bears a
complete set of signatures in every page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise evidence that no one was aware of the
defect at the time.
This would not be the first time that this Court departs from a strict and literal application of
the statutory requirements, where the purposes of the law are otherwise satisfied. Thus,
despite the literal tenor of the law, this Court has held that a testament, with the only page
signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the
correlative lettering of the pages of a will, the failure to make the first page either by letters or
numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the
Court's policy to require satisfaction of the legal requirements in order to guard against fraud
and bid faith but without undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the
duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that oppositors-appellants run here
into a dilemma; if the original is defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and
can be probated, then the objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the
omission of one signature in the third page of the original testament was inadvertent and not
intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication
does not affect the jurisdiction of the probate court, already conferred by the original
publication of the petition for probate. The amended petition did not substantially alter the one
first filed, but merely supplemented it by disclosing the existence of the duplicate, and no
showing is made that new interests were involved (the contents of Exhibit A and A-1 are
admittedly identical); and appellants were duly notified of the proposed amendment. It is
nowhere proved or claimed that the amendment deprived the appellants of any substantial
right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against
appellants.
G.R. No. L-5826 April 29, 1953
Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
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 appellant in 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.
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-
appellee,
vs.
DOÑA MATEA LEDESMA, oppositor-appellant.
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.
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, Petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of
Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, Respondents.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the
probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N.
Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"),
alleging the will was executed through fraud, deceit, misrepresentation and undue influence;
that the said instrument was execute without the testator having been fully informed of the
content thereof, particularly as to what properties he was disposing and that the supposed last
will and testament was not executed in accordance with law. Notwithstanding her objection,
the Court allowed the probate of the said last will and testament Hence this appeal by certiorari
which was given due course.
The only question presented for determination, on which the decision of the case hinges, is
whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in
accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring
at least three credible witnesses to attest and subscribe to the will, and the second requiring
the testator and the witnesses to acknowledge the will before a notary public. law library
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been acknowledged. Reduced to simpler
terms, the question was attested and subscribed by at least three credible witnesses in the
presence of the testator and of each other, considering that the three attesting witnesses must
appear before the notary public to acknowledge the same. As the third witness is the notary
public himself, petitioner argues that the result is that only two witnesses appeared before the
notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel
B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court,
maintains that there is substantial compliance with the legal requirement of having at least
three attesting witnesses even if the notary public acted as one of them, bolstering up his stand
with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the purely technical
reason that one of the witnesses required by law signed as certifying to an acknowledgment of
the testator's signature under oath rather than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that
of the appellant that the last will and testament in question was not executed in accordance
with law. The notary public before whom the will was acknowledged cannot be considered as
the third instrumental witness since he cannot acknowledge before himself his having signed
the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro
v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in
front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the
English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p.
252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness
were the notary public himself, he would have to avow assent, or admit his having signed the
will in front of himself. This cannot be done because he cannot split his personality into two so
that one will appear before the other to acknowledge his participation in the making of the will.
To permit such a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or
immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the
notary public were one of the attesting instrumental witnesses. For them he would be
interested sustaining the validity of the will as it directly involves him and the validity of his
own act. It would place him in inconsistent position and the very purpose of acknowledgment,
which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted. law l
Admittedly, there are American precedents holding that notary public may, in addition, act as a
witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G.
4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely
as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122
So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue herein because the notaries public and witnesses
referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and
not as acknowledging witnesses. He the notary public acted not only as attesting witness but
also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which
reads:
ART. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will or file another
with the office of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which would
be in contravention of the provisions of Article 80 be requiring at least three credible witnesses
to act as such and of Article 806 which requires that the testator and the required number of
witnesses must appear before the notary public to acknowledge the will. The result would be,
as has been said, that only two witnesses appeared before the notary public for or that purpose.
In the circumstances, the law would not be duly in observed. library
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of
the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set
aside.
[G.R. No. L-26615. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS
 AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the
Court of First Instance of Manila, Branch and CONSUELO GONZALES VDA. DE
PRECILLA, Respondents.
[G.R. No. L-26884. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS
AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the
Court of First Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA, and
CONSUELO GONZALES VDA. DE PRECILLA, Respondents.
[G.R. No. L-27200. April 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA.
DE PRECILLA, petitioner administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA
NARCISO, VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION,
NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL
ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, Oppositors-Appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent
Consuelo S. Gonzales Vda. de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon C.
Aquino for petitioner administratrix.
Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, Et. Al.
Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de
Praga.
Salonga, Ordoñez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, Et.
Al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants
Natividad del Rosario Sarmiento, Et. Al.
SYLLABUS
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE;
TESTATRIX’S DEFECTIVE EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF LATER
WILL.— The declarations in court of the opthalmologist as to the condition of the testatrix’s
eyesight fully establish the fact that her vision remained mainly for viewing distant objects and
not for reading print; that she was, at the time of the execution of the second will on December
29, 1960, incapable of reading and could not have read the provisions of the will supposedly
signed by her.
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT BAR.—
Upon its face, the testamentary provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, apparently to save on space. Plainly, the
testament was not prepared with any regard for the defective vision of Dña. Gliceria, the
typographical errors remained uncorrected thereby indicating that the execution thereof must
have been characterized by haste. It is difficult to understand that so important a document
containing the final disposition of one’s worldly possessions should be embodied in an informal
and untidy written instrument; or that the glaring spelling errors should have escaped her
notice if she had actually retained the ability to read the purported will and had done so.
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL CODE
— READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE.— The rationale behind
the requirement of reading the will to the testator if he is blind or incapable of reading the will
himself is to make the provisions thereof known to him, so that he may be able to object if they
are not in accordance with his wishes.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.— Where as in the 1960
will there is nothing in the record to show that the requisites of Art. 808 of the Civil Code of the
Philippines that "if the testator is blind, the will shall be read to him twice," have not been
complied with, the said 1960 will suffer from infirmity that affects its due execution.
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRATORS;
GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE
MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE THE TRUST; CASE AT BAR.—
Considering that the alleged deed of sale was executed when Gliceria del Rosario was already
practically blind and that the consideration given seems unconscionably small for the
properties, there was likelihood that a case for annulment might be filed against the estate or
heirs of Alfonso Precilla. And the administratrix being the widow and heir of the alleged
transferee, cannot be expected to sue herself in an action to recover property that may turn out
to belong to the estate. This, plus her conduct in securing new copies of the owner’s duplicate of
titles without the court’s knowledge and authority and having the contract bind the land
through issuance of new titles in her husband’s name, cannot but expose her to the charge of
unfitness or unsuitability to discharge the trust, justifying her removal from the administration
of the estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR THE
RIGHT OF POSSESSION OF REAL PROPERTY." — On the matter of lis pendens, the provisions of
the Rules of Court are clear: notice of the pendency of an action may be recorded in the office of
the register of deeds of the province in which the property is situated, if the action affects "the
title or the right of possession of (such) real property."cralaw virtua1aw library
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The issue in controversy here is simply
the fitness or unfitness of said special administratrix to continue holding the trust, it does not
involve or affect at all the title to, or possession of, the properties covered by TCT Nos. 81735,
81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can
properly be annotated in the record of the titles to the properties.
DECISION
REYES, J.B.L., J.:
G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp.
Proc. No. 62618) admitting to probate the alleged last will an, testament of the late Gliceria
Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate
petitions for mandamus filed by certain alleged heirs of said decedent seeking (1) to compel the
probate court to remove Consuelo S. Gonzales-Precilla as special administratrix of the estate,
for conflict of interest, to appoint a new one in her stead; and (2) to order the Register of Deeds
of Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in
the name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to be properly
belonging to the estate of the deceased Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as
follows:chanrob1es virtual 1aw library
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving
no descendents, ascendants, brother or sister. At the time of her death, she was said to be 90
years old more or less, and possessed of an estate consisting mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased,
petitioned the Court of First Instance of Manila for probate of the alleged last will and
testament of Gliceria A. del Rosario, executed on 29 December 1960, and for her appointment
as special administratrix of the latter’s estate, said to be valued at about P100,000.00, pending
the appointment of a regular administrator thereof.
The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V.
Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956; (2)
Jaime Rosario and children, relatives and legatees in both the 1956 and 1960 wills; Antonio
Jesus de Praga and Marta Natividad de Jesus, wards of the deceased and legatees in the 1956
and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad
del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa
and Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio, — the latter five
groups of persons all claiming to be relatives of Doña Gliceria within the fifth civil degree. The
oppositions invariably charged that the instrument executed in 1960 was not intended by the
deceased to be her true will; that the signatures of the deceased appearing in the will was
procured through undue and improper pressure and influence the part of the beneficiaries
and/or other persons; that the testatrix did not know the object of her bounty; that the
instrument itself reveals irregularities in its execution, and that the formalities required by law
for such execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined
the group of Dr. Jaime Rosario in registering opposition to the appointment of petitioner
Consuelo S. Gonzales Vda. de Precilla as special administratrix, on the ground that the latter
possesses interest adverse to the estate. After the parties were duly heard, the probate court, in
its order of 2 October 1965, granted petitioner’s prayer and appointed her special
administratrix of the estate upon a bond for P30,000.00. The order was premised on the fact
the petitioner was managing the properties belonging to the estate even during the lifetime of
the deceased, and to appoint another person as administrator or co administrator at that stage
of the proceeding would only result in further confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an urgent
motion to require the Hongkong & Shanghai Bank to report all withdrawals made against the
funds of the deceased after 2 September 1965. The court denied this motion on 22 October
1965 for being premature, it being unaware that such deposit in the name of the deceased
existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio
Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the
immediate removal of the special administratrix. It was their claim that the special
administratrix and her deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario
to execute a simulated and fraudulent deed of absolute sale dated 10 January 1961 allegedly
conveying unto said spouses for the paltry sum of P30,000.00 ownership of 3 parcels of land
and the improvements thereon located on Quiapo and San Nicolas, Manila, with a total assessed
value of P334,050.00. Oppositors contended that since it is the duty of the administrator to
protect and conserve the properties of the estate, and it may become necessary that, an action
for the annulment of the deed of sale land for recovery of the aforementioned parcels of land be
filed against the special administratrix, as wife and heir of Alfonso Precilla, the removal of the
said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an order directing the Special
Administratrix to deposit with the Clerk of Court all certificates of title belonging to the estate.
It was alleged that on 22 October 1965, or after her appointment, petitioner Consuelo Gonzales
Vda. de Precilla, in her capacity as special administratrix of the estate of the deceased Gliceria
A. del Rosario, filed with Branch IV of the Court of First Instance of Manila a motion for the
issuance of new copies of the owner’s duplicates of certain certificates of title in the name of
Gliceria del Rosario, supposedly needed by her "in the preparation of the inventory" of the
properties constituting the estate. The motion having been granted, new copies of the owner’s
duplicates of certificates appearing the name of Gliceria del Rosario (among which were TCT
Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8 December 1965,
according to the oppositors, the same special administratrix presented to the Register of Deeds
the deed of sale involving properties covered by TCT Nos. 66201, 66202 and 66204 supposedly
executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in
consequence, said certificates of title were cancelled and new certificates (Nos. 81735, 81736
and 81737) were issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y
Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A.
del Rosario (Exhibit "D"). In declaring the due execution of the will, the probate court took note
that no evidence had been presented to establish that the testatrix was not of sound mind when
the will was executed; that the fact that she had prepared an earlier will did not, prevent her
from executing another one thereafter; that the fact that the 1956 will consisted of 12 pages
whereas the 1960 testament was contained in one page does not render the latter invalid; that,
the erasures and alterations in the instrument were insignificant to warrant rejection; that the
inconsistencies in the testimonies of the instrumental witnesses which were noted by the
oppositors are even indicative of their truthfulness. The probate court, also considering that
petitioner had already shown capacity to administer the properties of the estate and that from
the provisions of the will she stands as the person most concerned and interested therein,
appointed said petitioner regular administratrix with a bond for P50,000.00. From this order
all the oppositors appealed, the case being docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors’ motion of 14
December 1965 for the removal of the then special administratrix, as
follows:jgc:chanrobles.com.ph
"It would seem that the main purpose of the motion to remove the special administratrix and to
appoint another one in her stead, is in order that an action may be filed against the special
administratrix for the annulment of the deed of sale executed by the decedent on January 10,
1961. Under existing documents, the properties sold pursuant to the said deed of absolute sale
no longer forms part of the estate. The alleged conflict of interest is accordingly not between
different claimants of the same estate. If it is desired by the movants that an action be filed by
them to annul the aforesaid deed absolute sale, it is not necessary that the special
administratrix be removed and that another one be appointed to file such action. Such a course
of action would only produce confusion and difficulties in the settlement of the estate. The
movants may file the aforesaid proceedings, preferably in an independent action, to secure the
nullity of the deed of absolute even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the
name of the decedent, the same was also denied, for the reason that if the movants were
referring to the old titles, they could no longer be produced, and if they meant the new
duplicate copies thereof that were issued at the instance of the special administratrix, there
would be no necessity therefor, because they were already cancelled and other certificates
were issued in the name of Alfonso Precilla. This order precipitated the oppositors’ filing in this
Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge
Conrado M. Vasquez, Et. Al.), which was given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, the oppositors
requested the Register of Deeds of Manila to annotate a notice of lis pendens in the records of
TCT Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla. And when said official
refused to do so, they applied to the probate court (in Sp. Proc. No. 62618) for an order to
compel the Register of Deeds to annotate a lis pendens notice in the aforementioned titles
contending that the matter of removal and appointment of the administratrix, involving TCT
Nos. 81735, 81736, and 81737, was already before the Supreme Court. Upon denial of this
motion on 12 November 1966, oppositors filed another mandamus action, this time against the
probate court and the Register of Deeds. The case was docketed and given due course in this
Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of the order
allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del
Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and
written in Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera,
Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose Ayala; and
another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by
Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before
notary public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez
and Rosales uniformly declared that they were individually requested by Alfonso Precilla (the
late husband of petitioner special administratrix) to witness the execution of the last will of
Doña Gliceria A. del Rosario; that they arrived at the house of the old lady at No. 2074
Azcarraga, Manila, one after the other, in the afternoon of 29 December 1960; that the testatrix
at the time was apparently of clear and sound mind, although she was being aided by Precilla
when she walked; 3 that the will, which was already prepared, was first read "silently" by the
testatrix herself before she signed it; 4 that he three witnesses thereafter signed the will in the
presence of the testatrix and the notary public and of one another. There is also testimony that
after the testatrix and the witnesses to the will acknowledged the instrument to be their
voluntary act and deed, the notary public asked for their respective residence certificates which
were handed to him by Alfonso Precilla, clipped together; 5 that after comparing them with the
numbers already written on the will, the notary public filled in the blanks in the instrument
with the date, 29 January 1960, before he affixed his signature and seal thereto. 6 They also
testified that on that occasion no pressure or influence has been exerted by any person upon
the testatrix to execute the will.
Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960
will are evident from the records. The will appeared to have been prepared by one who is not
conversant with the spelling of Tagalog words, and it has been shown that Alfonso Precilla is a
Cebuano who speaks Tagalog with a Visayan accent. 7 The witnesses to the will, two of whom
are fellow Visayans, 8 admitted their relationship or closeness to Precilla. 9 It was Precilla who
instructed them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an
important document, 10 and who took their residence certificates from them a few days before
the will was signed. 11 Precilla had met the notary public and witnesses Rosales and Lopez at
the door of the residence of the old woman; he ushered them to the room at the second floor
where the signing of the document took place; 12 then he fetched witness Decena from the
latter’s haberdashery shop a few doors away and brought him to, the house the testatrix. 13
And when the will was actually executed Precilla was present. 14
The oppositors-appellants in the present case, however, challenging the correctness of the
probate court’s ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario
was so poor and defective that she could not have read the provisions of the will, contrary to
the testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and
illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified,
among other things, that when Doña Gliceria del Rosario saw him for consultation on 11 March
1960 he found her left eye to have cataract (opaque lens), 15 and that it was "above normal in
pressure", denoting a possible glaucoma, a disease that leads to blindness 16 As to the
conditions of her right eye, Dr. Tamesis declared:jgc:chanrobles.com.ph
"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C
and 3-D from which you could inform the court as to the condition of the vision of the patient as
to the right eve?
"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself
which showed that the right eye with my prescription of glasses had a vision of 2 over 60
(20/60) and for the left eye with her correction 20 over 300 (20/300).
"Q In layman’s language, Doctor, what is the significance of that notation that the right had a
degree of 20 over 60 (20/60)?
"A It meant that eye at least would be able to recognize objects or persons at a minimum
distance of twenty feet.
"Q But would that grade enable the patient to read print?
"A Apparently that is only a record for distance vision, for distance sight, not for near."cralaw
virtua1aw library
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated of the left eye of the decedent at the
Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of the glasses her vision was
only "counting fingers," 17 at five feet. The cross-examination of the doctor further elicited the
following responses:jgc:chanrobles.com.ph
"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?
"A After her discharge from the hospital, she was coming to my clinic for further examination
and then sometime later glasses were prescribed.
x x x
"Q And the glasses prescribed by you enabled her to read, Doctor?
"A As far as my record is concerned, with the glasses for the left eye which I prescribed — the
eye which I operated — she could see only forms but not read. That is on the left eye.
"Q How about the right eye?

"A The same, although the vision on the right eye is even better than the left eye." (pages 34. 85.
t.s.n., hearing of 23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965
certifying that Gliceria del Rosario was provided with aphakic lenses and "had been under
medical supervision up to 1963 with apparently good vision", the doctor had this to
say:jgc:chanrobles.com.ph
"Q When yon said that she had apparently good vision you mean that she was able to read?
"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you,
this report was made on pure recollections and I recall she was using her glasses although I
recall also that we have to give her medicines to improve her vision, some medicines to
improve her identification some more.
x x x attend to kitchen tasks shortly prior to the alleged execution of the testament Exhibit "D", as
"Q What about the vision in the right eve, was that corrected by the glasses?
"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant objects."cralaw virtua1aw library
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has
first hand knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully
establish the fact that notwithstanding the operation and removal of the cataract in her left eye
and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly
for viewing distant objects and not for reading print. Thus, the conclusion is inescapable that
with the condition of her eyesight in August, 1960, and there is no evidence that it had
improved by 29 December 1960, Gliceria del Rosario was incapable f reading, and could not
have read the provisions of the will supposedly signed by her on 29 December 1960. It is worth
noting that the instrumental witnesses stated that she read the instrument "silently" (t.s.n.,
pages 164-165). which is a conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the appearance of the will,
Exhibit "D", acquires striking significance. Upon its face, the testamentary provisions, the
attestation clause and acknowledgment were crammed together into a single sheet of paper, to
much so that the words had to be written very close on the top, bottom and two sides of the
paper, leaving no margin whatsoever; the word "and" had to be written by the symbol" &",
apparently to save on space. Plainly, the testament was not prepared with any regard for the
defective vision of Doña Gliceria. Further, typographical errors like "HULINH" for "HULING"
(last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for "Instrumental",
and "acknowledged" for "acknowledge’’, remained uncorrected, thereby indicating that
execution thereof must have been characterized by haste. It is difficult to understand that so
important a document containing the final disposition of one’s worldly possessions should be
embodied in an informal and untidily written instrument; or that the glaring spelling errors
should have escaped her notice if she had actually retained the ability to read the purported
will and had done so. The record is thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D", and that its admission to
probate was erroneous and should be reversed.
That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and
appears from the photographs, Exhibits "E" to "E-1", in no way proves; that she was able to
read a closely typed page, since the acts shown do not require vision at close range. It must be
remembered that with the natural lenses removed, her eyes had lost the power of adjustment
to near vision, the substituted glass lenses being rigid and uncontrollable by her. Neither is the
signing of checks (Exhibits "G" to "G-3") by her indicative of ability to see at normal reading
distances. Writing or signing of one’s name, when sufficiently practiced, becomes automatic, so
that one need only to have a rough indication of the place where the signature is to be affixed in
order to be able to write it. Indeed, a close examination of the checks, amplified in the
photograph, Exhibit "O", et seq., reinforces the contention of oppositors that the alleged
testatrix could not see at normal reading distance: the signatures in the checks are written far
above the printed base, lines, and the names of the payees as well as the amounts written do
not appear to be in the handwriting of the alleged testatrix, being in a much firmer and more
fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was,
as appellant oppositors contend, not unlike a blind testator, and the due execution of her will
would have required observance of the provisions of Article 808 of the Civil Code.
"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged."cralaw virtua1aw library
The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), 18 is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with his
wishes. That the aim of the law is to insure that the dispositions of the will are properly
communicated to and understood by the handicapped testator, thus making them truly
reflective of his desire, is evidenced by the requirement that the will should be read to the
latter, not only once but twice, by two different persons, and that the witnesses have to act
within the range of his (the testator’s) other senses. 19
In connection with the will here in question, there is nothing in the records to show that the
above requisites have been complied with. Clearly, as already stated, the 1960 will sought to be
probated suffers from infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by
the probate court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as
special administratrix of the estate of the deceased Doña Gliceria (Petition, G.R. No. L-26615,
Annex "B").
The oppositors’ petition was based allegedly on the existence in the special administratrix of an
interest adverse to that of the estate. It was their contention that through fraud her husband
had caused the deceased Gliceria del Rosario to execute a deed of sale, dated 10 January 1961,
by virtue of which the latter purportedly conveyed unto said Alfonso D. Precilla, married to
Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and the improvements
thereon, assessed at P334,050.00, for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P",
Petition) reasoned out that since the properties were already sold no longer form part of the
estate. The conflict of interest would not be between the estate and third parties, but among the
different claimants of said properties, in which case, according to the court, the participation of
the special administratrix in the action for annulment that may be brought would not be
necessary.
The error in this line of reasoning lies in the fact that what was being questioned was precisely
the validity of the conveyance or sale of the properties. In short, if proper, the action for
annulment would have to be undertaken on behalf of the estate by the special administratrix,
affecting as it does the property or rights of the deceased. 20 For the rule is that only where
there is no special proceeding for the settlement of the estate of the deceased may the legal
heirs commence an action arising out of a right belonging to their ancestor. 21
There is no doubt that to settle the question of the due execution and validity of the deed of
sale, an ordinary and separate action would have to be instituted, the matter not falling within
the competence of the probate court. 22 Considering the facts then before it, i.e., the alleged
deed of sale having been executed by Gliceria del Rosario on 10 January 1961, when she was
already practically blind; and that the consideration of P30,000.00 seems to be unconscionably
small for properties with a total assessed value of P334,050.00, there was likelihood that a case
for annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And the
administratrix, being the widow and heir of the alleged transferee, cannot be expected to sue
herself in an action to recover property that may turn out to belong to the estate. 22 Not only
this, but the conduct of the special administratrix in securing new copies of the owner’s
duplicates of TCT Nos. 66201, 66202, and 66204, without the court’s knowledge or authority,
and on the pretext that she needed them in the preparation of the inventory of the estate, when
she must have already known by then that the properties covered therein were already
"conveyed" to her husband by the deceased, being the latter’s successor, and having the
contract bind the land through issuance of new titles in her husband’s name cannot but expose
her to the charge of unfitness or unsuitableness to discharge the trust, justifying her removal
from the administration of the estate.
With respect to the orders of the court a quo denying (1) the oppositors’ motion to require the
Hongkong and Shanghai Bank to report all withdrawals made against the funds of the deceased
after 2 September 1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos.
81735, 81736 and 81737, the same are to be affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not
have taken action on the complaint against the alleged withdrawals from the bank deposits of
the deceased, because as of that time the court had not yet been apprised that such deposits
exist. Furthermore, as explained by the special administratrix in her pleading of 30 October
1965, the withdrawals referred to by the oppositors could be those covered by checks issued in
the name of Gliceria del Rosario during her lifetime but cleared only after her death. That
explanation, which not only appears plausible but has not been rebutted by the petitioners-
oppositors, negates any charge of grave abuse in connection with the issuance of the order here
in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear:
notice of the pendency of an action may be recorded in the office of the register of deeds of the
province in which the property is situated, if the action affects "the title or the right of
possession of (such) real property." 23 In the case at bar, the pending action which oppositors
seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the mandamus
proceeding filed in this Court (G.R. No. L-26615). As previously discussed in this opinion,
however, that case is concerned merely with the correctness of the denial by the probate court
of the motion for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of
the estate of the late Gliceria del Rosario. In short, the issue in controversy there is simply the
fitness or unfitness of said special administratrix to continue holding the trust; it does not
involve or affect at all the title to, or possession of, the properties covered by said TCT Nos.
81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can
properly be annotated in the record of the titles to the properties.
FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged
1960 will of Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R. No. L-
26615 being meritorious, the appealed order is set aside and the court below is ordered to
remove the administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs
intestate of the deceased Doña Gliceria Avelino del Rosario as special administrator for the
purpose of instituting action on behalf of her estate to recover the properties allegedly sold by
her to the late Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido
Alvarado, CESAR ALVARADO, Petitioner, vs. HON. RAMON G. GAVIOLA, JR., Presiding
Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate
Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA.
RINO, Respondents.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division
of the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order
dated 27 June 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the
last will and testament 3 with codicil 4 of the late Brigido
Alvarado.chanroblesvirtualawlibrarychanrobles virtual law library
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling
Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a
previously executed holographic will at the time awaiting probate before Branch 4 of the
Regional Trial Court of sta. Cruz, Laguna. virtual law library
As testified to by the three instrumental witnesses, the notary public and by private respondent
who were present at the execution, the testator did not read the final draft of the will himself.
Instead, private respondent, as the lawyer who drafted the eight-paged document, read the
same aloud in the presence of the testator, the three instrumental witnesses and the notary
public. The latter four followed the reading with their own respective copies previously
furnished them. virtual law library
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December
1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and
revocatory clauses were unchanged. As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was private respondent who read it
aloud in his presence and in the presence of the three instrumental witnesses (same as those of
the notarial will) and the notary public who followed the reading using their own copies. law
library
A petition for the probate of the notarial will and codicil was filed upon the testator's death on
3 January 1979 by private respondent as executor with the Court of First Instance, now
Regional Trial Court, of Siniloan, Laguna. 5 Petitioner, in turn, filed an Opposition on the
following grounds: that the will sought to be probated was not executed and attested as
required by law; that the testator was insane or otherwise mentally incapacitated to make a
will at the time of its execution due to senility and old age; that the will was executed under
duress, or influence of fear and threats; that it was procured by undue and improper pressure
and influence on the part of the beneficiary who stands to get the lion's share of the testator's
estate; and lastly, that the signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the
Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made to
respondent court. The main thrust of the appeal was that the deceased was blind within the
meaning of the law at the time his "Huling Habilin" and the codicil attached thereto was
executed; that since the reading required by Art. 808 of the Civil Code was admittedly not
complied with, probate of the deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following
findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed;
that assuming his blindness, the reading requirement of Art. 808 was substantially complied
with when both documents were read aloud to the testator with each of the three instrumental
witnesses and the notary public following the reading with their respective copies of the
instruments. The appellate court then concluded that although Art. 808 was not followed to the
letter, there was substantial compliance since its purpose of making known to the testator the
contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art,
808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading
requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not
totally blind at the time the will and codicil were executed. However, his vision on both eyes
was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been
suffering from for several years and even prior to his first consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind"
testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the will and codicil
were executed, he can be so considered within the scope of the term as it is used in Art. 808. To
support his stand, petitioner presented before the trial court a medical certificate issued by Dr.
Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research
Institute), 6 the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa,
whose expertise was admitted by private respondent. 7 Dr. Roasa explained that although the
testator could visualize fingers at three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his first consultation. 8chanrobles
virtual law library
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the
testator could still read on the day the will and the codicil were executed but chose not to do so
because of "poor eyesight." 9 Since the testator was still capable of reading at that time, the
court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of reading at
the time his will and codicil were prepared, the fact remains and this was testified to by his
witnesses, that Brigido did not do so because of his "poor," 10 "defective," 11 or
"blurred" 12 vision making it necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the
term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof
known to him, so that he may be able to object if they are not in accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those
who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido
Alvarado was incapable of reading the final drafts of his will and codicil on the separate
occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no
other course for us but to conclude that Brigido Alvarado comes within the scope of the term
"blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of
ascertaining whether or not the lawyer who drafted the will and codicil did so comfortably with
his instructions. Hence, to consider his will as validly executed and entitled to probate, it is
essential that we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice;
once, by one of the instrumental witnesses and, again, by the notary public before whom the
will was acknowledged. The purpose is to make known to the incapacitated testator the
contents of the document before signing and to give him an opportunity to object if anything is
contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will
and the five-paged codicil who read the same aloud to the testator, and read them only once,
not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the single
reading suffices for purposes of the law. On the other hand, petitioner maintains that the only
valid compliance or compliance to the letter and since it is admitted that neither the notary
public nor an instrumental witness read the contents of the will and codicil to Brigido, probate
of the latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where
the purpose of the law has been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of fraud and trickery but
are never intended to be so rigid and inflexible as to destroy the testamentary
privilege. 14chanrobles virtual law library
In the case at bar, private respondent read the testator's will and codicil aloud in the presence
of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent
thereto, the testator affirmed, upon being asked, that the contents read corresponded with his
instructions. Only then did the signing and acknowledgement take place. There is no evidence,
and petitioner does not so allege, that the contents of the will and codicil were not sufficiently
made known and communicated to the testator. On the contrary, with respect to the "Huling
Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that
Brigido Alvarado already acknowledged that the will was drafted in accordance with his
expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's
residence precisely for the purpose of securing his conformity to the draft. 15chanrobles virtual
law library
Moreover, it was not only Atty. Rino who read the documents on WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals
5 November and 29 December 1977. The notary public and the three instrumental witnesses dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained
likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary pending, this decision is immediately executory. Costs against petitioner. law library
public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the
testator's physician) asked the testator whether the contents of the document were of his own SO ORDERED.
free will. Brigido answered in the affirmative. 16 With four persons following the reading word
for word with their own copies, it can be safely concluded that the testator was reasonably
assured that what was read to him (those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the typewritten documents. This is
especially true when we consider the fact that the three instrumental witnesses were persons
known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C.
Ranieses) being known to him since childhood. law library

The spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of
the will, the formal imperfections should be brushed aside when they do not affect its purpose
and which, when taken into account, may only defeat the testator's will. 17chanrobles virtual
law library G.R. No. 103554 May 28, 1993

As a final word to convince petitioner of the propriety of the trial court's Probate Order and its
affirmance by the Court of Appeals, we quote the following pronouncement in Abangan
v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid the substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on the subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So
when an interpretation already given assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the
testator's will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling
Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere
reason that a legal requirement intended for his protection was not followed strictly when such
compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make
known to the incapacitated testator the contents of the draft of his will, had already been
accomplished. To reiterate, substantial compliance suffices where the purpose has been served.
library
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA
CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and
ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate
of Mateo Caballero, respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the
issue of whether or not the attestation clause contained in the last will and testament of the late
Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of the
Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any children
and already in the twilight years of his life, executed a last will and testament at his residence in
Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and
Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad,
and a notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared
therein, among other things, that the testator was leaving by way of legacies and devises his
real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to
the testator.2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as
Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu
seeking the probate of his last will and testament. The probate court set the petition for hearing
on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one
reason to another. On May 29, 1980, the testator passed away before his petition could finally
be heard by the probate court.3 On February 25, 1981, Benoni Cabrera, on of the legatees
named in the will, sough his appointment as special administrator of the testator's estate, the
estimated value of which was P24,000.00, and he was so appointed by the probate court in its
order of March 6, 1981.4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a
second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed
as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of
Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding
consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of
Cebu and opposed thereat the probate of the Testator's will and the appointment of a special
administrator for his estate.5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of
the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June
21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special
Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will
had to be heard and resolved first. On March 26, 1984 the case was reraffled and eventually
assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings.6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as
oppositors and objected to the allowance of the testator's will on the ground that on the alleged
date of its execution, the testator was already in the poor state of health such that he could not
have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness
of the signature of the testator therein.7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty.
Filoteo Manigos, testified that the testator executed the will in question in their presence while
he was of sound and disposing mind and that, contrary to the assertions of the oppositors,
Mateo Caballero was in good health and was not unduly influenced in any way in the execution
of his will. Labuca also testified that he and the other witnesses attested and signed the will in
the presence of the testator and of each other. The other two attesting witnesses were not
presented in the probate hearing as the had died by then.8
On April 5, 1988, the probate court rendered a decision declaring the will in question as the last
will and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannot
overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano
Labuca who clearly told the Court that indeed Mateo Caballero executed the
Last Will and Testament now marked Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated the probate of his
Will during his lifetime when he caused the filing of the original petition now
marked Exhibit "D" clearly underscores the fact that this was indeed his Last
Will. At the start, counsel for the oppositors manifested that he would want
the signature of Mateo Caballero in Exhibit "C" examined by a handwriting
expert of the NBI but it would seem that despite their avowal and intention for
the examination of this signature of Mateo Caballero in Exhibit "C", nothing
came out of it because they abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance with all
the requisites of the law.9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court
of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and
void for the reason that its attestation clause is fatally defective since it fails to specifically state
that the instrumental witnesses to the will witnessed the testator signing the will in their
presence and that they also signed the will and all the pages thereof in the presence of the
testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial
court, and ruling that the attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may be
considered as having substantialy complied with the requirements of Art. 805
of the Civil Code. What appears in the attestation clause which the oppositors
claim to be defective is "we do certify that the testament was read by him and
 the attestator, Mateo Caballero, has published unto us the foregoing will
consisting of THREE PAGES, including the acknowledgment, each page
numbered correlatively in letters of the upper part of each page, as his Last
Will and Testament, and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin in the presence of
the said testator and in the presence of each and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by the testator
and by them (the witnesses) in the presence of all of them and of one another.
Or as the language of the law would have it that the testator signed the will "in
the presence of the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the testator and of
one another." If not completely or ideally perfect in accordance with the
wordings of Art. 805 but (sic) the phrase as formulated is in substantial
compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same
was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us.
Petitioners assert that respondent court has ruled upon said issue in a manner not in accord
with the law and settled jurisprudence on the matter and are now questioning once more, on
the same ground as that raised before respondent court, the validity of the attestation clause in
the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some
prefatory observations which we feel should be made in aid of the rationale for our resolution
of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after
his death. 13 Under the Civil Code, there are two kinds of wills which a testator may
execute.14 the first kind is the ordinary or attested will, the execution of which is governed by
Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation should state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction, in
the presence of the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the witness, it shall be
interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and
the attesting witness. 15 hence it is likewise known as notarial will. Where the attestator is deaf
or deaf-mute, Article 807 requires that he must personally read the will, if able to do so.
Otherwise, he should designate two persons who would read the will and communicate its
contents to him in a practicable manner. On the other hand, if the testator is blind, the will
should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the
notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is entirely
written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in both kinds of will is that they
should be in writing and must have been executed in a language or dialect known to the
testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be written in
a language or dialect known to the testator since it does not form part of the testamentary
disposition. Furthermore, the language used in the attestation clause likewise need not even be
known to the attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in
such a case, the attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses
certify that the instrument has been executed before them and to the manner of the execution
the same. 19 It is a separate memorandum or record of the facts surrounding the conduct of
execution and once signed by the witnesses, it gives affirmation to the fact that compliance with
the essential formalities required by law has been observed. 20 It is made for the purpose of
preserving in a permanent form a record of the facts that attended the execution of a particular
will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such
facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would result
in the invalidity of the will, 22 should state (1) the number of the pages used upon which the will
is written; (2) that the testator signed, or expressly caused another to sign, the will and every
page thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses
witnessed the signing by the testator of the will and all its pages, and that said witnesses also
signed the will and every page thereof in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or some of its pages
and to prevent any increase or decrease in the pages;23 whereas the subscription of the
signature of the testator and the attesting witnesses is made for the purpose of authentication
and identification, and thus indicates that the will is the very same instrument executed by the
testator and attested to by the witnesses.24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause.25 The attestation clause, therefore,
provide strong legal guaranties for the due execution of a will and to insure the authenticity
thereof.26 As it appertains only to the witnesses and not to the testator, it need be signed only
by them.27 Where it is left unsigned, it would result in the invalidation of the will as it would be
possible and easy to add the clause on a subsequent occasion in the absence of the testator and
its witnesses.28
In its report, the Code Commission commented on the reasons of the law for requiring the
formalities to be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the provisions on the
law on wills in this Project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the
formalities in the execution of wills. . . .29
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised
of three sheets all of which have been numbered correlatively, with the left margin of each page
thereof bearing the respective signatures of the testator and the three attesting witnesses. The
part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan
dialect and is signed at the foot thereof by the testator. The attestation clause in question, on
the other hand, is recited in the English language and is likewise signed at the end thereof by
the three attesting witnesses hereto.30 Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal
addresses appear on the Opposite of our respective names, we do hereby
certify that the Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each page numbered correlatively in
the letters on the upper part of each page, as his Last Will and Testament and
he has the same and every page thereof, on the spaces provided for his
signature and on the left hand margin, in the presence of the said testator and
in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and subscribe to
the will in the presence of the testator and of one another. "Attestation" and "subscription"
differ in meaning. Attestation is the act of senses, while subscription is the act of the hand. The
former is mental, the latter mechanical, and to attest a will is to know that it was published as
such, and to certify the facts required to constitute an actual and legal publication; but to
subscribe a paper published as a will is only to write on the same paper the names of the
witnesses, for the sole purpose of identification.31
In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are done which
the statute requires for the execution of a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the witnesses' names upon the same
paper for the purpose of identification of such paper as the will which was executed by the
testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the presence of
the testator and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the
express requirements of the third paragraph of Article 805 of the Civil Code for attestation
clauses, fails to specifically state the fact that the attesting witnesses the testator sign the will
and all its pages in their presence and that they, the witnesses, likewise signed the will and
every page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the
fact that while it recites that the testator indeed signed the will and all its pages in the presence
of the three attesting witnesses and states as well the number of pages that were used, the
same does not expressly state therein the circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin," obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of the testator and in the
presence of each and all of us" may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the words "he has signed the
same and every page thereof, on the spaces provided for his signature and on the left hand
margin." What is then clearly lacking, in the final logical analysis , is the statement that the
witnesses signed the will and every page thereof in the presence of the testator and of one
another.
It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought to
be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the form of the will or
the language used therein which would warrant the application of the substantial compliance
rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or
in the language used therein shall not render the will invalid if it is not proved
that the will was in fact executed and attested in substantial compliance with
all the requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at
the left margin of each page by the three attesting witnesses, it certainly cannot be conclusively
inferred therefrom that the said witness affixed their respective signatures in the presence of
the testator and of each other since, as petitioners correctly observed, the presence of said
signatures only establishes the fact that it was indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in the presence of the testator and of each other.
The execution of a will is supposed to be one act so that where the testator and the witnesses
sign on various days or occasions and in various combinations, the will cannot be stamped with
the imprimatur of effectivity.33
We believe that the further comment of former Justice J.B.L. Reyes34 regarding Article 809,
wherein he urged caution in the application of the substantial compliance rule therein, is
correct and should be applied in the case under consideration, as well as to future cases with
similar questions:
. . . The rule must be limited to disregarding those defects that can be supplied
by an examination of the will itself: whether all the pages are consecutively
numbered; whether the signatures appear in each and every page; whether
the subscribing witnesses are three or the will was notarized. All theses are
facts that the will itself can reveal, and defects or even omissions concerning
them in the attestation clause can be safely disregarded. But the total number
of pages, and whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be with
respect to the form of the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that the will was really
executed and attested in compliance with Article 805. In this regard, however, the manner of
proving the due execution and attestation has been held to be limited to merely an examination
of the will itself without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact
that the attesting witnesses signed each and every page of the will in the presence of the
testator and of each other.35 In such a situation, the defect is not only in the form or language of
the attestation clause but the total absence of a specific element required by Article 805 to be
specifically stated in the attestation clause of a will. That is precisely the defect complained of
in the present case since there is no plausible way by which we can read into the questioned
attestation clause statement, or an implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and all of its pages and that said
instrumental witnesses also signed the will and every page thereof in the presence of the
testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on
by respondents since it presupposes that the defects in the attestation clause can be cured or
supplied by the text of the will or a consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the omitted textual requirements were
actually complied within the execution of the will. In other words, defects must be remedied by
intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting
witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of
the contents of the will yields no basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the testimonies of his witnesses alleging that
they saw the compliance with such requirements by the instrumental witnesses, oblivious of
the fact that he is thereby resorting to extrinsic evidence to prove the same and would
accordingly be doing by the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as
to which manner of interpretation should be followed in resolving issues centering on
compliance with the legal formalities required in the execution of wills. The formal
requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code of
Civil Procedure. Said section was later amended by Act No. 2645, but the provisions respecting
said formalities found in Act. No. 190 and the amendment thereto were practically reproduced
and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the
case of Abangan vs. Abangan,36 where it was held that the object of the solemnities surrounding
the execution of wills is to close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guarantee their truth and authenticity. Therefore, the laws on this
subject should be interpreted in such a way as to attain these primordial ends. Nonetheless, it
was also emphasized that one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will, hence when an interpretation
already given assures such ends, any other interpretation whatsoever that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the testator's last
will, must be disregarded. The subsequent cases of Avera vs. Garcia,37 Aldaba vs. Roque,38 Unson
vs. Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios, et al.,41 and Nayve vs. Mojal, et
al.42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities that
should be observed in the execution of wills are mandatory in nature and are to be strictly
construed was followed in the subsequent cases of In the Matter of the Estate of Saguinsin,43 In
re Will of Andrada,44 Uy Coque vs. Sioca,45 In re Estate of Neumark, 46 and Sano vs. Quintana.47
Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly
conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause
had failed to state that the witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator. The will in question was disallowed, with these reasons
therefor:
In support of their argument on the assignment of error above-mentioned,
appellants rely on a series of cases of this court beginning with (I)n the Matter
of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of
Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil.,
405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the
citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40
Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating
in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our
task is to contrast and, if possible, conciliate the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs.
Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause
which does not recite that the witnesses signed the will and each and every
page thereof on the left margin in the presence of the testator is defective, and
such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited,
but the case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was
held that the attestation clause must estate the fact that the testator and the
witnesses reciprocally saw the signing of the will, for such an act cannot be
proved by the mere exhibition of the will, if it is not stated therein. It was also
held that the fact that the testator and the witnesses signed each and every
page of the will can be proved also by the mere examination of the signatures
appearing on the document itself, and the omission to state such evident facts
does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they
admit inconsistency in doctrine. Yet here, unless aided impossible to reconcile
the Mojal and Quintana decisions. They are fundamentally at variance. If we
rely on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may
be mentioned. In the first place, the Mojal, decision was concurred in by only
four members of the court, less than a majority, with two strong dissenting
opinions; the Quintana decision was concurred in by seven members of the
court, a clear majority, with one formal dissent. In the second place, the Mojal
decision was promulgated in December, 1924, while the Quintana decision
was promulgated in December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the Quintana decision is
believed more nearly to conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The
law of the case is here found in section 61 of the Code of Civil Procedure as
amended by Act No. 2645, and in section 634 of the same Code, as unamended.
It is in part provided in section 61, as amended that "No will . . . shall be valid . .
. unless . . .." It is further provided in the same section that "The
attestation shall state the number of sheets or pages used, upon which the will
 is written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction, in
the presence of three witnesses, and the latter witnessed and signed the will
and all pages thereof in the presence of the testator and of each other." Codal
section 634 provides that "The will shall be disallowed in either of the
following case: 1. If not executed and attested as in this Act provided." The law
not alone carefully makes use of the imperative, but cautiously goes further
and makes use of the negative, to enforce legislative intention. It is not within
the province of the courts to disregard the legislative purpose so emphatically
and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and,
to the extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once
more appeared to revive the seeming diversity of views that was earlier threshed out therein.
The cases of Quinto vs. Morata,49 Rodriguez vs. Alcala,50 Enchevarria vs. Sarmiento,51 and Testate
Estate of Toray52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et
al.,53 Rey vs. Cartagena,54 De Ticson vs. De Gorostiza,55 Sebastian vs. Panganiban,56 Rodriguez vs.
Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59 Martir vs. Martir,60 Alcala vs. De Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the strict
interpretation rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
inclination towards a liberal construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern tendency to give a
liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of
the Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines
had previously upheld the strict compliance with the legal formalities and had
even said that the provisions of Section 618 of the Code of Civil Procedure, as
amended regarding the contents of the attestation clause were mandatory,
and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43
Phil. 405). These decisions necessarily restrained the freedom of the testator
in disposing of his property.
However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution of
wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa, G.R.
No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone
back to the original provisions of Section 618 of the Code of Civil Procedure
before its amendment by Act No. 2645 in the year 1916. To turn this attitude
into a legislative declaration and to attain the main objective of the proposed
Code in the liberalization of the manner of executing wills, article 829 of the
Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial
compliance with all the requirements of article 829."65
The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer any puzzle or
difficulty, nor does it open the door to serious consequences. The later decisions do tell us
when and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing details that should
appear in the will itself. They only permit a probe into the will, an exploration into its confines,
to ascertain its meaning or to determine the existence or absence of the requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire
results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by
an examination of the will itself, without the need of resorting to extrinsic evidence, will not be
fatal and, correspondingly, would not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court
is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith
DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and
Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of
the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the
settlement of the estate of the said decedent.
SO ORDERED. their deceased mother understood English, the language in which the holographic Will is
written, and that the date "FEB./61 " was the date when said Will was executed by their
mother.

G.R. No. L-38338 January 28, 1985 Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing
the purported holographic Will of Bibiana R. de Jesus because a it was not executed in
accordance with law, (b) it was executed through force, intimidation and/or under duress,
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA
undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or
ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
did not intend, nor could have intended the said Will to be her last Will and testament at the
vs.
time of its execution.
ANDRES R. DE JESUS, JR., respondent.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of
GUTIERREZ, JR., J.:
the holographic Will which he found to have been duly executed in accordance with law.

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco,
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the
Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the
alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required by
holographic Will of the deceased Bibiana Roxas de Jesus.
Article 810 of the Civil Code. She contends that the law requires that the Will should contain the
day, month and year of its execution and that this should be strictly complied with.
The antecedent facts which led to the filing of this petition are undisputed.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding disallowed the probate of the holographic Will on the ground that the word "dated" has
No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana generally been held to include the month, day, and year. The dispositive portion of the order
Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana reads:
Roxas de Jesus.
WHEREFORE, the document purporting to be the holographic Will of Bibiana
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Roxas de Jesus, is hereby disallowed for not having been executed as required
Administration had been granted to the petitioner, he delivered to the lower court a document by the law. The order of August 24, 1973 is hereby set aside.
purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21,
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the
1973.
deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code
which reads:
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24
ART. 810. A person may execute a holographic will which must be entirely
thereof, a letter-win addressed to her children and entirely written and signed in the
written, dated, and signed by the hand of the testator himself. It is subject to
handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and
no other form, and may be made in or out of the Philippines, and need not be
states: "This is my win which I want to be respected although it is not written by a lawyer. ...
witnessed.

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the
and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the
Old Civil Code require the testator to state in his holographic Win the "year, month, and day of
holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the
its execution," the present Civil Code omitted the phrase Año mes y dia and simply requires
handwriting of their mother and positively Identified her signature. They further testified that
that the holographic Will should be dated. The petitioners submit that the liberal construction
of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will is void
for non-compliance with Article 810 of the New Civil Code in that the date must contain the
year, month, and day of its execution. The respondent contends that Article 810 of the Civil
Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana
Code whose Supreme Courts had consistently ruled that the required date includes the year,
month, and day, and that if any of these is wanting, the holographic Will is invalid. The
respondent further contends that the petitioner cannot plead liberal construction of Article 810
of the Civil Code because statutes prescribing the formalities to be observed in the execution of
holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of the
statutory requirements regarding the due execution of Wills. We should not overlook the
liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case
of doubt is to prevent intestacy —
The underlying and fundamental objectives permeating the provisions of the
law on wigs in this Project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficien safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.
This objective is in accord with the modem tendency with respect to the
formalities in the execution of wills. (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327)
he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed in his last
will and testament on the ground that any disposition made by the testator is
better than that which the law can make. For this reason, intestate succession
is nothing more than a disposition based upon the presumed will of the
decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard
against fraud and bad faith but without undue or unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad faith and fraud in the
exercise thereof is obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil.
282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the wilt and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by
such requisite is actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been expounded by this
Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments
and to guaranty their truth and authenticity. ...
In particular, a complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on the day on
which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this
case.
We have carefully reviewed the records of this case and found no evidence of bad faith and
fraud in its execution nor was there any substitution of Wins and Testaments. There is no
question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written,
dated, and signed by the testatrix herself and in a language known to her. There is also no
question as to its genuineness and due execution. All the children of the testatrix agree on the
genuineness of the holographic Will of their mother and that she had the testamentary capacity
at the time of the execution of said Will. The objection interposed by the oppositor-respondent
Luz Henson is that the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil
Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith,
undue influence and pressure and the authenticity of the Will is established and the only issue
is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance
with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the
principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET
ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana
Roxas de Jesus is reinstated.
SO ORDERED.
G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.
SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-
appellees.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of one Melecio
Labrador is dated, as provided for in Article 8102 of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in
the Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of
land designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the
following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria
and Jovita, all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica
Labrador and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as
Special Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his
heirs), and Gaudencio Labrador filed an opposition to the petition on the ground that the will
has been extinguished or revoked by implication of law, alleging therein that on September 30,
1971, that is, before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos,
testator Melecio executed a Deed of Absolute Sale, selling, transferring and conveying in favor
of oppositors Jesus and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652
had been cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said
parcel of land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for
the annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado
allegedly had already acquired by devise from their father Melecio Labrador under a
holographic will executed on March 17, 1968, the complaint for annulment docketed as Civil
Case No. 934-I, being premised on the fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial court rendered
a joint decision dated February 28, 1985, allowing the probate of the holographic will and
declaring null and void the Deed of Absolute sale. The court a quo had also directed the
respondents (the defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of
P5,000.00 representing the redemption price for the property paid by the plaintiff-petitioner
Sagrado with legal interest thereon from December 20, 1976, when it was paid to vendee a
retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988
modified said joint decision of the court a quo by denying the allowance of the probate of the
will for being undated and reversing the order of reimbursement. Petitioners' Motion for
Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution
of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE
OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and
II
 THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is quoted as
follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known
place as Tagale.
And this place that is given as the share to him, there is a measurement of more or less
one hectare, and the boundary at the South is the property and assignment share of
ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known
as the SEA as it is, and the boundary on the NORTH is assignment belonging to
CRISTOBAL LABRADOR, who likewise is also their brother. That because it is now the
time for me being now ninety three (93) years, then I feel it is the right time for me to
partition the fishponds which were and had been bought or acquired by us, meaning
with their two mothers, hence there shall be no differences among themselves, those
among brothers and sisters, for it is I myself their father who am making the
apportionment and delivering to each and everyone of them the said portion and
assignment so that there shall not be any cause of troubles or differences among the
brothers and sisters.
II — Second Page
And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the month
of March, 17th day, in the year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no other than MELECIO
LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this that should
be followed and complied with in order that any differences or troubles may be
forestalled and nothing will happen along these troubles among my children, and that
they will be in good relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut
trees and all others like the other kind of bamboo by name of Bayog, it is their right to
get if they so need, in order that there shall be nothing that anyone of them shall
complain against the other, and against anyone of the brothers and sisters.
III — THIRD PAGE
And that referring to the other places of property, where the said property is located,
the same being the fruits of our earnings of the two mothers of my children, there shall
be equal portion of each share among themselves, and or to be benefitted with all
those property, which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which I am
here hereof manifesting of the truth and of the fruits of our labor which their two
mothers, I am signing my signature below hereof, and that this is what should be
complied with, by all the brothers and sisters, the children of their two mothers —
JULIANA QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your father who
made this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated, although the
date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect compliance with Article
810.1âwphi1 It is worthy of note to quote the first paragraph of the second page of the
holographic will, viz:
And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the month
of March, 17th day, in the year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no other than MELECIO
LABRADOR, their father. (emphasis supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be placed in the will. The
only requirements are that the date be in the will itself and executed in the hand of the testator.
These requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator and his
beneficiaries entered into an agreement among themselves about "the partitioning and
assigning the respective assignments of the said fishpond," and was not the date of execution of
the holographic will; hence, the will is more of an "agreement" between the testator and the
beneficiaries thereof to the prejudice of other compulsory heirs like the respondents. This was
thus a failure to comply with Article 783 which defines a will as "an act whereby a person is
permitted, with the formalities prescribed by law, to control to a certain degree the disposition
of his estate, to take effect after his death."
Respondents are in error. The intention to show 17 March 1968 as the date of the execution of
the will is plain from the tenor of the succeeding words of the paragraph. As aptly put by
petitioner, the will was not an agreement but a unilateral act of Melecio Labrador who plainly
knew that what he was executing was a will. The act of partitioning and the declaration that
such partitioning as the testator's instruction or decision to be followed reveal that Melecio
Labrador was fully aware of the nature of the estate property to be disposed of and of the
character of the testamentary act as a means to control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000 representing the
redemption price as erroneous, respondent court's conclusion is incorrect. When private
respondents sold the property (fishpond) with right to repurchase to Navat for P5,000, they
were actually selling property belonging to another and which they had no authority to sell,
rendering such sale null and void. Petitioners, thus "redeemed" the property from Navat for
P5,000, to immediately regain possession of the property for its disposition in accordance with
the will. Petitioners therefore deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby
REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate.
The private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand
Pesos (P5,000.00).
SO ORDERED.
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court
of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the
determination of the quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on
September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known
to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for
probate of the holographic will, submitted the said holographic will (Exh. C) whereby
Maria Milagros Azaola was made the sole heir as against the nephew of deceased
Cesario Singson; that witness Francisco Azaola testified that he saw the holographic
will (Exh. C) one month, more or less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also that he recognized all the
signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix
and to reinforce said statement, witness presented the mortgage (Exh. E), the special
power of the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides
the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there
were further exhibited in court two residence certificates (Exhs. H and H-1) to show
the signatures of the testatrix, for comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the aforesaid documentary evidence is in
the handwriting of the testatrix as well as the signatures appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well as the signatures
appearing therein are the signatures of the testatrix; that said witness, in answer to a
question of his counsel admitted that the holographic will was handed to him by the
testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page
16 on the same transcript of the stenographic notes, when the same witness was asked
by counsel if he was familiar with the penmanship and handwriting of the deceased
Fortunata Vda. de Yance, he answered positively in the affirmative and when he was
asked again whether the penmanship referred to in the previous answer as appearing
in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely
say it is hers"; that it was also established in the proceedings that the assessed value of
the property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the petitioner and his
wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and
that the same was actually written either on the 5th or 6th day of August 1957 and not on
November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent
must present three witnesses who could declare that the will and the signature are in the
writing of the testatrix, the probate being contested; and because the lone witness presented by
the proponent "did not prove sufficiently that the body of the will was written in the
handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one witness
because the will's authenticity was not questioned; and second, that Article 811 does not
mandatorily require the production of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding paragraph, and
if the court deems it necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was
not required to produce more than one witness; but even if the genuineness of the holographic
will were contested, we are of the opinion that Article 811 of our present Civil Code can not be
interpreted as to require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate denied. Since no witness may
have been present at the execution of a holographic will, none being required by law (Art. 810,
new Civil Code), it becomes obvious that the existence of witness possessing the requisite
qualifications is a matter beyond the control of the proponent. For it is not merely a question of
finding and producing any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare (truthfully, of course, even if
the law does not so express) "that the will and the signature are in the handwriting of the
testator". There may be no available witness of the testator's hand; or even if so familiarized,
the witnesses may be unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why
the second paragraph of Article 811 prescribes that —
in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the
will is contested and only one if no contest is had) was derived from the rule established for
ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil.,
742). But it can not be ignored that the requirement can be considered mandatory only in the
case of ordinary testaments, precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will
is holographic, no witness need be present (Art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court
deem it necessary", which reveal that what the law deems essential is that the Court should be
convinced of the will's authenticity. Where the prescribed number of witnesses is produced
and the court is convinced by their testimony that the ill is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent witness is available,
or none of those produced is convincing, the Court may still, and in fact it should, resort to
handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for
the state is as much interested as the proponent that the true intention of the testator be
carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the
noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho precepto
induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del
testamento olografo, aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de proceder en
resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del
testamento olografo lo hace necesario para mayor garantia de todos los interes
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho
profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran
ocurrir al Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se
ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo estime
conveniente), haya habido o no testigos y dudaran o no estos respecto de los extremos
por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de
su significacion, para responder debidamente de las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no unfavourable
inference can be drawn from a party's failure to offer expert evidence, until and unless the
court expresses dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been called upon to
construe the import of said article, the interest of justice would be better served, in our opinion,
by giving the parties ample opportunity to adduce additional evidence, including expert
witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered
remanded to the Court of origin, with instructions to hold a new trial in conformity with this
opinion. But evidence already on record shall not be retaken. No costs.
[G.R. No. 123486. August 12, 1999]
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs. EVANGELINE R.
CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, Respondents.
DECISION
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 the will was
written voluntarily.
The assessed value of the decedents property, including all real and personal property was
about P400,000.00, at the time of her death.4cräläwvirtualibräry
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 the will after every
disposition is out of the ordinary. If the deceased was the one who executed the will, and was
not forced, the dates and the signature should appear at the bottom after the dispositions, as
regularly done and not after every disposition. And assuming that the holographic will is in the
handwriting of the deceased, it was procured by undue and improper pressure and influence
on the part of the beneficiaries, or through fraud and trickery.
Respondents presented six (6) witnesses and various documentary evidence. Petitioners
instead of presenting their evidence, filed a 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 produce and identify
the voters affidavit of the decedent. However, the voters affidavit was not produced for the
same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her
aunt, and that after the death of Matildes husband, the latter lived with her in her parents
house for eleven (11) years, from 1958 to 1969. During those eleven (11) years of close
association with the deceased, she acquired familiarity with her signature and handwriting as
she used to accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from
her various tenants of commercial buildings, and the deceased always issued receipts. In
addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of
the accounts, and carried personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de
Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely
written, dated and signed, by the deceased and that all the dispositions therein, the dates, and
the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he
was a practicing lawyer, and handled all the pleadings and documents signed by the deceased
in connection with the intestate proceedings of her late husband, as a result of which he is
familiar with the handwriting of the latter. He testified that the signature appearing in the
holographic will was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can
not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of
Environment and Natural Resources, Region 10. She testified that she processed the application
of the deceased for pasture permit and was familiar with the signature of the deceased, since
the deceased signed documents in her presence, when the latter was applying for pasture
permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the
deceased since birth, and was in fact adopted by the latter. That after a long period of time she
became familiar with the signature of the deceased. She testified that the signature appearing
in the holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as follows:
Instruction
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 Pinikitan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelrys shall be divided among:
1. Eufemia Patigas 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.
2. Josefina Salcedo Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:

3. Evangeline Calugay x x x even if the genuineness of the holographic will were contested, we are of the opinion
that Article 811 of our present civil code can not be interpreted as to require the compulsory
(Sgd)Matilde Vda de Ramonal 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
August 30, 1978 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;
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay 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
(Sgd) Matilde Vda de Ramonal are in the handwriting of the testator. There may be no available witness acquainted with the
testators hand; or even if so familiarized, the witness may be unwilling to give a positive
"August 30, 1978 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
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, that
Helen must continue with the Sta. Cruz, once I am no longer around.
in the absence of any competent witness referred to in the preceding paragraph, and if the
(Sgd) Matilde Vda de Ramonal court deems it necessary, expert testimony may be resorted to.

August 30, 1978 As can be seen, the law foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency.
6. Bury me where my husband Justo is ever buried.
It may be true that the rule of this article (requiring that three witnesses be presented if the
(Sgd) Matilde Vda de Ramonal
will is contested and only one if no contest is had) was derived from the rule established for
ordinary testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL
"August 30,1978 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
Gene and Manuel: 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
"Follow my instruction in order that I will rest peacefully. three witnesses must be deemed merely permissive if absurd results are to be avoided.

Mama 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
Matilde Vda de Ramonal convinced of the wills authenticity. Where the prescribed number of witnesses is produced and
the court is convinced by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent witness is available,
or none of those produced is convincing, the court may still, and in fact it should resort to
handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for
the state is as much interested as the proponent that the true intention of the testator be
carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of the
having the probate denied. No witness need be present in the execution of the holographic
will. And the rule requiring the production of three witnesses is merely permissive. What
the law deems essential is that the court is convinced of the authenticity of the will. Its duty is
to exhaust all available lines of inquiry, for the state is as much interested in the proponent that
the true intention of the testator be carried into effect. And because the law leaves it to the trial
court to decide if experts are still needed, no unfavorable inference can be drawn from a partys
failure to offer expert evidence, until and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other
witnesses definitely and in no uncertain terms testified that the handwriting and signature in
the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and
the handwriting and signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) 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 prove that the date, text, and signature on the holographic
will were 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.
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. 11cräläwvirtualibräry
Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims
to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased
and the evil to be prevented is the possibility that unscrupulous individuals who for their
benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to determine the true
intent of the deceased. An exhaustive and objective consideration of the evidence is imperative
to establish the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified explicitly that
they were familiar with the handwriting of the testator. In the case of Augusto Neri, clerk of
court, Court of First Instance, Misamis Oriental, he merely identified the record of Special
Proceedings No. 427 before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the
signature of the deceased in the voters affidavit, which was not even produced as it was no
longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at
Pinikitan, Cagayan de Oro City. Would you tell the court what was your 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
Q. Who sometime accompany her?
A. I sometimes accompany her 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
Q. In collecting rentals does she issue receipts? Ramonal?

A. Yes, sir.13 A. Posting records.

xxx Q. Aside from that?

Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one A. Carrying letters.
of the receipts which she issued to them?
Q. Letters of whom?
A. Yes, sir.
A. Matilde
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs.
Binanay? Q. To whom?

A. Matilde vda. De Ramonal. A. To her creditors.15

Q. Why do you say that that is a signature of Matilde vda. De Ramonal? xxx

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

A. Yes, sir. Q. Showing to you this exhibit S, there is that handwritten tugon, whose handwriting is
this?
Q. Why do you say so?
A. My aunt.
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.
Q. Why do you say this is the handwriting of your aunt?
Q. How is this record of accounts made? How is this reflected?
A. Because I am familiar with her signature.16
A. In handwritten.14
What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either
xxx 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 A. Just to seek advice.
was not found in the personal belongings of the deceased but was in the possession of Ms.
Binanay. She testified that: Q. Advice of what?

Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno A. About the will.18
vda de Ramonal left a will you said, yes?
In her testimony it was also evident that Ms. Binanay kept the fact about the will from
A. Yes, sir. 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.
Q. Who was in possession of that will? de Ramonal.

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

Q. Since when did you have the possession of the will? Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?

A. It was in my mothers possession. A. Yes, sir.

Q. So, it was not in your possession? 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. Sorry, yes.
A. Yes, sir.19
Q. And when did you come into possession since as you said this was originally in the
possession of your mother? xxx

A. 1985.17 Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are
retracings in the word Vda.?
xxx
A. Yes, a little. The letter L is continuous.
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? Q. And also in Matilde the letter L is continued to letter D?

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

Q. After taking that document you kept it with you? Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued
towards letter D.
A. I presented it to the fiscal.
A. Yes, sir.
Q. For what purpose?
Q. And there is a retracing in the word Vda.?
A. Yes, sir.20 A. During my stay I used to go with her to the church, to the market and then to her
transactions.
xxx
Q. What else? What services that you rendered?
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 A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
eight months from August 30,1978. Do you notice that the signature Matilde Vda de Ramonal is
beautifully written and legible? Q. What was your purpose of going to her lawyer?

A. Yes, sir the handwriting shows that she was very exhausted. A. I used to be her personal driver.

Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of
and she was agile. Now, you said she was exhausted? Matilde Vda de Ramonal?

A. In writing. A. Yes, sir.

Q. How did you know that she was exhausted when you were not present and you just tried to Q. How come that you acquired familiarity?
explain yourself out because of the apparent inconsistencies?
A. Because I lived with her since birth.22
A. That was I think. (sic)
xxx
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 Q. Now, I am showing to you Exhibit S which is captioned tugon dated Agosto 30, 1978 there is
the signature was written on a fluid movement. x x x And in fact , the name Eufemia R. Patigas a signature here below item No. 1, will you tell this court whose signature is this?
here refers to one of the petitioners?
A. Yes, sir, that is her signature.
A. Yes, sir.
Q. Why do you say that is her signature?
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. I am familiar with her signature.23

A. Yes, sir.21 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.
Evangeline Calugay declared that the holographic will was written, dated and signed in the
handwriting of the testator. She testified that:
The former lawyer of the deceased, Fiscal Waga, 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 Q. Do you know Matilde Vda de Ramonal?
Matilde Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am A. This one here that is the signature of Mrs. Matilde vda de Ramonal. 27
related to the husband by consanguinity.
xxx
Q. Can you tell the name of the husband?
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other
A. The late husband is Justo Ramonal.24 assistance wherein you were rendering professional service to the deceased Matilde Vda de
Ramonal?
xxx
A. I can not remember if I have assisted her in other matters but if there are documents to show
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have that I have assisted then I can recall.28
legitimate children?
xxx
A. As far as I know they have no legitimate children.25
Q. Now, I am showing to you exhibit S which is titled tugon, kindly go over this document, Fiscal
xxx Waga and tell the court whether you are familiar with the handwriting contained in that
document marked as exhibit S?
Q. You said after becoming a lawyer you practice your profession? Where?
A. I am not familiar with the handwriting.
A. Here in Cagayan de Oro City.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
A. I assisted her in terminating the partition, of properties.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, court whose signature is this?
Fiscal?
A. Well, that is similar to that signature appearing in the project of partition.
A. It is about the project partition to terminate the property, which was under the court
before.26 Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court
whose signature is that?
xxx
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
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 Q. Why do you say that?
word Matilde vda de Ramonal, whose signature is this?
A. Because there is a similarity in the way it is being written.
A. That is the signature of Matilde Vda de Ramonal.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
Q. Also in exhibit n-3, whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.29
xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
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,31 ruling 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 the holographic will was in the
handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered
remanded to the court of origin with instructions to allow petitioners to adduce evidence in
support of their opposition to the probate of the holographic will of the deceased Matilde Seo
Vda. de Ramonal.
No costs.
SO ORDERED.
G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.
GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of
Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang
aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamag-anakang sumusunod:
Vicente Esguerra, Sr. ............................................. 5 Bahagi
Fausto E. Gan ......................................................... 2 Bahagi
Rosario E. Gan ......................................................... 2 Bahagi
Filomena Alto .......................................................... 1 Bahagi
Beatriz Alto .............................................................. 1 Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking
ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa
ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa
bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At
kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang
matupad ang aking kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not
left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed.
Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by
the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario
Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if
her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of
Felicidad, who was then preparing for the bar examinations. The latter replied it could be done
without any witness, provided the document was entirely in her handwriting, signed and dated
by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it,
in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad
wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the
presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the
afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a
niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for
the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness,
she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours
later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason
of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso
Yap returned the purse to Felina, only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet,
opened it and read the will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent physicians,
Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed
to the United States wherein for several weeks she was treated for the disease; that thereafter
she felt well and after visiting interesting places, the couple returned to this country in August
1950. However, her ailment recurred, she suffered several attacks, the most serious of which
happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole
household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying
the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr.
Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her
head held high by her husband. Injections and oxygen were administered. Following the
doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her
personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs.
Felicidad Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the decedent wanted to keep
her will a secret, so that her husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the
absence of a showing that Felina was a confidant of the decedent it is hard to believe that the
latter would have allowed the former to see and read the will several times; (c) it is improbable
that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro
Olarte to read her will, when she precisely wanted its contents to remain a secret during her
lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband
she would carry it around, even to the hospital, in her purse which could for one reason or
another be opened by her husband; (e) if it is true that the husband demanded the purse from
Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it
without destroying the will, the theory of the petitioner being precisely that the will was
executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that
Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor
and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments,
or most of them, were presented in the motion to reconsider; but they failed to induce the
court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the
criticisms. We deem it unnecessary to go over the same matters, because in our opinion the
case should be decided not on the weakness of the opposition but on the strength of the
evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms.
The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form,
thereby repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person
may execute a holographic will which must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form and may be made in or out of the
Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act
190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator
and three credible witnesses in each and every page; such witnesses to attest to the number of
sheets used and to the fact that the testator signed in their presence and that they signed in the
presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and
fraud, to prevent substitution of wills, to guarantee their truth and authencity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the
testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40
Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the subscribing
witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three
must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil.,
742). From the testimony of such witnesses (and of other additional witnesses) the court may
form its opinion as to the genuineness and authenticity of the testament, and the circumstances
its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded,
since as stated, they need no witnesses; provided however, that they are "entirely written,
dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose,
regards the document itself as material proof of authenticity, and as its own safeguard, since it
could at any time, be demonstrated to be — or not to be — in the hands of the testator himself.
"In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least
one witness who knows the handwriting and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the testator. If the will is contested, at least
three such witnesses shall be required. In the absence of any such witnesses, (familiar with
decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted
to."
The witnesses so presented do not need to have seen the execution of the holographic will.
They may be mistaken in their opinion of the handwriting, or they may deliberately lie in
affirming it is in the testator's hand. However, the oppositor may present other witnesses who
also know the testator's handwriting, or some expert witnesses, who after comparing the will
with other writings or letters of the deceased, have come to the conclusion that such will has
not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such
contradictory testimony may use its own visual sense, and decide in the face of the document,
whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of authenticity3 — the testator's
handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare that it was in the handwriting of the
testator? How can the oppositor prove that such document was not in the testator's
handwriting? His witnesses who know testator's handwriting have not examined it. His experts
can not testify, because there is no way to compare the alleged testament with other documents
admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught
between the upper millstone of his lack of knowledge of the will or the form thereof, and the
nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be
honest and truthful; but they may have been shown a faked document, and having no interest
to check the authenticity thereof have taken no pains to examine and compare. Or they may be
perjurers boldly testifying, in the knowledge that none could convict them of perjury, because
no one could prove that they have not "been shown" a document which they believed was in the
handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as
to the handwriting could be tested by exhibiting to them other writings sufficiently similar to
those written by the deceased; but what witness or lawyer would not foresee such a move and
prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could
simply stick to his statement: he has seen and read a document which he believed was in the
deceased's handwriting. And the court and the oppositor would practically be at the mercy of
such witness (or witnesses) not only as to the execution, but also as to the contents of the will.
Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed
will by secondary — evidence the testimony of witnesses, in lieu of the original document. Yet
such Rules could not have contemplated holographic wills which could not then be validly
made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it
may be lost or stolen4 — an implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge,
(Art. 689) who shall subscribe it and require its identity to be established by the three
witnesses who depose that they have no reasonable doubt that the will was written by the
testator (Art. 691). And if the judge considers that the identity of the will has been proven he
shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692
bears the same implication, to a greater degree. It requires that the surviving spouse and the
legitimate ascendants and descendants be summoned so that they may make "any statement
they may desire to submit with respect to the authenticity of the will." As it is universally
admitted that the holographic will is usually done by the testator and by himself alone, to
prevent others from knowing either its execution or its contents, the above article 692 could
not have the idea of simply permitting such relatives to state whether they know of the will, but
whether in the face of the document itself they think the testator wrote it. Obviously, this they
can't do unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying
with the will if they think it authentic, or to oppose it, if they think it spurious.5 Such purpose is
frustrated when the document is not presented for their examination. If it be argued that such
choice is not essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and privilege to comply
with the will, if genuine, a right which they should not be denied by withholding inspection
thereof from them.
We find confirmation of these ideas--about exhibition of the document itself--in the decision of
the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a
document containing testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing the mutilation to the
opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of
the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it
shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del
articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera
estar escrito todo el y firmado por testador, con expression del año, mes y dia en que
se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta
la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos
esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en
que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en
dichas condiciones en el momento de ser presentado a la Autoridad competente, para
au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es
affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que
puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la
persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir
dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis
of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los
herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la
tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que
fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si
semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere
connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda
otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz,
1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and
the contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this
opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to
make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway,
decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence
presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of
authenticity is the handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the holographic will entails the
loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are
available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and
acts on the particular day, the likelihood that they would be called by the testator, their
intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they
are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not
least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and
read the forgery; and the latter, having no interest, could easily fall for it, and in court they
would in all good faith affirm its genuineness and authenticity. The will having been lost — the
forger may have purposely destroyed it in an "accident" — the oppositors have no way to
expose the trick and the error, because the document itself is not at hand. And considering that
the holographic will may consist of two or three pages, and only one of them need be signed, the
substitution of the unsigned pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature —
feasibility of forgery — would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses
would be testifying to a fact which they saw, namely the act of the testator of subscribing the
will; whereas in the case of a lost holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial
judge's disbelief. In addition to the dubious circumstances described in the appealed decision,
we find it hard to believe that the deceased should show her will precisely to relatives who had
received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into
amending her will to give them a share, or threaten to reveal its execution to her husband
Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from
her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not
lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the
will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will,
we think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77,
sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
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.
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.
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa
City, and GREGORIO K. KALAW, respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of
his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December
24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound
and disposing mind and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In
accordance with the rights of said Church, and that my executrix hereinafter named provide
and erect at the expose of my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole
heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in
substance, that the holographic Will contained alterations, corrections, and insertions without
the proper authentication by the full signature of the testatrix as required by Article 814 of the
Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will the testator must authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given effect and
probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in
part:
The document Exhibit "C" was submitted to the National Bureau of
Investigation for examination. The NBI reported that the handwriting, the
signature, the insertions and/or additions and the initial were made by one
 and the same person. Consequently, Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit
'C', should be admitted to probate although the alterations and/or insertions
or additions above-mentioned were not authenticated by the full signature of
the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends
that the oppositors are estopped to assert the provision of Art. 814 on the
ground that they themselves agreed thru their counsel to submit the
Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did
not agree, nor was it impliedly understood, that the oppositors would be in
estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit "C". Finding the insertions, alterations and/or additions
in Exhibit "C" not to be authenticated by the full signature of the testatrix
Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit
"C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the alterations
and/or insertions were the testatrix, the denial to probate of her holographic Will would be
contrary to her right of testamentary disposition. Reconsideration was denied in an Order,
dated November 2, 1973, on the ground that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2,
1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole
legal question of whether or not the original unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of authentication by the full signature of the
testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in
a holographic Will litem not been noted under his signature, ... the Will is not thereby
invalidated as a whole, but at most only as respects the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary when he said "la omision de la salvedad no
anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril
de 1895." 2
However, when as in this case, the holographic Will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but which
alteration did not carry the requisite of full authentication by the full signature of the testator,
the effect must be that the entire Will is voided or revoked for the simple reason that nothing
remains in the Will after that which could remain valid. To state that the Will as first written
should be given efficacy is to disregard the seeming change of mind of the testatrix. But that
change of mind can neither be given effect because she failed to authenticate it in the manner
required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves
but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and
alterations made by the testatrix herein, her real intention cannot be determined with
certitude. As Manresa had stated in his commentary on Article 688 of the Spanish Civil Code,
whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que
no declara la nulidad de un testamento olografo que contenga palabras
tachadas, enmendadas o entre renglones no salvadas por el testador bajo su
firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal
omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al
testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel que
determine las condiciones necesarias para la validez del testamento olografo,
ya porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva
del testamento, vinieran a anular este, y ya porque el precepto contenido en
dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art.
26 de la ley del Notariado que declara nulas las adiciones apostillas
entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre
que no se salven en la forma prevenida, paro no el documento que las
contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes de ortografia o de
purez escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar
saan de pala bras que no afecter4 alteren ni uarien de modo substancial la
express voluntad del testador manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que declara nulo un testamento
olografo por no estar salvada por el testador la enmienda del guarismo ultimo
del año en que fue extendido3 (Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
September 3, 1973, is hereby affirmed in toto. No costs.

SO ORDERED.