1. G.R. No.

L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner,

vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.

Francisco D. Rilloraza, Jr. for petitioners.

Angel A. Sison for private respondent.

GUERRERO, J.:

This is a petition for review of the decision of the Court of Appeals, First Division,1 promulgated on May
4, 1973 in CA G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal
dated December 15, 1964 and allowed the probate of the last will and testament of the deceased
Isabel Gabriel. *

It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the
Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will
alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner as
the principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without
issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the
age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private
respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased,
and that private respondent, with her husband and children, lived with the deceased at the latters
residence prior an- d up to the time of her death.

The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the
acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel
appear at the end of the will on page four and at the left margin of all the pages. The attestation clause,
which is found on page four, reads as follows:

PATUNAY NG MGA SAKSI

Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay
pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang
kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na
siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay
nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa
ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng
patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left hand
margin of each and every page), sa harap ng lahat at bawat isa sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng lahat
 at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat
at bawa't dahon ng testamentong ito.

At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia,
Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are
their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St.,
Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other
pages. The WW is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page
One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.

The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal
in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate;
that all her obligations, if any, be paid; that legacies in specified amounts be given to her sister,
Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and nieces,
Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and
Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed Santiago. To herein
private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal
na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named
as universal heir and executor, were bequeathed all properties and estate, real or personal already
acquired, or to be acquired, in her testatrix name, after satisfying the expenses, debts and legacies as
aforementioned.

The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document
purporting to be the will of the deceased on the following grounds:

1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required by law;

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

4. That the purported WW was procured through undue and improper pressure and
influence on the part of the principal beneficiary, and/or of some other person for her
benefit.

Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a
quo rendered judgment, the summary and dispositive portions of which read:

Passing in summary upon the grounds advanced by the oppositor, this Court finds:

1. That there is no iota of evidence to support the contentio that the purported will of
the deceased was procured through undue and improper pressure and influence on
the part of the petitioner, or of some other person for her benefit;

2. That there is insufficient evidence to sustain the contention that at the time of the
alleged execution of the purported will, the deceased lacked testamentary capacity
due to old age and sickness;

3. That sufficient and abundant evidence warrants conclusively the fact that the
purported will of the deceased was not executed and attested as required by law;
 4. That the evidence is likewise conclusive that the document presented for probate,
Exhibit 'F' is not the purported win allegedly dictated by the deceased, executed and
signed by her, and attested by her three attesting witnesses on April 15, 1961.

WHEREFORE, Exhibit "F", the document presented for probate as the last wig and
testament of the deceased Isabel Gabriel is here by DISALLOWED.

From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only
issue decided on appeal was whether or not the will in question was executed and attested as required
by law. The Court of Appeals, upon consideration of the evidence adduced by both parties, rendered
the decision now under review, holding that the will in question was signed and executed by the
deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses, Matilde
Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of
the deceased and of each other as required by law, hence allow ed probate.

Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such
motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their
respective Memoranda, 5and on August 28, 1973, respondent Court, Former Special First Division, by
Resolution 6 denied the motion for reconsideration stating that:

The oppositor-appellee contends that the preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel was not executed in accordance
with law because the same was signed on several occasions, that the testatrix did not
sign the will in the presence of all the instrumental witnesses did not sign the will in the
presence of each other.

The resolution of the factual issue raised in the motion for reconsideration hinges on
the appreciation of the evidence. We have carefully re-examined the oral and
documentary evidence of record, There is no reason to alter the findings of fact in the
decision of this Court sought to be set aside. 7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court
abused its discretion and/or acted without or in excess of its jurisdiction in reverssing the findings of
fact and conclusions of the trial court. The Court, after deliberating on the petition but without giving
due course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment
thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the issues
raised and the arguments adduced in the petition, as well as the Comment 8 of private respondent
thereon, We denied the petition by Resolution on November 26, 1973, 9 the question raised being
factual and for insufficient showing that the findings of fact by respondent Court were unsupported by
substantial evidence.

Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for
Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11 filed
on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We
resolved to give due course to the petition.

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

I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
attested as required by law when there was absolutely no proof that the three instrumental witnesses
were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and
execution of the win Exhibit "F", was unexpected and coincidental.

III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the names
and residence certificates of the witnesses as to enable him to type such data into the document
Exhibit "F".

IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.

V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel
Gabriel could have dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.

VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not
physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.

VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture
takings as proof that the win was improperly executed.

VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.

IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the
accepted and usual course of judicial proceedings, as to call for an exercise of the power of
supervision.

X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate
Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.

It will be noted from the above assignments of errors that the same are substantially factual in
character and content. Hence, at the very outset, We must again state the oft-repeated and well-
established rule that in this jurisdiction, the factual findings of the Court of Appeals are not reviewable,
the same being binding and conclusive on this Court. This rule has been stated and reiterated in a
long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737,
743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent cases
of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs.
Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA,
this Court said:

... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has
been well-settled that the jurisdiction of tills Court in cases brought to us from the Court of Appeals is
limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive.
More specifically, in a decision exactly a month later, this Court, speaking through the then Justice
Laurel, it was held that the same principle is applicable, even if the Court of Appeals was in
disagreement with the lower court as to the weight of the evidence with a consequent reversal of its
findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence
are not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be
disturbed by Us particularly because its premises are borne out by the record or based upon
substantial evidence and what is more, when such findings are correct. Assignments of errors involving
factual issues cannot be ventilated in a review of the decision of the Court of Appeals because only
legal questions may be raised. The Supreme Court is not at liberty to alter or modify the facts as set
forth in the decision of the Court of Appeals sought to be reversed. Where the findings of the Court of
Appeals are contrary to those of the trial court, a minute scrutiny by the Supreme Court is in order,
and resort to duly-proven evidence becomes necessary. The general rule We have thus stated above
is not without some recognized exceptions.

Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's
assignments of errors.

Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that
the document, Exhibit "F", was executed and attested as required by law when there was absolutely
no proof that the three instrumental witnesses were credible witnesses. She argues that the require.
ment in Article 806, Civil Code, that the witnesses must be credible is an absolute requirement which
must be complied with before an alleged last will and testament may be admitted to probate and that
to be a credible witness, there must be evidence on record that the witness has a good standing in his
community, or that he is honest and upright, or reputed to be trustworthy and reliable. According to
petitioner, unless the qualifications of the witness are first established, his testimony may not be
favorably considered. Petitioner contends that the term "credible" is not synonymous with "competent"
for a witness may be competent under Article 820 and 821 of the Civil Code and still not be credible
as required by Article 805 of the same Code. It is further urged that the term "credible" as used in the
Civil Code should receive the same settled and well- known meaning it has under the Naturalization
Law, the latter being a kindred legislation with the Civil Code provisions on wigs with respect to the
qualifications of witnesses.

We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from
being a witness to a win. These Articles state:

Art. 820. Any person of sound mind and of the age of eighteen years or more, and not
blind, deaf or dumb, and able to read and write, may be a witness to the execution of
a will mentioned in article 806 of this Code. "Art. 821. The following are disqualified
from being witnesses to a will:

(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a document, perjury or false
testimony.

Under the law, there is no mandatory requirement that the witness testify initially or at any time during
the trial as to his good standing in the community, his reputation for trustworthythiness and
reliableness, his honesty and uprightness in order that his testimony may be believed and accepted
by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced from his answers to
the questions propounded to him, that his age (18 years or more) is shown from his appearance,
testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and
that he is able to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first
be established in the record the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed
of the witness unless the contrary is proved otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code
should be given the same meaning it has under the Naturalization Law where the law is mandatory
that the petition for naturalization must be supported by two character witnesses who must prove their
good standing in the community, reputation for trustworthiness and reliableness, their honesty and
uprightness. The two witnesses in a petition for naturalization are character witnesses in that being
citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for
the period of time required by the Act and a person of good repute and morally irreproachable and
that said petitioner has in their opinion all the qualifications necessary to become a citizen of the
Philippines and is not in any way disqualified under the provisions of the Naturalization Law (Section
7, Commonwealth Act No. 473 as amended).

In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest
the execution of a will or testament and affirm the formalities attendant to said execution. And We
agree with the respondent that the rulings laid down in the cases cited by petitioner concerning
character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills
executed under the Civil Code of the Philippines.

In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification
of any of the said witnesses, much less has it been shown that anyone of them is below 18 years of
age, of unsound mind, deaf or dumb, or cannot read or write.

It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the 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, While the petitioner
submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to
his qualifications under the first Article and none of the disqualifications under the second Article,
whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes
that the term credible requires something more than just being competent and, therefore, a witness in
addition to being competent under Articles 820 and 821 must also be a credible witness under Article
805.

Petitioner cites American authorities that competency and credibility of a witness are not synonymous
terms and one may be a competent witness and yet not a credible one. She exacerbates that there is
no evidence on record to show that the instrumental witnesses are credible in themselves, that is, that
they are of good standing in the community since one was a family driver by profession and the second
the wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and
his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a
grandchild of the testatrix But the relation of employer and employee much less the humble or financial
position of a person do not disqualify him to be a competent testamentary witness. (Molo Pekson and
Perez Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March
18,1941, p. 788).

Private respondent maintains that the qualifications of the three or more credible witnesses mentioned
in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious
from that portion of Article 820 which says "may be Q witness to the execution of a will mentioned in
Article 805 of this Code," and cites authorities that the word "credible" insofar as witnesses to a will
are concerned simply means " competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the
Supreme Court held that "Granting that a will was duly executed and that it was in existence at the
time of, and not revoked before, the death of the testator, still the provisions of the lost wig must be
clearly and distinctly proved by at least two credible witnesses. 'Credible witnesses' mean competent
witnesses and not those who testify to facts from or upon hearsay. " emphasis supplied).

In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that
"Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of the
age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a
witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950,
under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a win,
does not disqualify one to be a witness to a will. The main qualification of a witness in the attestation
of wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness
must be credible, that is to say, his testimony may be entitled to credence. There is a long line of
authorities on this point, a few of which we may cite:

A 'credible witness is one who is not is not to testify by mental incapacity, crime, or
other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134
Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).

As construed by the common law, a 'credible witness' to a will means a 'competent

witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).

Expression 'credible witness' in relation to attestation of wins means 'competent

witness that is, one competent under the law to testify to fact of execution of will.
Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App.
60 S.W. 2nd 888, 889. (Ibid, p. 342)

The term 'credible', used in the statute of wills requiring that a will shall be attested by
two credible witnesses means competent; witnesses who, at the time of attesting the
will, are legally competent to testify, in a court of justice, to the facts attested by
subscribing the will, the competency being determined as of the date of the execution
of the will and not of the timr it is offered for probate, Smith vs. Goodell 101 N.E. 255,
256, 258 111. 145. (Ibid.)

Credible witnesses as used in the statute relating to wills, means competent witnesses
— that is, such persons as are not legally disqualified from testifying in courts of justice,
by reason of mental incapacity, interest, or the commission of crimes, or other cause
excluding them from testifying generally, or rendering them incompetent in respect of
the particular subject matter or in the particular suit. Hill vs. Chicago Title & Trust co
152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)

In the strict sense, the competency of a person to be an instrumental witness to a will is determined
by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends On the appreciation
of his testimony and arises from the belief and conclusion of the Court that said witness is telling the
truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005,
May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness is one thing, and it is
another to be a credible witness, so credible that the Court must accept what he says. Trial courts may
allow a person to testify as a witness upon a given matter because he is competent, but may thereafter
decide whether to believe or not to believe his testimony." In fine, We state the rule that the
instrumental witnesses in Order to be competent must be shown to have the qualifications under
Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony
to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be
first established on record that the witnesses have a good standing in the community or that they are
honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such
unless the contrary is established otherwise. In other words, the instrumental witnesses must be
competent and their testimonies must be credible before the court allows the probate of the will they
have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the witnesses were "credible witnesses that is,
that they have a good standing in the community and reputed to be trustworthy and reliable.

Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution of
the will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten
words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have
dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and the other
witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue importance
to the picture takings as proof that the will was improperly executed, and in holding that the grave
contradictions, evasions and misrepresentations of the witnesses (subscribing and notary) presented
by the petitioner had been explained away.

Since the above errors are factual We must repeat what We have previously laid down that the findings
of fact of the appellate court are binding and controlling which We cannot review, subject to certain
exceptions which We win consider and discuss hereinafter. We are convinced that the appellate
court's findings are sufficiently justified and supported by the evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing all the
witnesses without previous appointment for the preparation and execution of the win and that it was
coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of Appeals
that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on
April 15, 1961 was unexpected as there was no prior appointment with him, but he explained that he
was available for any business transaction on that day and that Isabel Gabriel had earlier requested
him to help her prepare her will. The finding of the appellate court is amply based on the testimony of
Celso Gimpaya that he was not only informed on the morning of the day that he witnessed the will but
that it was the third time when Isabel Gabriel told him that he was going to witness the making of her
will, as well as the testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya to
proceed to Isabel Gabriel's house which was nearby and from said house, they left in a car to the
lawyer's office, which testimonies are recited in the respondent Court's decision.

The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria
Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's
residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria
Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961.
The respondent Court correctly observed that there was nothing surprising in these facts and that the
securing of these residence certificates two days and one day, respectively, before the execution of
the will on April 15, 1961, far from showing an amazing coincidence, reveals that the spouses were
earlier notified that they would be witnesses to the execution of Isabel Gabriel's will.

We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso
was planned by the deceased, which conclusion was correctly drawn from the testimony of the
Gimpaya spouses that they started from the Navotas residence of the deceased with a photographer
and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife, Quezon
City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed by a place
where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they
proceeded to Atty. Cipriano Paraiso's office.

It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the will
was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her
will and that he told her that if she really wanted to execute her will, she should bring with her at least
the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso) wanted a
medical certificate from a physician notwithstanding the fact that he believed her to be of sound and
disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear
that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria
Gimpaya including the photographer in the law office of Atty. Paraiso was not coincidental as their
gathering was pre-arranged by Isabel Gabriel herself."

As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit '
L which the petitioner assails as contradictory and irreconcilable with the statement of the Court that
Atty. Paraiso was handed a list (containing the names of the witnesses and their respective residence
certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was corroborated
by Atty. Paraiso himself who testified that it was only on said occasion that he received such list from
Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction for the,
respondent Court held that on the occasion of the will making on April 15, 1961, the list was given
immediately to Atty. Paraiso and that no such list was given the lawyer in any previous occasion or
date prior to April 15, 1961.

But whether Atty. Paraiso was previously furnished with the names and residence certificates of the
witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the attestation
clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit "F" is a
notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the same is
a public document executed and attested through the intervention of the notary public and as such
public document is evidence of the facts in clear, unequivocal manner therein expressed. It has in its
favor the presumption of regularity. To contradict all these, there must be evidence that is clear,
convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such
evidence pointed by petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines
under the typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil that the
three attesting witnesses were all present in the same occasion merits Our approval because tills
conclusion is supported and borne out by the evidence found by the appellate court, thus: "On page 5
of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date issued" and place issued
the only name of Isabel Gabriel with Residence Tax certificate No. A-5113274 issued on February 24,
1961 at Navotas Rizal appears to be in typewritten form while the names, residence tax certificate
numbers, dates and places of issuance of said certificates pertaining to the three (3) witnesses were
personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the sale must
be made to close relatives; and the seventh was the appointment of the appellant Santiago as
executrix of the will without bond. The technical description of the properties in paragraph 5 of Exhibit
F was not given and the numbers of the certificates of title were only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the
docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were
supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have
dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel
Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a
brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after the
execution of Exhibit "F". While we can rule that this is a finding of fact which is within the competency
of the respondent appellate court in determining the testamentary capacity of the testatrix and is,
therefore, beyond Our power to revise and review, We nevertheless hold that the conclusion reached
by the Court of Appeals that the testatrix dictated her will without any note or memorandum appears
to be fully supported by the following facts or evidence appearing on record. Thus, Isabel Gabriel,
despite her age, was particularly active in her business affairs as she actively managed the affairs of
the movie business ISABELITA Theater, paying the aparatistas herself until June 4, 1961, 3 days
before her death. She was the widow of the late Eligio Naval, former Governor of Rizal Province and
acted as coadministratrix in the Intestate Estate of her deceased husband Eligio Naval. The text of the
win was in Tagalog, a dialect known and understood by her and in the light of all the circumstances,
We agree with the respondent Court that the testatrix dictated her will without any note or
memorandum, a fact unanimously testified to by the three attesting witnesses and the notary public
himself.

Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses, Celso
Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus: "On the
contrary, the record is replete with proof that Matilde Orobia was physically present when the will was
signed by Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso Gimpaya and Maria
Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons to the child
of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday
for which reason Orobia could not have been present to witness the will on that — day is purely
conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child every
Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a Saturday,
she gave no piano lessons on that day for which reason she could have witnessed the execution of
the will. Orobia spoke of occasions when she missed giving piano lessons and had to make up for the
same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961
and there was nothing to preclude her from giving piano lessons on the afternoon of the same day in
Navotas, Rizal."

In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was
present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand
margin of each of the pages of the will, the documentary evidence which is the will itself, the attestation
clause and the notarial acknowledgment overwhelmingly and convincingly prove such fact that Matilde
Orobia was present on that day of April 15, 1961 and that she witnessed the will by signing her name
thereon and acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The
attestation clause which Matilde Orobia signed is the best evidence as to the date of signing because
it preserves in permanent form a recital of all the material facts attending the execution of the will. This
is the very purpose of the attestation clause which is made for the purpose of preserving in permanent
form a record of the facts attending the execution of the will, so that in case of failure in the memory
of the subscribing witnesses, or other casualty they may still be proved. (Thompson on Wills, 2nd ed.,
Sec. 132; Leynez vs. Leynez, 68 Phil. 745).

As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial
court gave undue importance to the picture-takings as proof that the win was improperly executed, We
agree with the reasoning of the respondent court that: "Matilde Orobia's Identification of the
photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor
mistake attributable to lapse of time. The law does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia mistakenly Identified the photographer as Cesar
Mendoza scarcely detracts from her testimony that she was present when the will was signed because
what matters here is not the photographer but the photograph taken which clearly portrays Matilde
Orobia herself, her co-witnesses Celso Gimpaya. " Further, the respondent Court correctly held: "The
trial court gave undue importance to the picture takings, jumping therefrom to the conclusion that the
will was improperly executed. The evidence however, heavily points to only one occasion of the
execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and
Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of this occasion.
Hence, their Identification of some photographs wherein they all appeared along with Isabel Gabriel
and Atty. Paraiso was superfluous."

Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at
the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of
the first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was
admittedly no longer present was wholly unnecessary if not pointless. What was important was that
the will was duly executed and witnessed on the first occasion on April 15, 1961 , " and We agree with
the Court's rationalization in conformity with logic, law and jurisprudence which do not require picture-
taking as one of the legal requisites for the execution or probate of a will.

Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their
respective testimonies before the trial court. On the other hand, the respondent Court of Appeals held
that said contradictions, evasions and misrepresentations had been explained away. Such
discrepancies as in the description of the typewriter used by Atty. Paraiso which he described as "elite"
which to him meant big letters which are of the type in which the will was typewritten but which was
Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the name of the
photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr.— these
are indeed unimportant details which could have been affected by the lapse of time and the treachery
of human memory such that by themselves would not alter the probative value of their testimonies on
the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected
that the testimony of every person win be Identical and coinciding with each other with regard to details
of an incident and that witnesses are not expected to remember all details. Human experience teach
us "that contradictions of witnesses generally occur in the details of certain incidents, after a long
series of questionings, and far from being an evidence of falsehood constitute a demonstration of good
faith. In as much as not all those who witness an incident are impressed in like manner, it is but natural
that in relating their impressions, they should not agree in the minor details; hence the contradictions
in their testimony." (Lopez vs. Liboro, 81 Phil. 429).

It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by
the respondent appellate court because the trial court was in a better position to weigh and evaluate
the evidence presented in the course of the trial. As a general rule, petitioner is correct but it is subject
to well-established exceptions. The right of the Court of Appeals to review, alter and reverse the
findings of the trial court where the appellate court, in reviewing the evidence has found that facts and
circumstances of weight and influence have been ignored and overlooked and the significance of
which have been misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial
courts particularly when they are based on conflicting evidence whose evaluation hinges on questions
of credibility of contending witnesses hes peculiarly within the province of trial courts and generally,
the appellate court should not interfere with the same. In the instant case, however, the Court of
Appeals found that the trial court had overlooked and misinterpreted the facts and circumstances
established in the record. Whereas the appellate court said that "Nothing in the record supports the
trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;"
that the trial court's conclusion that Matilde Orobia could not have witnessed anybody signing the
alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign the same
or that she witnessed only the deceased signing it, is a conclusion based not on facts but on
inferences; that the trial court gave undue importance to the picture-takings, jumping therefrom to the
conclusion that the will was improperly executed and that there is nothing in the entire record to support
the conclusion of the court a quo that the will signing occasion was a mere coincidence and that Isabel
Gabriel made an appointment only with Matilde Orobia to witness the signing of her will, then it
becomes the duty of the appellate court to reverse findings of fact of the trial court in the exercise of
its appellate jurisdiction over the lower courts.

Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court
of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We
agree with the petitioner that among the exceptions are: (1) when the conclusion is a finding grounded
entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken,
absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the presence of each
other as required by law. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel,
together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a photographer
proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the
morning of that day; that on the way, Isabel Gabriel obtained a medical certificate from one Dr.
Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office and told the lawyer that
she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to
be written in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a language
known to and spoken by her; that Atty. Paraiso read back to her what he wrote as dictated and she
affirmed their correctness; the lawyer then typed the will and after finishing the document, he read it
to her and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at the end
of the will in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya
and also at the left-hand margin of each and every page of the document in the presence also of the
said three witnesses; that thereafter Matilde Orobia attested the will by signing her name at the end of
the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the
presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then,
Celso Gimpaya signed also the will at the bottom of the attestation clause and at the left-hand margin
of the other pages of the document in the presence of Isabel Gabriel, Matilde Orobia and Maria
Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the attestation clause and
at the left-hand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso
Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961,
in his Notarial Register. On the occasion of the execution and attestation of the will, a photographer
took pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya,
Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the will, and another, Exhibit
"H", showing Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to bring with
her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did not know
beforehand the Identities of the three attesting witnesses until the latter showed up at his law office
with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which was not controverted that he wrote
down in his own hand the date appearing on page 5 of Exhibit "F" dissipates any lingering doubt that
he prepared and ratified the will on the date in question."

It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel
could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by
the evidence on record as stated in the decision under review, thus: "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said lawyer
she had no note or document. This fact jibes with the evidence — which the trial court itself believed
was unshaken — that Isabel Gabriel was of sound disposing memory when she executed her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first
was Isabel Gabriel's wish to be interred according to Catholic rites the second was a general directive
to pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda. de
Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13 nephews
and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee the fifth was
the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general
terms seven (7) types of properties; the sixth disposed of the remainder of her estate which she willed
in favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in
extreme situations in which judgment is based on a misapprehension of facts; (5) when the findings
of fact are conflicting, (6) when the Court of Appeals, in making its findings, went beyond the issues
of the case and the same is contrary to the admissions of both appellant and appellee. (Roque vs.
Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533,
Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).

Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate
court are fully supported by the evidence on record. The conclusions are fully sustained by substantial
evidence. We find no abuse of discretion and We discern no misapprehension of facts. The respondent
Court's findings of fact are not conflicting. Hence, the well-established rule that the decision of the
Court of Appeals and its findings of fact are binding and conclusive and should not be disturbed by
this Tribunal and it must be applied in the case at bar in its full force and effect, without qualification or
reservation. The above holding simply synthesize the resolutions we have heretofore made in respect
' to petitioner's previous assignments of error and to which We have disagreed and, therefore, rejected.

The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and usual
course of judicial proceedings as to call for the exercise of the power of supervision by the Supreme
Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court
and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence
on record is unassailable that: "From the welter of evidence presented, we are convinced that the will
in question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and
Maria Gimpaya signing and witnessing the same in the the will on a table with Isabel Gabriel, Celso
Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the notarial act,
then delivered the original to Isabel Gabriel and retained the other copies for his file and notarial
register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and another
photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted another picture
taken because the first picture did not turn out good. The lawyer told her that this cannot be done
because the will was already signed but Isabel Gabriel insisted that a picture be taken, so a simulated
signing was performed during which incident Matilde Orobia was not present.

Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for
the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at
bar, the three instrumental witnesses who constitute the best evidence of the will making have testified
in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law and long
in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses who stand
to receive no benefit from the testament. The signatures of the witnesses and the testatrix have been
identified on the will and there is no claim whatsoever and by anyone, much less the petitioner, that
they were not genuine. In the last and final analysis, the herein conflict is factual and we go back to
the rule that the Supreme Court cannot review and revise the findings of facts of the respondent Court
of Appeals.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED,
with costs against the petitioner.

SO ORDERED.

Teehankee, Makasiar, De Castro and Herrera, JJ., concur.

Case Digest
FACTS:
1. Petitioner Rizalina Gonzales and Lutgarda Santiago (Private respondent) are the nieces of
the deceased Isabel Gabriel who died a widow. A will was thereafter submitted to probate. The
said will was typewritten, in Tagalog and appeared to have been executed in April 1961 or two
months prior to the death of Isabel. It consisted of 5 pages including the attestation and
acknowledgment, with the signature of testatrix on page 4 and the left margin of all the pages.

2. Lutgarda was named as the universal heir and executor. The petitioner opposed the
probate.

3. The lower court denied the probate on the ground that the will was not executed and attested
in accordance with law on the issue of the competency and credibility of the witnesses.

ISSUE:
Whether or not the credibility of the subscribing witnesses is material to the validity of a will

RULING:
No. The law requires only that witnesses posses the qualifications under Art. 820 (NCC) and
none of the disqualifications of Art. 802. There is no requirement that they are of good standing or
reputation in the community, for trustworthiness, honesty and uprightness in order that his testimony
is believed and accepted in court. For the testimony to be credible, it is not mandatory that evidence
be established on record that the witnesses have good standing in the the community. Competency is
distinguished from credibility, the former being determined by Art. 820 while the latter does not require
evidence of such good standing. Credibility depends on the convincing weight of his testimony in court.
2. G.R. No. 76464 February 29, 1988

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,

CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO,
AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:

This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and involving the
same parties had already been decided by us in the past. In G.R. No. L-30479, 1 which was a petition for certiorari and mandamus instituted
by the petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the petitioners is a separate proceeding for the
probate of the will in question. Pursuant to the said ruling, the petitioners commenced in the then Court of First Instance of Iloilo, Special
Proceeding No. 2176, for the probate of the disputed will, which was opposed by the private respondents presently, Panfilo and Felino both
surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to
this Court on a petition for review by certiorari. 2 Acting on the said petition, we set aside the trial court's order and directed it to proceed to hear
the case on the merits. The trial court, after hearing, found the will to have already been revoked by the testatrix. Adriana Maloto, and thus,
denied the petition. The petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the
order. The petitioners' motion for reconsideration of the adverse decision proved to be of no avail, hence, this petition.

For a better understanding of the controversy, a factual account would be a great help.

On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners
Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and Felino
Maloto. Believing that the deceased did not leave behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt's estate.
The case was instituted in the then Court of First Instance of Iloilo and was docketed as Special
Proceeding No. 1736. However, while the case was still in progress, or to be exact on February 1,
1964, the parties — Aldina, Constancio, Panfilo, and Felino — executed an agreement of extrajudicial
settlement of Adriana's estate. The agreement provided for the division of the estate into four equal
parts among the parties. The Malotos then presented the extrajudicial settlement agreement to the
trial court for approval which the court did on March 21, 1964. That should have signalled the end of
the controversy, but, unfortunately, it had not.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's
counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA
PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will and
testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he
was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. The
document was submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1,
1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and
Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what
they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The will
likewise gives devises and legacies to other parties, among them being the petitioners Asilo de Molo,
the Roman Catholic Church of Molo, and Purificacion Miraflor.

Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in
the will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the
proceedings therein and for the allowance of the will When the trial court denied their motion, the
petitioner came to us by way of a petition for certiorari and mandamus assailing the orders of the trial
court . 3 As we stated earlier, we dismissed that petition and advised that a separate proceeding for
the probate of the alleged will would be the appropriate vehicle to thresh out the matters raised by the
petitioners.

Significantly, the appellate court while finding as inconclusive the matter on whether or not the
document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral,
upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will had
been revoked. The respondent court stated that the presence of animus revocandi in the destruction
of the will had, nevertheless, been sufficiently proven. The appellate court based its finding on the
facts that the document was not in the two safes in Adriana's residence, by the testatrix going to the
residence of Atty. Hervas to retrieve a copy of the will left in the latter's possession, and, her seeking
the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained,
we do not view such facts, even considered collectively, as sufficient bases for the conclusion that
Adriana Maloto's will had been effectively revoked.

There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will.
The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of wills: or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking
it, by the testator himself, or by some other person in his presence, and by his express
direction. If burned, torn cancelled, or obliterated by some other person, without the
express direction of the testator, the will may still be established, and the estate
distributed in accordance therewith, if its contents, and due execution, and the fact of
its unauthorized destruction, cancellation, or obliteration are established according to
the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute
an effective revocation, unless the destruction is coupled with animus revocandi on the part of the
testator. It is not imperative that the physical destruction be done by the testator himself. It may be
performed by another person but under theexpress direction and in the presence of the testator. Of
course, it goes without saying that the document destroyed must be the will itself.

In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of
mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary
elements for the effective revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried
out by the testator or by another person in his presence and under his express direction. There is
paucity of evidence to show compliance with these requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less
the will of Adriana Maloto. For another, the burning was not proven to have been done under the
express direction of Adriana. And then, the burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they were the only ones present at the place where
the stove (presumably in the kitchen) was located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor of
the will's revocation appear "inconclusive." We share the same view. Nowhere in the records before
us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates,
were unequivocably positive that the document burned was indeed Adriana's will. Guadalupe, we
think, believed that the papers she destroyed was the will only because, according to her, Adriana told
her so. Eladio, on the other hand, obtained his information that the burned document was the will
because Guadalupe told him so, thus, his testimony on this point is double hearsay.

At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is
not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession
will be shaken to its very foundations ...."4

The private respondents in their bid for the dismissal of the present action for probate instituted by the
petitioners argue that the same is already barred by res adjudicata. They claim that this bar was
brought about by the petitioners' failure to appeal timely from the order dated November 16, 1968 of
the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners')
motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow the
last will and testament of the late Adriana Maloto. This is untenable.

The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a
bar to a subsequent case, the following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject matter
and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first
and the second action, Identity of parties, of subject matter, and of cause of action. 5 We do not find
here the presence of all the enumerated requisites.

For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana
Maloto's will is concerned. The decision of the trial court in Special Proceeding No. 1736, although
final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not
in any manner be construed to be final with respect to the probate of the subsequently discovered will
of the decedent. Neither is it a judgment on the merits of the action for probate. This is understandably
so because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate
of the contested will . 6 After all, an action for probate, as it implies, is founded on the presence of a
will and with the objective of proving its due execution and validity, something which can not be
properly done in an intestate settlement of estate proceeding which is predicated on the assumption
that the decedent left no will. Thus, there is likewise no Identity between the cause of action in intestate
proceeding and that in an action for probate. Be that as it may, it would be remembered that it was
precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action
for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the
private respondents on this score can not be sustained.

One last note. The private respondents point out that revocation could be inferred from the fact that
"(a) major and substantial bulk of the properties mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the time of death (of the testatrix); and, furthermore,
more valuable properties have been acquired after the execution of the will on January
3,1940." 7 Suffice it to state here that as these additional matters raised by the private respondents are
extraneous to this special proceeding, they could only be appropriately taken up after the will has been
duly probated and a certificate of its allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated
June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a
new one ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the
private respondents.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.

Padilla, J., took no part.

Case Digest
FACTS:
1. Petitioners and respondents are the neices/nephews or Adriana Maloto who died in 1963.
The four heirs believed that the deceased did not leave a will, hesnce they filed an intestate
proceeding. However, the parties executed an extrajudicial settlement of the estate dividing it
into four equal parts.

2. In 1967, Atty. Sulpicio Palma, ex-associate of the deceased's counsel allegedly discovered
her last will which was purportedly dated 1940, inside a cabinet. Hence the annulment of the
proceedings and a probate petition was filed by the devisees and legatees. The said will was
allegedly burned by the househelp under the instruction of the deceased

3. The lower court denied the probate on the ground that the animus revocandi in the burning
of the will was sufficiently proven.

ISSUE:
Whether or not there was valid revocation of the will

RULING:
No, there was no revocation. For a valid revocation to occur,the 'corpus' and 'animus'must
concur, one without the other will not produce a valid revocation. The physical act of destruction of a
will must come with an intention to revoke (animus revocandi). In this case, there's paucity of evidence
to comply with the said requirement. The paper burned was not established to be the will and the
burning though done under her express direction was not done in her presence.

Under Art. 830, the physical act of destruction, in this case the burning of the will, does not constitute
an effective revocation, unless it is coupled with animus revocandi on the part of the testator. Since
animus is a state of mind, it has to be accompanied by an overt physical act of burning, tearing,
obliterating or cancelling done by the testator himself or by another under his express direction
and presence.
3. G.R. No. L-26317 January 29, 1927

Estate of Miguel Mamuyac, deceased.

FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.

Nicanor Tavora for appellant.

Jose Rivera for appellees.

JOHNSON, J.:

The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac,
who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It
appears from the record that on or about the 27th day of July, 1918, the said Miguel Mamuyac
executed a last will and testament (Exhibit A). In the month of January, 1922, the said Francisco Gago
presented a petition in the Court of First Instance of the Province of La Union for the probation of that
will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana
Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing all of the
parties the petition for the probation of said will was denied by the Honorable C. M. Villareal on the 2d
day of November, 1923, upon the ground that the deceased had on the 16th day of April, 1919,
executed a new will and testament.

On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the
probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a)
that the said will is a copy of the second will and testament executed by the said Miguel Mamuyac; (b)
that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that the
said will was not the last will and testament of the deceased Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the
respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same
had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence
adduced, found that the following facts had been satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in the possession of the
deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of
witness Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar, who
saw on December 30, 1920, the original Exhibit A (will of 1919) actually cancelled by the
testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a
house and the land where the house was built, he had to cancel it (the will of 1919), executing
thereby a new testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy,
admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the
possession of father Miguel Mamuyac. The opponents have successfully established the fact
that father Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the
sister of the deceased, who was living in the house with him, when cross-examined by attorney
for the opponents, testified that the original Exhibit A could not be found. For the foregoing
consideration and for the reason that the original of Exhibit A has been cancelled by the
deceased father Miguel Mamuyac, the court disallows the probate of Exhibit A for the
applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from the evidence that
the will in question had been executed with all the formalities required by the law; that the same had
been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and
that the oppositors were not estopped from alleging that fact.

With reference to the said cancellation, it may be stated that there is positive proof, not denied, which
was accepted by the lower court, that will in question had been cancelled in 1920. The law does not
require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes
difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or
revocation has taken place must either remain unproved of be inferred from evidence showing that
after due search the original will cannot be found. Where a will which cannot be found is shown to
have been in the possession of the testator, when last seen, the presumption is, in the absence of
other competent evidence, that the same was cancelled or destroyed. The same presumption arises
where it is shown that the testator had ready access to the will and it cannot be found after his death.
It will not be presumed that such will has been destroyed by any other person without the knowledge
or authority of the testator. The force of the presumption of cancellation or revocation by the testator,
while varying greatly, being weak or strong according to the circumstances, is never conclusive, but
may be overcome by proof that the will was not destroyed by the testator with intent to revoke it.

In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel
Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the
conclusion that the conclusions of the lower court are in accordance with the weight of the evidence.
In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not
only its execution but its existence. Having proved its execution by the proponents, the burden is on
the contestant to show that it has been revoked. In a great majority of instances in which wills are
destroyed for the purpose of revoking them there is no witness to the act of cancellation or destruction
and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by
the courts with great caution. When it is proven, however, by proper testimony that a will was executed
in duplicate and each copy was executed with all the formalities and requirements of the law, then the
duplicate may be admitted in evidence when it is made to appear that the original has been lost and
was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1

After a careful examination of the entire record, we are fully persuaded that the will presented for
probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby
affirmed. And without any finding as to costs, it is so ordered.

Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

Case Digest
FACTS:
1. Previously, Francisco Gago filed a petition for the probate of a will of Miguel Mamuyac
executed on July 27, 1918. The oppositors alleged that the said will was already annulled and
revoked. It appeared that on April 16, 1919, the deceased executed another will. The lower
court denied the probate of the first will on the ground of the existence of the second will.

2. Another petition was filed to seek the probate of the second will. The oppositors alleged that
the second will presented was merely a copy. According to the witnesses, the said will was
allegedly revoked as per the testimony of Jose Tenoy, one of the witnesses who typed the
document. Another witness testified that on December 1920 the original will was actually
cancelled by the testator.
 3. The lower court denied the probate and held that the same has been annulled and revoked.

ISSUE:
Whether or not there was a valid revocation of the will

RULING:
Yes. The will was already cancelled in 1920. This was inferred when after due search, the
original will cannot be found. When the will which cannot be found in shown to be in the possession
of the testator when last seen, the presumption is that in the absence of other competent evidence,
the same was deemed cancelled or destroyed. The same presumption applies when it is shown that
the testator has ready access to the will and it can no longer be found after his death.
4. G.R. No. 17714 May 31, 1922

In the mater of the estate of Jesus de Leon.

IGNACIA DIAZ, petitioner-appellant,
vs.
ANA DE LEON, opponent-appellee.

Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Treñas for appellee.

ROMUALDEZ, J.:

The only question raised in this case is whether or to the will executed by Jesus de Leon, now, was
revoked by him.

The petitioner denies such revocation, while the contestant affirms the same by alleging that the
testator revoked his will by destroying it, and by executing another will expressly revoking the former.

We find that the second will Exhibit 1 executed by the deceased is not cloth with all the necessary
requisites to constitute a sufficient revocation.

But according to the statute governing the subject in this jurisdiction, the destruction of a will animo
revocandi constitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.)lävvphì1·né+

From the evidence submitted in this case, it appears that the testator, shortly after the execution of
the first will in question, asked that the same be returned to him. The instrument was returned to the
testator who ordered his servant to tear the document. This was done in his presence and before a
nurse who testified to this effect. After some time, the testator, being asked by Dr. Cornelio Mapa
about the will, said that it had been destroyed.

The intention of revoking the will is manifest from the established fact that the testator was anxious
to withdraw or change the provisions he had made in his first will. This fact is disclosed by the
testator's own statements to the witnesses Canto and the Mother Superior of the Hospital where he
was confined.

The original will herein presented for probate having been destroyed with animo revocandi, cannot
now be probated as the will and last testament of Jesus de Leon.

Judgement is affirmed with costs against the petitioner. So ordered.

Araullo, C.J., Malcolm, Avanceña, Ostrand and Johns, JJ., concur.

Villamor, J., took no part.
 Case Digest
FACTS:
1. Jesus de Leon executed 2 wills, the second will was not deemed in conformance to the
requirements under the law. After executing his first will, he asked it to be immediately returned to
him. As it was returned, he instructed his servant to tear it. This was done in the testator's presence
and his nurse. After sometime, he was asked by his physician about the incident wherein he replied
that the will has already been destroyed.

ISSUE:

Whether or not there was a valid revocation of the will

RULING:

Yes. His intention to revoke is manifest from the facts that he was anxious to withdraw or
change the provisions he made in the first will. This fact was shown from his own statements to the
witnesses and the mother superior of the hospital where he was subsequently confined. The original
will which was presented for probate is deemed destroyed hence, it cannot be probated as the last
will and testament of testator.
5. G.R. No. L-2538 September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

Claro M. Recto and Serafin C. Dizon for appellants.

Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will
and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-
appellants brought the case on appeal to this Court for the reason that the value of the properties
involved exceeds P50,000.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal,
without leaving any forced heir either in the descending or ascending line. He was survived, however,
by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the
oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children
of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills,
one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The
later will executed in 1918.

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

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944,
filed another petition for the probate of the will executed by the deceased on August 17, 1918, which
was docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an
opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking the
probate of the will of 1918; (2) that said will has not been executed in the manner required by law and
(3) that the will has been subsequently revoked. But before the second petition could be heard, the
battle for liberation came and the records of the case were destroyed. Consequently, a petition for
reconstitution was filed, but the same was found to be impossible because neither petitioner nor
oppositors could produce the copies required for its reconstitution. As a result, petitioner filed a new
petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an
opposition based on the same grounds as those contained in their former opposition. Then, the case
was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate already
stated in the early part of this decision. From this order the oppositors appealed assigning six errors,
to wit.

I. The probate court erred in not holding that the present petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order
to enable her to obtain the probate of another alleged will of Molo dated 191.
 II. The court a quo erred in not holding that the petitioner is now estopped from seeking the
probate of Molo's alleged will of 1918.

III. The lower court erred in not holding that petitioner herein has come to court with "unclean
hands" and as such is not entitled to relief.

IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.

V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked
by Molo himself.

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by
the decedent's will of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court erred in not
holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20,
1939, in order to enable her to obtain the probate of the will executed by the deceased on August 17,
1918, pointing out certain facts and circumstances with their opinion indicate that petitioner connived
with the witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because
of her knowledge that said will intrinsically defective in that "the one and only testamentory disposition
thereof was a "disposicion captatoria". These circumstances, counsel for the appellants contend,
constitute a series of steps deliberately taken by petitioner with a view to insuring the realization of her
plan of securing the probate of the 1918 will which she believed would better safeguard her right to
inherit from the decease.

These imputations of fraud and bad faith allegedly committed in connection with special proceedings
No. 8022, now closed and terminated, are vigorously met by counsel for petitioner who contends that
to raise them in these proceedings which are entirely new and distinct and completely independent
from the other is improper and unfair as they find no support whatsoever in any evidence submitted
by the parties in this case. They are merely based on the presumptions and conjectures not supported
by any proof. For this reason, counsel, contends, the lower court was justified in disregarding them
and in passing them sub silentio in its decision.

A careful examination of the evidence available in this case seems to justify this contention. There is
indeed no evidence which may justify the insinuation that petitioner had deliberately intended to
frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another will
other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez that
he went out of the room to answer an urgent call of nature when Artemio Reyes was signing the will
and the failure of petitioner later to impeach the character of said witness in spite of the opportunity
given her by the court to do so. Apart from this insufficiency of evidence, the record discloses that this
failure has been explained by petitioner when she informed the court that she was unable to impeach
the character of her witness Canuto Perez because of her inability to find witnesses who may impeach
him, and this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is
not now, for us to determine. It is an incident that comes within the province of the former case. The
failure of petitioner to present the testimony of Artemio Reyes at the hearing has also been explained,
and it appears that petitioner has filed because his whereabouts could not be found. Whether this is
true or not is also for this Court to determine. It is likewise within the province and function of the court
in the former case. And the unfairness of this imputation becomes more glaring when we stock of the
developments that had taken place in these proceedings which show in bold relief the true nature of
the conduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by the
oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was
filed on February 7, 1941, by the petitioner. There being no opposition, the will was probated.
Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said
will to probate was set aside, over the vigorous opposition of the herein petitioner, and the case was
reopened. The reopening was ordered because of the strong opposition of the oppositors who
contended that he will had not been executed as required by law. After the evidence of both parties
had been presented, the oppositors filed an extensive memorandum wherein they reiterated their view
that the will should be denied probate. And on the strenght of this opposition, the court disallowed the
will.

If petitioner then knew that the 1939 will was inherently defective and would make the testamentary
disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which
knowledge she may easily acquire through consultation with a lawyer, there was no need her to go
through the order of filing the petition for the probate of the will. She could accomplish her desire by
merely suppressing the will or tearing or destroying it, and then take steps leading to the probate of
the will executed in 1918. But for her conscience was clear and bade her to take the only proper step
possible under the circumstances, which is to institute the necessary proceedings for the probate of
the 1939 will. This she did and the will was admitted to probate. But then the unexpected happened.
Over her vigorous opposition, the herein appellants filed a petition for reopening, and over her vigorous
objection, the same was granted and the case was reopened. Her motion for reconsideration was
denied. Is it her fault that the case was reopened? Is it her fault that the order admitting the will to
probate was set aside? That was a contingency which petitioner never expected. Had appellants not
filed their opposition to the probate of the will and had they limited their objection to the intrinsic validity
of said will, their plan to defeat the will and secure the intestacy of the deceased would have perhaps
been accomplished. But they failed in their strategy. If said will was denied probate it is due to their
own effort. It is now unfair to impute bad faith petitioner simply because she exerted every effort to
protect her own interest and prevent the intestacy of the deceased to happen.

Having reached the foregoing conclusions, it is obvious that the court did not commit the second and
third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty
or estoppel which would prevent her from seeking the probate of the 1918 will simply because of her
effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939
wills she was in by her husband as his universal heir. Nor can she be charged with bad faith far having
done so because of her desire to prevent the intestacy of her husband. She cannot be blamed being
zealous in protecting her interest.

The next contention of appellants refers to the revocatory clause contained in 1939 will of the
deceased which was denied probate. They contend that, notwithstanding the disallowance of said will,
the revocatory clause is valid and still has the effect of nullifying the prior of 1918.

Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson
vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the
facts of this case. Hence, the doctrine is that case is here controlling.

There is merit in this contention. We have carefully read the facts involved in the Samson case we are
indeed impressed by their striking similarity with the facts of this case. We do not need to recite here
what those facts are; it is enough to point out that they contain many points and circumstances in
common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote
hereunder) should not apply and control the present case.

A subsequent will, containing a clause revoking a previous will, having been disallowed, for
the reason that it was not executed in conformity with the provisions of section 618 of the Code
 of Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous
will, inasmuch as said revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with
the soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling
because it is archaic or antiquated and runs counter to the modern trend prevailing in American
jurisprudence. They maintain that said ruling is no longer controlling but merely represents the point
of view of the minority and should, therefore, be abandoned, more so if we consider the fact that
section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of American origin
and as such should follow the prevailing trend of the majority view in the United States. A long line of
authorities is cited in support of this contention. And these authorities hold the view, that "an express
revocation is immediately effective upon the execution of the subsequent will, and does not require
that it first undergo the formality of a probate proceeding". (p. 63, appellants' brief .

While they are many cases which uphold the view entertained by counsel for oppositors, and that view
appears to be in controlling the states where the decisions had been promulgated, however, we are
reluctant to fall in line with the assertion that is now the prevailing view in the United States. In the
search we have made of American authorities on the subject, we found ourselves in a pool of
conflicting opinions perhaps because of the peculiar provisions contained in the statutes adopted by
each State in the subject of revocation of wills. But the impression we gathered from a review and the
study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good law.
On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948, we found
the following passages which in our opinion truly reflect the present trend of American jurisprudence
on this matter affecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes which

permit the revocation of a will by another writing provide that to be effective as a revocation,
the writing must be executed with the same formalities which are required to be observed in
the execution of a will. Accordingly, where, under the statutes, attestation is necessary to the
making of a valid will, an unattested non testamentary writing is not effective to revoke a prior
will. It has been held that a writing fails as a revoking instrument where it is not executed with
the formalities requisite for the execution of a will, even though it is inscribed on the will itself,
although it may effect a revocation by cancellation or obliteration of the words of the will. A
testator cannot reserve to himself the power to modify a will by a written instrument
subsequently prepared but not executed in the manner required for a will.

SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is
invalid because of the incapacity of the testator, or of undue influence can have no effect
whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later
one. Nor is a will revoked by a defectively executed will or codicil, even though the latter
contains a clause expressly revoking the former will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a testamentary instrument is sufficient to revoke a
will, for the simple reason that there is no revoking will. Similarly where the statute provides
that a will may be revoked by a subsequent will or other writing executed with the same
formalities as are required in the execution of wills, a defectively executed will does not revoke
a prior will, since it cannot be said that there is a writing which complies with the statute.
Moreover, a will or codicil which, on account of the manner in which it is executed, is sufficient
to pass only personally does not affect dispositions of real estate made by a former will, even
though it may expressly purport to do so. The intent of the testator to revoke is immaterial, if
he has not complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400,
Volume 123, there appear many authorities on the "application of rules where second will is invalid",
among which a typical one is the following:

It is universally agreed that where the second will is invalid on account of not being executed
in accordance with the provisions of the statute, or where the testator who has not sufficient
mental capacity to make a will or the will is procured through undue influence, or the such, in
other words, where the second will is really no will, it does not revoke the first will or affect it in
any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is
predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no
justification for abondoning it as now suggested by counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some
will, codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will
should be regarded, not as a will within the meaning of said word, but as "other writing executed as
provided in the case of wills", simply because it was denied probate. And even if it be regarded as
any other writing within the meaning of said clause, there is authority for holding that unless said
writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330).

But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918
cannot still be given effect because of the presumption that it was deliberately revoked by the testator
himself. The oppositors contend that the testator, after executing the 1939 will, and with full knowledge
of the recovatory clause contained said will, himself deliberately destroyed the original of the 1918 will,
and for that reason the will submitted by petitioner for probate in these proceedings is only a duplicate
of said original.

There is no evidence which may directly indicate that the testator deliberately destroyed the original
of the 1918 will because of his knowledge of the revocatory clause contained in the will he executed
in 1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo,
who prepared it, gave the original and copies to the testator himself and apparently they remained in
his possession until he executed his second will in 1939. And when the 1939 will was denied probate
on November 29, 1943, and petitioner was asked by her attorney to look for another will, she found
the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original.

If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of
the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife,
the herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in
order that it may likewise be destroyed. But this was not done as shown by the fact that said duplicate
copy remained in the possession of petitioner. It is possible that because of the long lapse of twenty-
one (21) years since the first will was executed, the original of the will had been misplaced or lost, and
forgetting that there was a copy, the testator deemed it wise to execute another will containing exactly
the same testamentary dispositions. Whatever may be the conclusion we may draw from this chain of
circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate
destruction of the first will by the testator. This matter cannot be inference or conjectur.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after
the execution of the second will, which revoked the first, could there be any doubt, under this theory,
that said earlier will was destroyed by the testator in the honest belief that it was no longer necessary
because he had expressly revoked it in his will of 1939? In other words, can we not say that the
destruction of the earlier will was but the necessary consequence of the testator's belief that the
revocatory clause contained in the subsequent will was valid and the latter would be given effect? If
such is the case, then it is our opinion that the earlier will can still be admitted to probate under the
principle of "dependent relative revocation".

This doctrine is known as that of dependent relative revocation, and is usually applied where
the testator cancels or destroys a will or executes an instrument intended to revoke a will with
a present intention to make a new testamentary disposition as a substitute for the old, and the
new disposition is not made or, if made, fails of effect for same reason. The doctrine is n limited
to the existence of some other document, however, and has been applied where a will was
destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799).

The rule is established that where the act of destruction is connected with the making of
another will so as fairly to raise the inference that the testator meant the revocation of the old
to depend upon the efficacy of a new disposition intended to be substituted, the revocation will
be conditional and dependent upon the efficacy of the new disposition; and if, for any reason,
the new will intended to be made as a substitute is inoperative, the revocation fails and the
original will remains in full force. (Gardner, pp. 232, 233.)

This is the doctrine of dependent relative revocation. The failure of a new testamentary
disposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of
a suspensive conditions, and hence prevents the revocation of the original will. But a mere
intent to make at some time a will in the place of that destroyed will not render the destruction
conditional. It must appear that the revocation is dependent upon the valid execution of a new
will. (1 Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the testator
could be presumed from the failure of the petitioner to produce it in court, such destruction cannot
have the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken
belief that the will of 1939 has been validly executed and would be given due effect. The theory on
which this principle is predicated is that the testator did not intend to die intestate. And this intention is
clearly manifest when he executed two wills on two different occasion and instituted his wife as his
universal heir. There can therefore be no mistake as to his intention of dying testate.

The remaining question to be determined refers to the sufficiency of the evidence to prove the due
execution of the will.

The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino
Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present
proceedings. So the only instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner
presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the notary
public who prepared and notarized the will upon the express desire and instruction of the testator, The
testimony of these witnesses shows that the will had been executed in the manner required by law.
We have read their testimony and we were impressed by their readiness and sincerity. We are
convinced that they told the truth.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellants. 1âwphïl.nêt

Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.
 Case Digest
FACTS:
1. Mariano Molo y Legaspi died on January 24, 1941,without leaving any forced heir either in the
descending or ascending line. He was survived, however, by his wife, the herein petitioner Juana
Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz Gliceria and
Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi,
deceased brother of the testator.
2. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, and another
executed on June 20, 1939. . The later will executed has express provision revoking the will in
1918.
3. Only a carbon copy of the second will was found. The Juana Juan Vda. de Molo filed a petition
for the probate of the 1939 will. It was admitted to probate but subsequently set aside on
ground that the petitioner failed to prove its due execution.
4. After hearing, at which both parties presented their evidence, the court rendered decision
denying the probate of said will on the ground that the petitioner failed to prove that the same
was executed in accordance with law.
5. In view of the disallowance of the will executed on June 20, 1939, the widow on February 24,
1944, filed another petition for the probate of the will executed by the deceased on August 17,
1918 , in the same court.
6. Again, the same oppositors filed an opposition to the petition based on three grounds: (1)
that petitioner is now estopped from seeking the probate of the will of 1918; (2) that said will
has not been executed in the manner required by law and (3) that the will has been
subsequently revoked.
ISSUE:
Can the will executed in 1918 be probated in view of the disallowance of 1939 will despite the
express revocation of the former?
HELD:

YES. The court applied the doctrine laid down in Samson v. Naval that a subsequent will,
containing a clause revoking a previous will, having been disallowed for the reason that it was not
executed in accordance with law cannot produce the effect of annulling the previous will, inasmuch as
the said revocatory clause is void.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some
will, codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will
should be regarded, not as a will within the meaning of said word, but as "other writing executed as
provided in the case of wills", simply because it was denied probate. And even if it be regarded as any
other writing within the meaning of said clause, there is authority for holding that unless said writing is
admitted to probate, it cannot have the effect of revocation.
 Further, there is no evidence which may directly indicate that the testator deliberately destroyed the
original of the 1918 will because of his knowledge of the revocatory clause contained in the will he
executed in 1939. The only evidence we have is that when the first will was executed in 1918, Juan
Salcedo, who prepared it, gave the original and copies to the testator himself and apparently they
remained in his possession until he executed his second will in 1939. And when the 1939 will was denied
probate on November 29, 1943, and petitioner was asked by her attorney to look for another will, she
found the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the
original.

Decision: Wherefore, the order appealed from is hereby affirmed, with costs against the appellants
6. G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA
JUGO, respondents.

GUTIERREZ, JR., J.:

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

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by
him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the
presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their
signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was acknowledged before
the Notary Public Romeo Escareal by the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole
and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a
certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952,
he had been estranged from his lawfully wedded wife and had been living with petitioner as husband
and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J.
Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to
his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire
estate and the free portion thereof to herein petitioner. The Will reads in part:

Art. III. That I have the following legal heirs, namely: my aforementioned legal wife,
Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo,
whom I declare and admit to be legally and properly entitled to inherit from me; that
while I have been estranged from my above-named wife for so many years, I cannot
deny that I was legally married to her or that we have been separated up to the present
for reasons and justifications known fully well by them:

Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all
the things which she has done for me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and consent, did comport and represent
myself as her own husband, in truth and in fact, as well as in the eyes of the law, I
could not bind her to me in the holy bonds of matrimony because of my aforementioned
previous marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the
deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked
for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition
alleging inter alia that the execution of the Will was procured by undue and improper influence on the
part of the petitioner; that at the time of the execution of the Will, the testator was already very sick
and that petitioner having admitted her living in concubinage with the testator, she is wanting in
integrity and thus, letters testamentary should not be issued to her.

On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16,
1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the
invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal
denying the probate of the will. The respondent court declared the Will to be valid except that the
devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of
the Civil Code of the Philippines. The dispositive portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the will in question declared
valid except the devise in favor of the appellant which is declared null and void. The
properties so devised are instead passed on in intestacy to the appellant in equal
shares, without pronouncement as to cost.

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical
Error" praying that the word "appellant" in the last sentence of the dispositive portion of the decision
be changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy
to the appellees in equal shares, without pronouncement as to costs." The motion was granted by the
respondent court on August 10, 1982.

On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the
respondent court in a resolution dated December 28, 1982.

The main issue raised by the petitioner is whether or not the respondent court acted in excess of its
jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn,
it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner.

The petitioner submits that the validity of the testamentary provision in her favor cannot be passed
upon and decided in the probate proceedings but in some other proceedings because the only purpose
of the probate of a Will is to establish conclusively as against everyone that a Will was executed with
the formalities required by law and that the testator has the mental capacity to execute the same. The
petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of
the Philippines were applicable, the declaration of its nullity could only be made by the proper court in
a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the
nullity of the testamentary provision in the Will in favor of the person with whom the testator was
allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and Testament itself
expressly admits indubitably on its face the meretricious relationship between the testator and the
petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA
449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June 27, 1975).
Respondents also submit that the admission of the testator of the illicit relationship between him and
the petitioner put in issue the legality of the devise. We agree with the respondents.

The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it
went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner
null and void.

The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination
and resolution of the extrinsic validity of the Will. The rule is expressed thus:

xxx xxx xxx

... It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his last
Will and testament, irrespective of whether its provisions are valid and enforceable or
otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)

The petition below being for the probate of a Will, the court's area of inquiry is limited
to the extrinsic validity thereof. The testators testamentary capacity and the
compliance with the formal requisites or solemnities prescribed by law are the only
questions presented for the resolution of the court. Any inquiry into the intrinsic validity
or efficacy of the provisions of the will or the legality of any devise or legacy is
premature.

xxx xxx xxx

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

xxx xxx xxx

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

The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court
is not powerless to do what the situation constrains it to do and pass upon certain provisions of the
Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as
universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how
valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine
the intrinsic validity of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA
452) passed upon the validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

The basic issue is whether the probate court erred in passing upon the intrinsic validity
of the will, before ruling on its allowance or formal validity, and in declaring it void.

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

There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are
agreed that the Will of Martin Jugo was executed with all the formalities required by law and that the
testator had the mental capacity to execute his Will. The petitioner states that she completely agrees
with the respondent court when in resolving the question of whether or not the probate court correctly
denied the probate of Martin Jugo's last Will and Testament, it ruled:

This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of
Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary
provision in favor of the petitioner as null and void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):

We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the record, in the event of probate or if the court rejects the
will, probability exists that the case will come up once again before us on the same
issue of the intrinsic validity or nullity of the will. Result, waste of time, effort, expense,
plus added anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the provisions of the will
in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517,
522). After all, there exists a justiciable controversy crying for solution.

We see no useful purpose that would be served if we remand the nullified provision to the proper court
in a separate action for that purpose simply because, in the probate of a will, the court does not
ordinarily look into the intrinsic validity of its provisions.

Article 739 of the Civil Code provides:

 The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the
time of the donation;

(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;

(3) Those made to a public officer or his wife, descendants and ascendants, by reason
of his office.

In the case referred to in No. 1, the action for declaration of nullity may be brought by
the spouse of the donor or donee; and the guilt of the donor and donee may be proved
by preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply
to testamentary provisions.

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

There is no question from the records about the fact of a prior existing marriage when Martin Jugo
executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an
ostensible marital relationship for 22 years until his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage
before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman
was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was
legally married to the testator.

The records do not sustain a finding of innocence or good faith. As argued by the private respondents:

First. The last will and testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and petitioner, the devisee.

Second. Petitioner herself initiated the presentation of evidence on her alleged

ignorance of the true civil status of the testator, which led private respondents to
present contrary evidence.

In short, the parties themselves dueled on the intrinsic validity of the legacy given in
the will to petitioner by the deceased testator at the start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as
man and wife, as already married, was an important and specific issue brought by the
parties before the trial court, and passed upon by the Court of Appeals.

Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner
who opted to present evidence on her alleged good faith in marrying the testator.
(Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).

Private respondents, naturally, presented evidence that would refute the testimony of
petitioner on the point.

Sebastian Jugo, younger brother of the deceased testator, testified at length on the
meretricious relationship of his brother and petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the parties made a decisive issue
right at the inception of the case.

Confronted by the situation, the trial court had to make a ruling on the question.

When the court a quo held that the testator Martin Jugo and petitioner 'were deemed
guilty of adultery or concubinage', it was a finding that petitioner was not the innocent
woman she pretended to be.

xxx xxx xxx

3. If a review of the evidence must be made nonetheless, then private respondents

respectfully offer the following analysis:

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

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

THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive
demonstration that she new that the man she had openly lived for 22 years as man
and wife was a married man with already two children.
 FOURTH: Having admitted that she knew the children of respondent Rufina Gomez,
is it possible that she would not have asked Martin Jugo whether or not they were his
illegitimate or legitimate children and by whom? That is un-Filipino.

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

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say
the least, inherently improbable, for they are against the experience in common life
and the ordinary instincts and promptings of human nature that a woman would not
bother at all to ask the man she was going to marry whether or not he was already
married to another, knowing that her groom had children. It would be a story that would
strain human credulity to the limit if petitioner did not know that Martin Jugo was already
a married man in view of the irrefutable fact that it was precisely his marriage to
respondent Rufina Gomez that led petitioner to break off with the deceased during
their younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between
persons who are living in adultery or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the
legacy because the testator admitted he was disposing the properties to a person with whom he had
been living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now
Intermediate Appellate Court, is AFFIRMED. No costs.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ., concur.

Case Digest
FACTS:

Martin Jugo left a duly executed and notarized Last Will and Testament before he
died. Petitioner was named as sole executor. It is clearly stated in the Will that he was
legally married to a certain Rufina Gomez by whom he had two legitimate children, but
he had been estranged from his lawful wife. In fact, the testator Martin Jugo and the
petitioner were married despite the subsisting first marriage. The testator devised the free
portion of his estate to petitioner. On August 21, 1974, the petitioner filed a petition for
probate. On May 13, 1975, Rufina Gomez and her children filed an opposition alleging
undue and improper influence on the part of the petitioner; that at the time of the execution
of the Will, the testator was already very sick and that petitioner having admitted her living
in concubinage with the testator.
The lower court denied the probate of the Will on the ground that as the testator admitted
in his Will to cohabiting with the petitioner. Petitioner appealed to CA. On June 2, 1982,
the respondent court set aside the decision of the Court of First Instance of Rizal denying
the probate of the will. The respondent court declared the Will to be valid except that
the devise in favor of the petitioner is null and void.

ISSUE:

W/N the CA acted in excess of its jurisdiction when after declaring the last Will and
Testament of the deceased Martin Jugo validly drawn, it went on to pass upon
the intrinsic validity of the testamentary provision.

HELD:

No. The respondent court acted within its jurisdiction when after declaring the Will
to be validly drawn, it went on to pass upon the intrinsic validity of the Will and declared
the devise in favor of the petitioner null and void. The general rule is that in probate
proceedings, the court’s area of inquiry is limited to an examination and resolution of the
extrinsic validity of the Will. The rule, however, is not inflexible and absolute. Given
exceptional circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the Will.

The probate of a will might become an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations demand that the intrinsic validity of the
will be passed upon, even before it is probated, the court should meet the issue (Nuguid
v. Nuguid)

The Will is void under Article 739. The following donations shall be void: (1) Those made
between persons who were guilty of adultery or concubinage at the time of the donation;
and Article 1028. The prohibitions mentioned in Article 739, concerning donations inter
vivos shall apply to testamentary provisions.

There is no question from the records about the fact of a prior existing marriage when
Martin Jugo executed his Will. The very wordings of the Will invalidate the legacy because
the testator admitted he was disposing the properties to a person with whom he had been
living in concubinage.
7. G.R. No. L-29300 June 21, 1978

PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the

deceased Pedro Gallanosa being substituted by his legal heirs, namely his above-named
widow and his children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren
named IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the
late SIKATUNA GALLANOSA, son of Pedro D.H. GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of Sorsogon
and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G.
HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN
R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS,
EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO
R. HITOSIS, minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented by their legal
guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS-BALBIDO,
MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA
HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE,
RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES,
SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors
MILAGROS HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA,
represented by their legal guardian and father ERNESTO BANEGA, FELICITAS HITOSIS-
PENAFLOR, GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA
HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO
VDA. DE GANOLA and LEONA HITOSIS-GABITO GAMBA, respondents.

Haile Frivaldo for petitioners.

Joaquin R Mitosis for private respondents.

AQUINO, J.:

In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul the orders
of respondent Judge dated May 3 trial June 17, 1968, wherein he reconsidered his order of January
10, 1968, dismissing, on the ground of prescription, the complaint in Civil Case No. 2233 of the Court
of First Instance of Sorsogon.

The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an estimated
value of P50,000, trial claims for damages exceeding one million pesos. The undisputed facts are as
follows:

1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years
old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as survived by his brother,
Leon Hitosis. His other brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and
only sister, Teodora, were all dead.

2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of
Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published. In that will,
Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas,
and, should Tecla predecease him, as was the case, his one-half share would be assigned to the
spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first
marriage, grew up under the care of Florentino; he had treated Pedro as his foster child, and Pedro
has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate properties
consisting of three parcels of abaca land and parcel of riceland to his protege (sasacuyang ataman),
Adolfo Fortajada, a minor.

3. Opposition to the probate of the will was registered by the testator's legal heirs, namely, his surviving
brother, Leon, trial his nephews trial nieces. After a hearing, wherein the oppositors did not present
any evidence in support of their opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939,
admitted the will to probate and appointed Gallanosa as executor. Judge Rivera specifically found that
the testator executed his last will "gozando de buena salud y facultades mentales y no obrando en
virtud de amenaza, fraude o influencia indebida."

4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo Fortajada,
submitted a project of partition covering sixty-one parcels of land located in various parts of Sorsogon,
large cattle trial several pieces of personal property which were distributed in accordance with
Florentino's will. The heirs assumed the obligations of the estate amounting to P7,129.27 in the portion
of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition
was approved by Judge Doroteo Amador in his order of March 13, 1943, thus confirming the heirs'
possession of their respective shares. The testator's legal heirs did not appeal from the decree of
probate trial from the order of partition trial distribution.

5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers trial sisters
instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the recovery
of the said sixty-one parcels of land. They alleged that they, by themselves or through their
predecessors-in-interest, had been in continuous possession of those lands en concepto de
dueño trial that Gallanosa entered those lands in 1951 trial asserted ownership over the lands. They
prayed that they be declared the owners of the lands trial that they be restored to the possession
thereof. They also claimed damages (Civil Case No. 696).

6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the ground of
bar by the prior judgment in the probate proceeding. Judge Anatolio C. Mañalac dismiss the complaint
on the ground of res judicatain his order of August 14, 1952 wherein he said:

It also appears that the plaintiffs and/or their predecessors-in-interest had intervened
in the testate proceedings in Civil Case No. 3171 of this Court for- the purpose of
contesting the probate of the will of (the) late Florentino Hitosis; trial had their
opposition prospered trial the will denied of probate, the proceedings would have been
converted into one of intestacy (Art. 960 Civil Code) and the settlement of the estate
of the said deceased would have been made in accordance with the provisions of law
governing legal or intestate succession ... , in which case the said plaintiffs, as the
nearest of kin or legal heirs of said Florentino Mitosis, would have succeeded to the
ownership and possession of the 61 parcels of land in question forming part of his
estate (art. 1003, Civil Code).

However, the derision of the Court was adverse to them, when it their opposition trial
ordered the probate of his will. From this decision (Annex K) legalizing the said will,
the oppositors did not file any appeal within the period fixed by law, despite the fact
that they were duly notified thereof, so that the said decision had become final trial it
now constitutes a bar to any action that the plaintiffs may institute for the purpose of a
redetermination of their rights to inherit the properties of the late Florentino Hitosis.
 In other words, the said decision of this Court in Civil Case special ) No. 3171, in which
the herein plaintiffs or their predecessors-in-interest had intervened as parties
oppositors, constitutes a final judicial determination of the issue that the said plaintiffs,
as ordinary heirs, have no legal rights to succeed to any of the properties of the late
Florentino Hitosis; consequently, their present claim to the ownership trial possession
of the 61 parcels of land in question is without any legal merit or basis.

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

8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud trial deceit,
caused the execution trial simulation of the document purporting to be the last will trial testament of
Florentino Hitosis. While in their 1952 complaint the game plaintiffs alleged that they were in
possession of the lands in question, in their 1967 complaint they admitted that since 1939, or from the
death of Florentino Hitosis, the defendants (now the petitioners) have been in possession of the
disputed lands (Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which was
transferred to Branch I in Sorsogon town where Special Proceeding No. 3171 trial Civil Case No. 696
were decided trial which was re-docketed as Civil Case No. 2233).

9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was
dismissed by respondent Judge. The plaintiffs filed a motion for reconsideration Respondent Judge.
granted it trial set aside the order of dismissal. He denied defendants' motion for the reconsideration
of his order setting aside that dismissal order.

The petitioners or the defendants below contend in this certiorari case that the lower court has no
jurisdiction to set aside the 1939 decree of probate trial the 1952 order of dismissal in Civil Case No.
696 trial that it acted with grave abuse of discretion in not dismissing private respondents' 1967
complaint.

The issue is whether, under the facts set forth above, the private respondents have a cause of action
the "annulment" of the will of Florentino Hitosis trial for the recovery of the sixty-one parcels of land
adjudicated under that will to the petitioners.

We hold that the lower court committed a grave abuse of discretion in reconsideration its order of
dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case No. 696 which is the
same as the instant 1967 case.

A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary lawyer to
conclude upon a causal perusal of the 1967 complaint that it is baseless trial unwarranted.

What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in 1939 by the
lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the
defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of
The complaint of the same parties that the same court dismissed in 1952.

It is evident from the allegations of the complaint trial from defendants' motion to dismiss that plaintiffs'
1967 action is barred by res judicata, a double-barrelled defense, trial by prescription, acquisitive trial
extinctive, or by what are known in the jus civile trial the jus gentium as usucapio, longi temporis
possesio and praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974, 61 SCRA 284).

Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may
take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The
probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules
of Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).

The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A
special proceeding is distinct trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec. 1,
Rule 72, Rules of Court).

We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967 complaint, is
a two-pronged defense because (1) the 1939 trial 1943 decrees of probate trial distribution in Special
Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil Case No. 696 of the lower court
constitute bars by former judgment, Rule 39 of the Rules of Court provides:

SEC. 49. Effect of judgments. — The effect of a judgment or final order rendered by a
court or judge of the Philippines, having jurisdiction to pronounce the judgment or
order, may be as follows:

(a) In case of a judgment or order against a specific thing, or in respect to the probate
of a will or the administration of the estate of a deceased person, or in respect to the
personal, political, or legal condition or status of a particular person or his relationship
to another, the judgment or order is conclusive upon the title to the thing the will or
administration, or the condition, status or relationship of the person; however, the
probate of a will or granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate;

(b) In other cases the judgment or order is, with respect to the matter directly adjudged
or as to any other matter that could have been raised in relation thereto, conclusive
between the parties trial their successors in interest by title subsequent to the
commencement of the action or special proceeding, litigating of the same thing trial
under the same title trial in the same capacity;

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

The 1939 decree of probate is conclusive as to the due execution or formal validity of the will (Sec.
625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).

That means that the testator was of sound trial disposing mind at the time when he executed the will
and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him
in the presence of the required number of witnesses, and that the will is genuine trial is not a forgery.
Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a
criminal action for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970 Edition, p.
395; Manahan vs. Manahan, 58 Phil. 448).

After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be
raised anymore (Santos vs. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after the
decree of probate had become final. That case is summarized as follows:

Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died. His will was admitted to
probate without objection. No appeal was taken from said order. It was admitted that
due trial legal notice had been given to all parties. Fifteen months after the date of said
order, a motion was presented in the lower court to have said will declared null and
void, for the reason that fraud had been practised upon the deceased in the making of
his will.

Held: That under section 625 of Act No. 190, the only time given parties who are
displeased with the order admitting to probate a will, for an appeal is the time given for
appeals in ordinary actions; but without deciding whether or not an order admitting a
will to probate will be opened for fraud, after the time allowed for an appeal has expired,
when no appeal is taken from an order probating a will, the heirs can not, in subsequent
litigation in the same proceedings, raise questions relating to its due execution. The
probate of a will is conclusive as to its due execution trial as to the testamentary
capacity of The testator. (See Austria vs. Heirs of Ventenilla. 99 Phil. 1069).

On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate proceeding
for the settlement of the estate of Florentino Hitosis, having been rendered in a proceeding in rem, is
under the abovequoted section 49(a), binding upon the whole world (Manalo vs. Paredes, 47 Phil.
938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs.
Hentry Reissmann & Co., 68 Phil. 142).

It is not only the 1939 probate proceeding that can be interposed as res judicata with respect to private
respondents' complaint, The 1952 order of dismissal rendered by Judge Mañalac in Civil Case No.
696, a judgment in personam was an adjudication on the merits (Sec. 4, Rule 30, old Rules of Court).
It constitutes a bar by former judgment under the aforequoted section 49(b) (Anticamara vs. Ong, L-
29689. April 14, 1978).

The plaintiffs or private respondents did not even bother to ask for the annulment of the testamentary
proceeding trial the proceeding in Civil Case No. 696. Obviously, they realized that the final
adjudications in those cases have the binding force of res judicata and that there is no ground, nor is
it timely, to ask for the nullification of the final orders trial judgments in those two cases.

It is a fundamental concept in the organization of every jural system, a principle of public policy, that,
at the risk of occasional errors, judgments of courts should become final at some definite date fixed
by law. Interest rei publicae ut finis sit litum. "The very object for which the courts were constituted was
to put an end to controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Peñalosa vs. Tuason,
22 Phil, 303; De la Cerna vs. Potot, supra).

After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court
has expired, a final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction
or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or collateral
fraud. In the latter case, the period for annulling the judgment is four years from the discovery of the
fraud (2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs. Villanueva,
106 Phil. 1159).

To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of plaintiffs'
counsel, held that the action for the recovery of the lands had not prescribed because the rule in article
1410 of the Civil Code, that "the action or defense for the declaration of the inexistence of
a contract does not prescribe", applies to wills.

That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial testaments. The trial
court trial plaintiffs' counsel relied upon the case of Dingle vs. Guillermo, 48 0. G. 4410, allegedly
decided by this Court, which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time
cannot give efficacy to void contracts, a ruling elevated to the category of a codal provision in article
1410. The Dingle case was decided by the Court of Appeals. Even the trial court did not take pains to
verify the misrepresentation of plaintiffs' counsel that the Dinglecase was decided by this Court. An
elementary knowledge of civil law could have alerted the trial court to the egregious error of plaintiffs'
counsel in arguing that article 1410 applies to wills.

WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial set aside trial
its order of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.

SO ORDERED.

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

Concepcion, Jr., J., is on leave.

Case Digest
FACTS
 Decedent and testator: Florentino Hitosis, died 26 May 1939
 Florentino, a childless widower, had, as his only heir, his brother Leon
 In his will, he left his half-share to his wife, Tecla; and if she predeceased
him (as she
did), the share would be assigned to the spouses Pedro Gallanosa and
Corazon Grecia,
because Pedro, Florentino’s stepson, had grown up under his care.
 He also left his separate properties, consisiting of three parcels of abaca
land and one
parcel of Riceland, to Adolfo Fortajada, a minor.
 1939 Jun: A petition for probate of the will was filed in the CFI Sorsogon.
The notice of
hearing was duly published.
 Leon and Florentino’s nephews and nieces opposed the probate. After a
hearing, where
the oppositors did not present evidence, the will was admitted to probate in
Oct 1939 and
Gallanosa was appointed executor. The judge found that the will was
executed while the
testator had “good health and mental faculties and not acting under threat,
fraud or undue
influence.”
 1941 Oct: The Gallanosa spouses and Fortajada submitted a project of
partition, which
was approved by the court. The legal heirs did not appeal from the decree
of probate or
the order of partition and distribution.
 1952 Feb: Leon and Florentino’s siblings’ heirs sued Gallanosa for the
recovery of the
parcels of land, alleging continuous possession in the concept of owners,
and that
Gallanosa entered the lands in 1951 and asserted ownership thereon. This
was dismissed
in Aug 1952 on res judicata—they had opposed the probate of the will
distributing the
properties but lost. From this order of dismissal they did not appeal.
 BUT in Sep 1967, they sued again, in the same court, to have Florentino’s
will annulled
and recover the properties. The basis of their complaint: the Gallanosa
spouses caused the
execution and simulation of the purported Last Will through fraud and
deceit. This time,
they said that the Gallanosas occupied the properties since Florentino’s
death in 1939.
 The judge dismissed the action, but, on MR, reversed, citing Art. 1410 (the
action or
defense for the declaration of the inexistence of a contract does not
prescribe) applies to
wills.
ISSUES & HOLDING
 Do the private respondents have a cause of action to “annul” Florentino’s
will and
recover the properties? – NO.
RATIO
Conclusiveness of probate decree
 What the plaintiffs seek is the “annulment” of a will duly probated in 1939 by
that same
court.
 It is clear the last action is barred by res judicata and by prescription.
 Our procedural laws do not sanction an action for “annulment” of a will.
 The defense of res judicata against the 1967 complaint is two-pronged
because there are
two bars by former judgment: the first, the decrees of probate and
distribution in the
special proceeding, and the second, the dismissal of the 1952 action.
 The 1939 decree of probate is conclusive as to the due execution or formal
validity of the
will. That means that:
 The testator was of sound and disposing mind when he executed the will
He was not acting under duress, menace, fraud, or undue influence
He signed the will in the presence of the required number of witnesses
The Will is genuine
 These facts cannot be again questioned in a subsequent proceeding, not
even in a criminal
action for forgery of the will.
 The decree of adjudication rendered in the testate proceedings, having
been rendered in a
proceeding in rem, is binding upon the whole world.
 Meanwhile, the 1952 order of dismissal, a judgment in personam and an
adjudication on
the merits, is binding upon private respondents.
 Art. 1410 cannot possibly apply to last wills and testaments.
8. G.R. No. L-20234 December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.

Philip M. Alo and Crispin M. Menchavez for petitioners.

Nicolas Jumapao for respondents.

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

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-
G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and
ordering the dismissal of an action for partition.

The factual background appears in the following portion of the decision of the Court of Appeals
(Petition, Annex A, pp. 2-4):

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that "our two
parcels of land acquired during our marriage together with all improvements thereon shall be
given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God
did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and
that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the
two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and
Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of
Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to
probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after
due publication as required by law and there being no opposition, heard the evidence, and, by
Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el documento
Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna con derecho
por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo segun el
Exhibit A de gozar de los frutos de los terranos descritos en dicho documents; y habido
consideracion de la cuantia de dichos bienes, se decreta la distribucion sumaria de los mismos
en favor de la logataria universal Manuela Rebaca de Potot previa prestacion por parte de la
misma de una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones
que se presentare contra los bienes del finado Bernabe de la Serna de los años desde esta
fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia
Rebaca on October 14, 1952, another petition for the probate of the same will insofar as
Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No.
1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela
R. Potot and her attorney, Manuel Potot to appear, for the hearing of said petition, the case
was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the Probate of the
Will of Gervasia Rebaca).

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

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of
First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his
last will and testament despite the fact that even then the Civil Code already decreed the invalidity of
joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the probate court was an error of law, that should have been
corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive
effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate
of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson,
39 Phil. 156); and public policy and sound practice demand that at the risk of occasional errors
judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis
set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the
Rules of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939
decree admitting his will to probate. The contention that being void the will cannot be validated,
overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here
they have spoken with finality when the will was probated in 1939. On this court, the dismissal of their
action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that
the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna.
It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive,
and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely
because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a
will could not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be,
on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of
each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one
prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties
in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144,
that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make
them valid when our Civil Codes consistently invalidated them, because laws are only repealed by
other subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5, Civ.
Code of 1889; Art. 7, Civil Code of the Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No.
23763-R is affirmed. No Costs.

Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal, Bengzon,
J.P., and Zaldivar, JJ., concur.

Case Digest
FACTS:
Spouses Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and testament
whereby they willed that their two parcels of land acquired during their marriage together with all
improvements thereon shall be given to Manuela Rebaca, their niece. Bernabe died and the will was
probated in 1939 after due publication as required by law and there being no opposition. Upon the
death of Gervasia Rebaca, another petition for the probate of the same will insofar as Gervasia was
concerned was filed by Manuela but the court dismissed it for failure of Manuela to appear.
Paula de la Cerna questioned for the nullity of the joint will of Bernabe being prohibited in the Philippine
law. The Court of First Instance ordered the petition heard and declared the testament null and void,
for being executed contrary to the prohibition of joint wills in the Civil Code but on appeal by the
testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939
was issued by a court of probate jurisdiction and conclusive on the due execution of the testament.
Hence, this appeal.

ISSUES:
1. Whether or not an error of law affects the conclusive effect of its decision.
2. Whether or not the joint will is valid as to the share of Gervasia who died later than Bernabe.

RULING:
The appealed decision correctly held that the final decree of probate, entered in 1939 by the
Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect
as to his last will and testament despite the fact that even then the Civil Code already decreed the
invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party
(Art. 669, old Civil Code). A final judgment rendered on a petition for the probate of a will is binding
upon the whole world.
The probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It could
not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose
interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate
could not then be in issue. Be it remembered that prior to the new Civil Code, a will could not be probated
during the testator's lifetime. It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a
separate will of each testator. Therefore, the undivided interest of Gervasia Rebaca should pass upon her death
to her heirs‘ intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said Gervasia.
9. G.R. No. L-20374 October 11, 1923

In re of Dolores Coronel, deceased.

LORENZO PECSON, applicant-appellee,
vs.
AGUSTIN CORONEL, ET AL., opponents-appellants.

Fisher, DeWitt, Perkins and Brady for appellants.

Ross and Lawrence and Guillermo Lualhati for appellee.

ROMUALDEZ, J.:

On November 28, 1922, the Court of First Instance of Pampanga probated as the last will and
testament of Dolores Coronel, the document Exhibit A, which translated is as follows:

In the name of God, Amen:

I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the full
exercise of my mental faculties, do hereby make my last will and testament, and revoke all
former wills by me executed.

I direct and order that my body be buried in conformity with my social standing.

That having no forced heirs, I will all my properties, both movable and immovable, to my
nephew, Lorenzo Pecson, who is married to my niece Angela Coronel, in consideration of the
good services with he has rendered, and is rendering to me with good will and
disinterestedness and to my full satisfaction.

I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and
ordained in this my will, without bond. Should he not be able to discharge his duties as such
executor for any reason whatsoever, I name and appoint as substitute executor my grandson
Victor Pecson, a native and resident of the town of Betis, without requiring him to give bond. 1awph!l.net

All my real and paraphernal property as well as my credits for I declare that I have no debts,
are specified in an inventory.

In testimony whereof and as I do not know how to write my name, I have requested Vicente J.
Francisco to write my name at the foot hereof and on the left margin of each of its sheet before
me and all the undersigned witnesses this July 1, 1918.

VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel

The foregoing document was executed and declared by Dolores Coronel to be her last will and
testament in our presence, and as the testatrix does not know how to write her name, she
requested Vicente J. Francisco to sign her name under her express direction in our presence,
at the foot, and on the left margin of each and every sheet, hereof. In testimony whereof, each
of us signed these presents in the presence of others and of the testatrix at the foot hereof and
 on the margin of each and everyone of the two sheets of which this document is composed,
which are numbered "one" and "two" on the upper part of the face thereof.

(Sgd.) "MAXIMO VERGARA SOTERO DUMAUAL MARCOS DE LOS

SANTOS

MARIANO L. CRISOSTOMO PABLO BARTOLOME MARCOS DE

LA CRUZ DAMIAN CRISOSTOMO

On the left margin of the two sheets of the will the following signatures also appear:

Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel, M. Vergara,
Pablo Bartolome, Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos de los Santos.

The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel, who is a niece
of the deceased Dolores Coronel.

The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow of the
deceased Macario Gozum, in her own behalf and that of her three minor children, Hilarion Coronel,
Geronimo Coronel, Maria Coronel and her husband Eladio Gongco, Juana Bituin, widow of the
deceased Hipolito Coronel, in her own behalf and that of her three children, Generosa, Maria, and
Jose, all minors, Rosario Coronel, Agustin Coronel, Filomeno Coronel, Casimiro Coronel, Alejo
Coronel, Maria Coronel, Severina Coronel, Serapia Coronel, Maria Juana de Ocampo, widow of the
deceased Manuel Coronel, Dionisia Coronel, and her husband Pantaleon Gunlao.

The probate of this will is impugned on the following grounds: (a) That the proof does not that the
document Exhibit A above copied contains the last will of Dolores Coronel, and (b) that the attestation
clause is not in accordance with the provisions of section 618 of the Code of Civil Procedure, as
amended by Act No. 2645.

These are the two principal questions which are debated in this case and which we will now examine
separately.

As to the first, which is the one raised in the first assignment of error, the appellants argue: First, that
it was improbable and exceptional that Dolores Coronel should dispose of her estate, as set forth in
the document Exhibit A, her true being that the same be distributed among her blood relatives; and
second, that if such will not expressed in fact, it was due to extraneous illegal influence.

Let us examine the first point.

The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not natural
nor usual that she should completely exclude her blood relatives from her vast estate, in order to will
the same to one who is only a relative by affinity, there appearing no sufficient motive for such
exclusion, inasmuch as until the death of Dolores Coronel, she maintained very cordial relations with
the aforesaid relatives who had helped her in the management and direction of her lands. It appears,
however, from the testimony of Attorney Francisco (page 71, transcript of the stenographic notes) that
Dolores Coronel revealed to him her suspicion against some of her nephews as having been
accomplices in a robbery of which she had been a victim.
As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the opponents admit that
he rendered them at least from the year 1914, although there is proof showing that he rendered such
services long before that time.

The appellants emphasize the fact that family ties in this country are very strongly knit and that the
exclusion of relative one's estate an exceptional case. It is true that ties of relationship in the
Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance
are not rare. The liberty to dispose of one's estate by will when there are no forced heirs is rendered
sacred by the civil Code in force in the Philippines since 1889. It is so provided in the first paragraph
of article in the following terms:

Any person who was no forced heirs may dispose by will of all his property or any part of it in
favor of any person qualified to acquire it.

Even ignoring the precedents of this legal precept, the Code embodying it has been in force in the
Philippines for more than a quarter of a century, and for this reason it is not tenable to say that the
excercise of the liberty thereby granted is necessarily exceptional, where it is not shown that the
inhabitants of this country whose customs must have been take into consideration by the legislator in
adopting this legal precept, are averse to such a liberty.

As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of the
moment. The proof adduced by this appelle, although contradicted, shows by a preponderance of
evidence that besides the services which the opponents admit had been rendered by him to Dolores
Coronel since the year 1914, he had also rendered services prior to that time and was the administrator
and manager of the affairs of said Dolores in the last years of her life. And that this was not a whim of
the moment is shown by the fact that six years before the execution of the will in question, said Lorenzo
Pecson was named and appointed by Dolores Coronel as her sole heir in the document Exhibit B,
which, translated, is as follows:

1. That my present property was acquired by me by inheritance from my parents, but a great
part thereof was acquired by me by my own efforts and exertions;

2. That I have made no inventory of my properties, but they can be seen in the title deeds in
my possession and in the declarations of ownership;

3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known resident of the
town, my heir to succeed to all my properties;

4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default, Victor Pecson,
a resident of the same town;

5. That as to my burial and other things connected with the eternal rest of my soul, I leave
them to the sound direction of the aforesaid Lorenzo Pecson;

6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town, to
write this will in accordance with my wishes and precise instructions.

In testimony whereof I had the said Martin Pangilinan write my name and surname, and affixed
my mark between my name and surname, and don Francisco Dumaual, Don Mariano Sunglao,
Don Sotero Dumaual, Don Marcos de la Cruz and Don Martin Pangilinan signed as witnesses,
 they having been present at the beginning of, during, and after, the execution of this my last
will.

(Sgd.) "DOLORES CORONEL

Witnesses:

(Sgd.) "MARIANO SUNGLAO

MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"

The appellants find in the testament Exhibit B something to support their contention that the intention
of Dolores Coronel was to institute the said Pecson not as sole beneficiary, but simply as executor
and distributor of all her estate among her heirs, for while Lorenzo Pecson's contention that he was
appointed sold beneficiary is based on the fact that he enjoyed the confidence of Dolores Coronel in
1918 and administered all her property, he did not exclusively have this confidence and administration
in the year 1912. Although such administration and confidence were enjoyed by Pecson always jointly
with others and never exclusively, this fact does not show that the will of the testatrix was to appoint
Pecson only as executor and distributor of her estate among the heirs, nor does it prevent her, the
testatrix, from instituting him in 1912 or 1918 as sole beneficiary; nor does it constitute, lastly, a test
for determining whether or not such institution in favor of Pecson was the true will of the testatrix.

We find, therefore, nothing strange in the preterition made by Dolores Coronel of her blood relatives,
nor in the designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although the institution
of the beneficiary here would not seem the most usual and customary, still this would not be null per
se.

In the absence of any statutory restriction every person possesses absolute dominion over his
property, and may bestow it upon whomsoever he pleases without regard to natural or legal
claim upon his bounty. If the testator possesses the requisite capacity to make a will, and the
disposition of his property is not affected by fraud of undue influence, the will is not rendered
invalid by the fact that it is unnatural, unreasonable, or unjust. Nothing can prevent the testator
from making a will as eccentric, as injudicious, or as unjust as caprice, frivolity, or revenge can
dictate. However, as has already been shown, the unreasonable or unjustice of a will may be
considered on the question of testamentary capacity. (40 Cyc., 1079.)

The testamentary capacity of Dolores Coronel is not disputed in this case.

Passing to the second question, to wit, whether or not the true last will of Dolores Coronel was
expressed in the testament Exhibit A, we will begin with expounding how the idea of making the
aforesaid will here controverted was borne and carried out.

About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney Francisco who was
then her legal adviser and who, considering that in order to make the expression of her last will more
legally valid, though it necessary that the statement be prepared in conformity with the laws in force
at time of the death of the testatrix, and observing that the will Exhibit B lacked the extrinsic formalities
required by Act No. 2645 enacted after its execution, advised Dolores Coronel that the will be remade.
She followed the advice, and Attorney Francisco, after receiving her instructions, drew the will Exhibit
A in accordance therewith, and brought it to the house of Dolores Coronel for its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the witnesses and
asked her whether the will was in accordance with her wishes. Dolores Coronel answer that it was,
and requested her attorney, Mr. Francisco, to sign the will for her, which the attorney accordingly did
in the presence of the witnesses, who in turn signed it before the testatrix and in the presence of each
other.

Upon the filing of the motion for a rehearing on the first order allowing the probate of the will, the
opponents presented an affidavit of Pablo Bartolome to the effect that, following instructions of Lorenzo
Pecson, he had informed the testatrix that the contents of the will were that she entrusted Pecson with
the distribution of all her property among the relatives of the said Dolores. But during the new trial
Pablo Bartolome, in spite of being present in the court room on the day of the trial, was not introduced
as a witness, without such an omission having been satisfactorily accounted for.

While it is true that the petitioner was bound to present Pablo Bartolome, being one of the witnesses
who signed the will, at the second hearing when the probate was controverted, yet we cannot consider
this point against the appellee for this was not raised in any of the assignments of error made by the
appellants. (Art. 20, Rules of the Supreme Court.)

On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to prove before
the court the statement by him in his affidavit, since it was their duty to prove what they alleged, which
was that Dolores Coronel had not understood the true contents of the will Exhibit A. Having
suppressed, without explanation, the testimony of Pablo Bartolome, the presumption is against the
opponents and that is, that such a testimony would have been adverse had it been produced at the
hearing of the case before the court. (Sec 334, subsec. 5, Code of Civil Procedure.)

The opponents call our attention to the fourth clause of the document which says: "I name and appoint
my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my will,
without bond. Should he not be able to discharge his duties as such executor for any reason
whatsoever, I name and appoint as a substitute executor my grandson Victor Pecson, resident of the
town of Betis, without requiring him to give bond," and contend that this clause is repugnant to the
institution of Lorenzo Pecson as sole beneficiary of all her estate, for if such was the intention of the
testatrix, there would have been no necessity of appointing an executor, nor any reason for designating
a substitute in case that the first one should not be able to discharge his duties, and they perceived in
this clause the idea which, according to them, was not expressed in the document, and which was
that Pecson was simply to be a mere executor entrusted with the distribution to the estate among the
relatives of the testatrix, and that should he not be able to do so, this duty would devolved upon his
substitutes.

But it is not the sole duty of an executor to distribute the estate, which in estate succession, such as
the instant case, has to be distributed with the intervention of the court. All executor has, besides,
other duties and general and special powers intended for the preservation, defense, and liquidation of
the estate so long as the same has not reached, by order of the court, the hands of those entitled
thereto.

The fact that Dolores Coronel foresaw the necessity of an executor does not imply a negation of her
desire to will all her estate to Lorenzo Pecson. It is to be noted, furthermore, that in the will, it was
ordered that her body be given a burial in accordance with her social standing and she had a perfect
right to designate a person who should see to it that this order was complied with. One of the functions
of an executor is the fulfillment of what is ordained in the will.

It is argued that the will of the testatrix was to will her estate to her blood relatives, for such was the
promise made to Maria Coronel, whom Rosario Coronel tends to corroborate. We do not find such a
promise to have been sufficiently proven, and much less to have been seriously made and coupled
with a positive intention on the part of Dolores Coronel to fulfill the same. In the absence of sufficient
proof of fraud, or undue influence, we cannot take such a promise into account, for even if such a
promise was in fact made, Dolores Coronel could retract or forget it afterwards and dispose of her
estate as she pleased. Wills themselves, which contain more than mere promises, are essentially
revocable.

It is said that the true will of Dolores Coronel not expressed in the will can be inferred from the phrase
used by Jose M. Reyes in his deposition when speaking of the purpose for which Lorenzo Pecson
was to receive the estate, to wit:

in order that the latter might dispose of the estate in the most appropriate manner

Weight is given to this phrase from the circumstance that its author was requested by Attorney
Francisco to explain the contents of Exhibit B and had acted as interpreter between Dolores Coronel
and Attorney Francisco at their interviews previous to the preparation of Exhibit A, and had translated
into the Pampango dialect this last document, and, lastly, was present at the execution of the will in
question.

The disputed phrase "in order that the latter might dispose of the estate in the most appropriate
manner" was used by the witness Reyes while sick in a hospital and testifying in the course of the
taking of his deposition.

The appellants interpret the expression "dispose in the most appropriate manner" as meaning to say
"distribute it among the heirs." Limiting ourselves to its meaning, the expression is a broad one, for the
disposition may be effected in several and various ways, which may not necessarily be a "distribution
among the heirs," and still be a "disposition in the most appropriate manner." "To dispose" is not the
same as "to distribute."

To judge correctly the import of this phrase, the circumstances under which it was used must be taken
into account in this particular instance. The witness Reyes, the author of the phrase, was not
expressing his own original ideas when he used it, but was translating into Spanish what Dolores
Coronel had told him. According to the facts, the said witness is not a Spaniard, that is to say, the
Spanish language is not his native tongue, but, perhaps, the Pampango dialect. It is an admitted fact
based on reason and experience that when a person translates from one language to another, it is
easier for him to express with precision and accuracy when the version is from a foreign language to
a native one than vice-versa. The witness Reyes translated from the Pampango dialect, which must
be more familiar to him, to the Spanish language which is not his own tongue. And judging from the
language used by him during his testimony in this case, it cannot be said that this witness masters the
Spanish language. Thus is explained the fact that when asked to give the reason for the appointment
of an executor in the will, he should say at the morning session that "Dolores Coronel did appoint Don
Lorenzo Pecson and in his default, Victor Pecson, to act during her lifetime, but not after he
death," which was explained at the afternoon session by saying "that Dolores Coronel did appoint Don
Lorenzo Pecson executor of all her estate during his lifetime and that in his default, either through
death or incapacity, Mr. Victor Pecson was appointed executor." Taking into account all the
circumstances of this witness, there is ground to attribute his inaccuracy as to the discharge of the
duties of an executor, not to ignorance of the elementary rule of law on the matter, for the practice of
which he was qualified, but to a non-mastery of the Spanish language. We find in this detail of
translation made by the witness Reyes no sufficient reason to believe that the will expressed by
Dolores Coronel at the said interview with Attorney Francisco was to appoint Lorenzo Pecson executor
and mere distributor of her estate among her heirs.
As to whether or not the burden of proof was on the petitioner to establish that he was the sole legatee
to the exclusion of the relatives of Dolores Coronel, we understand that it was not his duty to show the
reasons which the testatrix may have had for excluding her relatives from her estate, giving preference
to him. His duty was to prove that the will was voluntary and authentic and he, who alleges that the
estate was willed to another, has the burden of proving his allegation.

Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson
appear in the will as sole beneficiary. However, after an examination of all the proceedings had, we
cannot find anything in the behavior of this lawyer, relative to the preparation and execution of the will,
that would justify an unfavorable conclusion as to his personal and professional conduct, nor that he
should harbor any wrongful or fraudulent purpose.

We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other than
the last one, Exhibit B (in the drawing of which he does not appear to her intervened), so that the
instrument might be executed with all the new formalities required by the laws then in force; nor in the
preparation of the new will substantially in accordance with the old one; nor in the selection of attesting
witnesses who were persons other than the relatives of Dolores Coronel. Knowing, as he did, that
Dolores was excluding her blood relatives from the inheritance, in spite of her having been asked by
him whether their exclusion was due to a mere inadvertence, there is a satisfactory explanation,
compatible with honorable conduct, why said attorney should prescind from such relatives in the
attesting of the will, to the end that no obstacle be placed in the way to the probating thereof.

The fact that this attorney should presume that Dolores was to ask him to sign the will for her and that
he should prepare it containing this detail is not in itself fraudulent. There was in this case reason so
to presume, and it appears that he asked her, through Pablo Bartolome, whom she wanted to sign the
document in her stead.

No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in the will,
because the latter was already his client at the execution of said will. Attorney Francisco denied this
fact, which we cannot consider proven after examining the evidence.

The conduct observed by this attorney after the death of Dolores Coronel in connection with the
attempted arrangement between Lorenzo Pecson and the opponents, does not, in our opinion,
constitute any data leading to the conclusion that an heir different from the true one intended by the
testatrix should have been fraudulently made to appear instituted in the will exhibit A. His attitude
towards the opponents, as can be gathered from the proceedings and especially from his letter Exhibit
D, does not show any perverse or fraudulent intent, but rather a conciliatory purpose. It is said that
such a step was well calculated to prevent every possible opposition to the probate of the will. Even
admitting that one of his objects in entering into such negotiations was to avoid every possible to the
probate of the will, such object is not incompatible with good faith, nor does it necessarily justify the
inference that the heir instituted in the instrument was not the one whom the testatrix wanted
appointed.

The appellants find rather suspicious the interest shown by the said attorney in trying to persuade
Lorenzo Pecson to give them some share of the estate. These negotiations were not carried out by
the attorney out of his own initiative, but at the instance of the same opponent, Agustin Coronel, made
by the latter in his own behalf and that of his coopponents.

As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he should have tried,
through fraud or any undue influence, to frustrate the alleged intention of the testatrix to leave her
estate to her blood relatives. The opponents insinuate that Lorenzo Pecson employed Attorney
Francisco to carry out his reproachable designs, but such depraved instrumentality was not proven,
nor was it shown that said lawyer, or Lorenzo Pecson, should have contrived or put into execution any
condemnable plan, nor that both should have conspired for illegal purposes at the time of the
preparation and execution of the will Exhibit A.

Although Norberto Paras testified having heard, when the will was being read to Dolores Coronel, the
provision whereby the estate was ordered distributed among the heirs, the preponderance of the
evidence is to the effect that said Norberto Paras was not present at such reading of the will. Appellant
do not insist on the probative force of the testimony of this witness, and do not oppose its being stricken
out.

The data furnished by the case do not show, to our mind, that Dolores Coronel should have had the
intention of giving her estate to her blood relatives instead of to Lorenzo Pecson at the time of the
execution of the will Exhibit A, nor that fraud or whatever other illegal cause or undue influence should
have intervened in the execution of said testament. Neither fraud nor evil is presumed and the record
does not show either.

Turning to the second assignment of error, which is made to consist in the will having been probated
in spite of the fact that the attestation clause was not in conformity with the provision of section 618 of
the Code of Civil Procedure, as amended by Act No. 2645, let us examine the tenor of such clause
which literally is as follows:

The foregoing document was executed and declared by Dolores Coronel to be her last will
testament in our presence, and as testatrix does not know how to write her name, she
requested Vicente J. Francisco to sign her name under her express direction in our presence
at the foot and on the left margin of each and every sheet hereof. In testimony whereof, each
of us signed these presents in the presence of others of the testatrix at the foot hereof and on
the margin of each and everyone of the two pages of which this document is composed. These
sheets are numbered correlatively with the words "one and "two on the upper part of the face
thereof.

(Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los Santos, Mariano L.

Crisostomo, Pablo Bartolome, Marcos de la Cruz, Damian Crisostomo."

Appellants remark that it is not stated in this clause that the will was signed by the witnesses in the
presence of the testatrix and of each other, as required by section 618 of the Code of Civil Procedure,
as amended, which on this particular point provides the following:

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.

Stress is laid on the phrase used in the attestation clause above copied, to wit:

each of us signed in the presence of others.

Two interpretations can absolutely be given here to the expression "of others." One, that insinuated
by the appellants, namely, that it is equivalent to "of other persons," and the other, that contended by
the appellee, to wit, that the phrase should be held to mean "of the others," the article "the" having
inadvertently been omitted.
Should the first interpretation prevail and "other persons" be taken to mean persons different from the
attesting witnesses, then one of the solemnities required by law would be lacking. Should the second
be adopted and "of others" construed as meaning the other witnesses to the will, then the law would
have been complied with in this respect.

Including the concomitant words, the controverted phrase results thus: "each of us signed these
presents in the presence of others and of the testatrix."

If we should omit the words "of others and," the expression would be reduced to "each of us signed
these presents in the presence of the testatrix," and the statement that the witnesses signed each in
the presence of the others would be lacking. But as a matter of fact, these words "of others and" are
present. Then, what for are they there? Is it to say that the witnesses signed in the presence of other
persons foreign to the execution of the will, which is completely useless and to no purpose in the case,
or was it for some useful, rational, necessary object, such as that of making it appear that the witnesses
signed the will each in the presence of the others? The first theory presupposes that the one who drew
the will, who is Attorney Francisco, was an unreasonable man, which is an inadmissible hypothesis,
being repugnant to the facts shown by the record. The second theory is the most obvious, logical and
reasonable under the circumstances. It is true that the expression proved to be deficient. The
deficiency may have been caused by the drawer of the will or by the typist. If by the typist, then it must
be presumed to have been merely accidental. If by the drawer, it is explainable taking into account
that Spanish is not only not the native language of the Filipinos, who, in general, still speak until
nowadays their own dialects, but also that such language is not even the only official language since
several years ago.

In Re will of Abangan (40 Phil., 476), this court said:

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

We believe it to be more reasonable to construe the disputed phrase "of others" as meaning "of the
other witnesses," and that a grammatical or clerical error was committed consisting in the omission of
the article "the".

Grammatical or clerical errors are not usually considered of vital importance when the intention is
manifest in the will.

The court may correct clerical mistakes in writing, and disregard technical rules of grammar
as to the construction of the language of the will when it becomes necessary for it to do so in
order to effectuate the testators manifest intention as ascertained from the context of the will.
But unless a different construction is so required the ordinary rules of grammar should be
adhered to in construing the will. (40 Cyc., 1404).

And we understand that in the present case the interpretation we adopt is imperative, being the most
adequate and reasonable.
The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided by this court
and invoked by the appellants, refers so far as pertinent to the point herein at issue, to an attestation
clause wherein the statement that the witnesses signed the will in the presence of each other is totally
absent. In the case at bar, there is the expression "in the presence of others" whose reasonable
interpretation is, as we have said, "in the presence of the other witnesses." We do not find any party
between the present case and that of Re Estate of Geronima Uy Coque above cited.

Finally, we will take up the question submitted by the opponents as to the alleged insufficiency of the
evidence to show that the attesting witnesses Damian Crisostomo and Sotero Dumaual were present
at the execution of the will in controversy. Although this point is raised in the first assignment of error
made by the appellants, and not in the second, it is discussed in this place because it refers to the
very fact of attestation. However, we do not believe it necessary to analyze in detail the evidence of
both parties on this particular point. The evidence leads us to the conclusion that the two witnesses
aforementioned were present at the execution and signing of the will. Such is also the conclusion of
the trial judge who, in this respect, states the following, in his decision:

As to the question of whether or not the testatrix and witnesses signed the document Exhibit A in
accordance with the provisions of law on the matter, that is, whether or not the testatrix signed the will,
or caused it to be signed, in the presence of the witnesses, and the latter in turn signed in her presence
and that of each other, the court, after observing the demeanor of the witnesses for both parties, is of
the opinion that those for the petitioner spoke the truth. It is neither probable nor likely that a man
versed in the law, such as Attorney Francisco, who was present at the execution of the will in question,
and to whose conscientiousness in the matter of compliance with all the extrinsic formalities of the
execution of a will, and to nothing else, was due the fact that the testatrix had cancelled her former will
(Exhibit B) and had new one (Exhibit A) prepared and executed, should have consented the omission
of formality compliance with which would have required little or no effort; namely, that of seeing to it
that the testatrix and the attesting witnesses were all present when their respective signatures were
affixed to the will." And the record does not furnish us sufficient ground for deviating from the line
reasoning and findings of the trial judge.

In conclusion we hold that the assignments of error made by the appellants are not supported by the
evidence of record.

The judgment appealed from if affirmed with costs against the appellants. So ordered.

Araullo, C.J., Johnson, Street, Malcolm, Avanceña, Villamor and Johns, JJ., concur.

Case Digest
FACTS:
Dolores Coronel, a resident of Pampanga executed her last will and testament whereby
having no forced heirs, willed to her nephew, Lorenzo Pecson, who is married to her niece Angela
Coronel, her properties, both movable and immovable, in consideration of the good services he has
rendered to the former. Further, Dolores also appointed Lorenzo Pecson executor of all that is willed
and ordained in her will, without bond and in his default, she appointed as substitute executor her
grandson Victor Pecson. As the testatrix does not know how to write her name, she requested Vicente
J. Francisco to sign her name under her express direction in the presence of the witnesses and the
witnesses do the same. The petitioner for the probate of the will is Lorenzo Pecson, and the
opponents are Eriberto Coronel et al, blood relatives of the testatrix who contend that it was not, nor
could it be, the will of the testatrix, because it is not natural nor usual that she should completely
exclude her blood relatives from her vast estate.
Issue:
Whether or not there was an undue influence in appointing Lorenzo Pecson and not the blood
relatives as the beneficiary of the estate of the testatrix.
HELD:

There was no undue influence in appointing Lorenzo Pecson as the beneficiary of the estate
of the testatrix. The liberty to dispose of one’s estate by will when there are no forced heirs is
rendered sacred by the Civil Code in force in the Philippines since 1889. It is so provided in the first
paragraphof Article 763 (now Art. 842). As to Lorenzo Pecson, we do not find in the record sufficient
proof to believe that he should have tried, through fraud or any undue influence, to frustrate the
alleged intention of the testatrix to leave her estate to her blood relatives. Further, the preference
given to Lorenzo Pecson is not purely arbitrary, nor a caprice or a whim of the moment. The proof
adduced by this appelle, although contradicted, shows by a preponderance of evidence that besides
the services which the opponents admit had been rendered by him to Dolores Coronel since the year
1914, he had also rendered services prior to that time and was the administrator and manager of the
affairs of said Dolores in the last years of her life.
10. G.R. No. L-25966 November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES, special
administrator, and LUZ LOPEZ DE BUENO, heir, appellee,
vs.
MARGARITA LOPEZ, opponent-appellant.

Marcaida, Capili and Ocampo and Camus, Delgado and Recto for appellant.
Araneta and Zaragoza for appellee.

STREET, J.:

This appeal involves a controversy over one-half of the estate of Tomas Rodriguez, decedent. The
appellant, Margarita Lopez, claims said half by the intestate succession as next of kin and nearest
heir; while the appellee, Luz Lopez de Bueno, claims the same by accredition and in the character of
universal heir the will of the decedent. The trial court decided the point of controversy in favor of Luz
Lopez de Bueno, and Margariat Lopez appealed.

The facts necessary to an understanding of the case are these: On January 3, 1924, Tomas Rodriguez
executed his last will and testament, in the second clause of which he declared:

I institute as the only and universal heirs to all my property, my cousin Vicente F. Lopez and
his daughter Luz Lopez de Bueno.

Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judicially declared
incapable of taking care of himself and had been placed under the care of his cousin Vicente F. Lopez,
as guardian. On January 7, 1924, or only four days after the will above-mentioned was made, Vicente
F. Lopez died; and the testator, Tomas Rodriguez, died on February 25, 1924, thereafter. At the time
the will was made Vicente F. Lopez had not presented his final accounts as guardian, and no such
accounts had been presented by him at the time of his death. Margariat Lopez was a cousin and
nearest relative of the decedent. The will referred to, and after having been contested, has been
admitted to probate by judicial determination (Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772).

Our discussion of the legal problem presented should begin with article 753 of the Civil Code which in
effect declares that, with certain exceptions in favor of near relatives, no testamentary provision shall
be valid when made by a ward in favor of his guardian before the final accounts of the latter have been
approved. This provision is of undoubted application to the situation before us; and the provision made
in the will of Tomas Rodriguez in favor of Vicente F. Lopez was not any general incapacity on his part,
but a special incapacity due to the accidental relation of guardian and ward existing between the
parties.

We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared, in
effect, that accretion take place in a testamentary succession, first when the two or more persons are
called to the same inheritance or the same portion thereof without special designation of shares; and
secondly, when one of the persons so called dies before the testator or renounces the inheritance or
is disqualifying to receive it. In the case before us we have a will calling Vicente F. Lopez and his
daughter, Luz Lopez de Bueno, to the same inheritance without special designation of shares. In
addition to this, one of the persons named as heir has predeceased the testator, this person being
also disqualified to receive the estate even if he had been alive at the time of the testator's death. This
article (982) is therefore also of exact application to the case in hand; and its effect is to give to the
survivor, Luz Lopez de Bueno, not only the undivided half which she would have received in
conjunction with her father if he had been alive and qualified to take, but also the half which pertained
to him. There was no error whatever, therefore, in the order of the trial court declaring Luz Lopez de
Bueno entitled to the whole estate.

The argument in favor of the appellant supposes that there has supervened a partial intestacy with
respect to the half of the estate which was intended for Vicente F. Lopez and that this half has
descended to the appellant, Margarita Lopez, as next of kin and sole heir at law of the decedent. In
this connection attention is directed to article 764 of the Civil Code wherein it is declared, among other
things, that a will may be valid even though the person instituted as heir is disqualified to inherit. Our
attention is next invited to article 912 wherein it is declared, among other things, that legal succession
takes place if the heir dies before the testator and also when the heir instituted is disqualified to
succeed. Upon these provisions an argument is planted conducting to the conclusion that the will of
Tomas Rodriguez was valid, notwithstanding the fact that one of the individuals named as heirs in the
will was disqualified to take, and that as a consequence Margarita Lopez s entitled to inherit the share
of said disqualified heir.

We are the opinion that this contention is untenable and that the appellee clearly has the better right.
In playing the provisions of the Code it is the duty of the court to harmonize its provisions as far as
possible, giving due effect to all; and in case of conflict between two provisions the more general is to
be considered as being limited by the more specific. As between articles 912 and 983, it is obvious
that the former is the more general of the two, dealing, as it does, with the general topic of intestate
succession while the latter is more specific, defining the particular conditions under which accretion
takes place. In case of conflict, therefore, the provisions of the former article must be considered
limited by the latter. Indeed, in subsection 3 of article 912 the provision with respect to intestate
succession is expressly subordinated to article 983 by the expression "and (if) there is no right of
accretion." It is true that the same express qualification is not found in subsection 4 of article 912, yet
it must be so understood, in view of the rule of interpretation above referred to, by which the more
specific is held to control the general. Besides, this interpretation supplies the only possible means of
harmonizing the two provisions. In addition to this, article 986 of the Civil Code affords independent
proof that intestate succession to a vacant portion can only occur when accretion is impossible.

The attorneys for the appellant direct attention to the fact that, under paragraph 4 of article 912,
intestate succession occurs when the heir instituted is disqualified to succeed (incapaz de suceder),
while, under the last provision in paragraph 2 of article 982, accretion occurs when one of the persons
called to inherit under the will is disqualified to receive the inheritance (incapaz de recibirla). A
distinction is then drawn between incapacity to succeed and incapacity to take, and it is contended
that the disability of Vicente F. Lopez was such as to bring the case under article 912 rather than 982.
We are of the opinion that the case cannot be made to turn upon so refined an interpretation of the
language of the Code, and at any rate the disability to which Vicente F. Lopez was subject was not a
general disability to succeed but an accidental incapacity to receive the legacy, a consideration which
makes a case for accretion rather than for intestate succession.

The opinions of the commentators, so far as they have expressed themselves on the subject, tend to
the conclusion that the right of accretion with regard to portions of an inheritance left vacant by the
death or disqualification of one of the heirs or his renunciation of the inheritance is governed by article
912, without being limited, to the extent supposed in appellant's brief, by provisions of the Code relative
to intestate succession (Manresa, Comentarios al Codigo Civil Español, 4th ed., vol. VII, pp. 310, 311;
id., 34; 13 Mucius Scaevola, pp. 372, 373, 285-287; 16 Mucius Scaevola, 186). Says Escriche: "It is
to be understood that one of the coheirs or colegatees fails if nonexistent at the time of the making of
the will, or he renounces the inheritance or legacy, if he dies before the testator, if the condition be not
fulfilled, or if he becomes otherwise incapacitated. . . . (Diccionario de Legislacion y Jurisprudencia,
vol. I, p. 225.)
lawphil.net

In conclusion it may be worth observing that there has always existed both in the civil and in the
common law a certain legal intendment, amounting to a mild presumption, against partial intestacy. In
Roman law, as is well known, partial testacy systems a presumption against it, — a presumption which
has its basis in the supposed intention of the testator.

The judgment appealed from will be affirmed, and it is so ordered, with costs against the appellant.

Avanceña, C, J., Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

Case Digest
FACTS:
Tomas Rodriguez died in the City of Manila Philippine Islands. On February 25, 1924, leaving a
considerable estate. Shortly thereafter Manuel Torres, one of the executors named in the will asked that
the will of Rodriguez be allowed. Opposition was entered by Margarita Lopez, the first cousin of the
deceased on the grounds:
ISSUES:
That the testator lacked mental capacity because at the time of senile dementia and was under
guardianship; (2) that undue influence had been exercised by the persons benefited in the document in
conjunction with others who acted in their behalf; and (3) that the signature of Tomas Rodriguez to the
document was obtained through fraud and deceit.
RULING/DISCUSSION ON THE FACTS:

I. TESTAMENTARY CAPACITY

For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His breakdown was
undoubtedly due to organic weakness, to advancing years and to an accident which occurred in 1921.
Ultimately, on August 10 1923, on his initiative, Tomas Rodriguez designated Vicente F. Lopez as the
administrator of his property.

On October 22, 1923, Margarita Lopez petitioned the Court of First Instance of Manila to name a guardian
for Tomas Rodriguez because of his age and pathological state. This petition was opposed by Attorney
Gregorio Araneta acting on behalf of Tomas Rodriguez for the reason that while Rodriguez was far from
strong on account of his years, he was yet capable of looking after his property with the assistance of his
administrator, Vicente F. Lopez. The deposition of Tomas Rodriguez was taken and a perusal of the same
shows that he was able to answer nearly all of the questions propounded intelligently. A trial had at which
considerable oral testimony for the petitioner was received. At the conclusion of the hearing, an order
was issued by the presiding judge, declaring Tomas Rodriguez incapacitated to take care of himself and to
manage his property and naming Vicente F. Lopez as his guardian.

Tomas Rodriguez was taken to the Philippine General Hospital on November 27, 1923. There he was to
remain sick in bed until his death. The physician in charge during this period was Dr. Elias Domingo. In the
clinical case record of the hospital under the topic "Diagnosis (in full)," we find the following "Senility;
Hernia inguinal; Decubitus"
On the door of the patient's room was placed a placard reading — "No visitors, except father, mother,
sisters, and brothers." (Testimony of head nurse physician, there were permitted to visit the patient only
the following named persons: Santiago Lopez, Manuel Ramirez, Romana Lopez, Luz Lopez de Bueno,
Remedio Lopez, Benita Lopez, Trinidad Vizcarra, Apolonia Lopez, Antonio Haman, and Gregorio Araneta
((Exhibit 9). The list did not include the names of Margarita Lopez and her husband Antonio Ventura.
Indeed the last named persons experienced considerable difficulty in penetrating in to the room of
Rodriguez.
Santiago Lopez states that on one occasion when he was visiting Tomas Rodriguez in the hospital ,
Rodriguez expressed to him a desire to make a will and suggested that the matter be taken up with Vicente
F. Lopez. This information Santiago Lopez communicated to Vicente F. Lopez, who then interviewed
Maximino Mina, a practicing attorney in the City of Manila, for the purpose of securing him to prepare
the will. In accordance with this request, Judge Mina conferred with Tomas Rodriguez in the hospital in
December 16th and December 29th. He ascertained the wishes of Rodriguez and wrote up a testament in
rough draft. The attorney expected to return to the hospital on December 31st to have the will executed
but was unable to do so on account of having to make a trip to the provinces. Accordingly, the papers
were left with Santiago Lopez.
For purposes of record, we copy the will as here translated into English:
ONLY PAGE
In the City of Manila, Philippines Islands, this January 3, 1924, I, Tomas Rodriguez, of age and resident of
the City of Manila, Philippine Islands, do freely and voluntarily make this my will and testament in the
Spanish language which I know, with the following clauses:
First I declare that I am a Roman Apostolic Catholic, and order that my body be buried in accordance with
my religion, standing and circumstances.
Second. I name my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno as my only universal
heirs of all my property.
Third. I appoint D. Manuel Torres and D. Santiago Lopez as my prosecutors.
In witness whereof I sign this typewritten will, consisting of one single page, in the presence of the witness
who sign below.
(Sgd.) TOMAS RODRIGUEZ
(Left marginal signatures:) TOMAS RODRIGUEZ ELIAS BONOAN V. L. LEGARDA A. DE ASIS
We hereby certify that on the date and in the place above indicated, Don Tomas Rodriguez executed this
will, consisting of one single typewritten page, having signed at the bottom of the will in the presence of
us who saw as witnesses the execution of this will, we signed at the bottom thereof in the presence of the
testator and of each other.
(Sgd.) V. L. LEGARDA ELIAS BONOAN A. DE ASIS
On the afternoon of January 3, 1924 there gathered in the quarters of Tomas Rodriguez in the Philippine
General Hospital, Santiago Lopez and Dr. A. De Asis, attesting witness; and Dr. Elias Fernando Calderon,
Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for purposes of observation. Possibly also
Mrs. Luz Lopez de Bueno and Mrs. Nena Lopez were present; at least they were hovering in the
background.
As to what actually happened, we have in the record two absolutely contradictory accounts. One
emanates from the attesting witness, Doctor Bonoan. The other is the united testimony of all remaining
persons who were there.
Doctor Elias Bonoan was the first witness called at the trial. He testified on direct examination as to formal
matters, such as the identification of the signatures to the will .On cross-examination, he rather started
the proponents of the will by stating that Luz Lopez de Bueno told Tomas Rodriguez to sign the document
it concerned a complaint against Castito and that nobody read the will to the testator.
A clear preponderance of the evidence exists in favor of the testimony of Vicente Legarda, corroborated
as it is by other witnesses of the highest standing in the community. The only explanation we can offer
relative to the testimony of Doctor Bonoan is that possibly he may have arrived earlier than the others
with the exception of Luz Lopez de Bueno, and that Luz Lopez de Bueno may have made some sort of an
effort to influence Tomas Rodriguez. There is however no possible explanation of the statement of Doctor
Bonoan to the effect that no one read the will to Rodriguez when at least five other persons recollect that
Vicente Legarda read it to him and recall the details connected with the reading.
Tomas Rodriguez passed away in the Philippine General Hospital, as we said on February 25, 1924. Not
even prior to his demise the two actions in the Lopez family had prepared themselves for a fight over the
estate. The Luz Lopez faction had secured the services of Doctor Domingo; Dr. Fernando Calderon and Dr.
Florentino Herrera, and had arranged to have two members of the medical fraternity, Doctors De Asis and
Bonoan as attesting witnesses. The Margarita Lopez faction had taken equal precautions by calling a
witnesses in the guardship proceedings Dr. Sixto de los Angeles and Dr. Samuel Tietze; thereafter by
continuing Doctors de Los Angeles and Tietze to examine Tomas Rodriguez and by associating with them
Dr. William Burke, a well-known physician of the City of Manila. Skilled lawyers were available to aid and
abet the medical experts. Out of such situations, do will contests arise.
Doctor Elias Domingo, who was the attending physician for Tomas Rodriguez throughout all the time that
Rodriguez in the hospital had examined him, was likewise certain that Rodriguez possessed sufficient
mentality to make a will.
Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke. Doctor
De los Angeles had been a witness in the gurardianship proceedings: That he was of unsound mind
suffering from senile dementia, or of mental impairment exceeding to a pathological extent the unusual
conditions and changes found to occur in the involutional period of life. That on account of such disease
and conditions his mind and memory were so greatly impaired as to make him unable to know or to
appreciate sufficiently the nature, effect, and consequences of the business he was engaged in; to
understand and comprehend the extent and condition of his properties; to collect and to hold in his mind
the particulars and details of his business transactions and his relations to the persons who were or might
have been the objects of his bounty; and to free himself from the influences of importunities, threats and
ingenuities, so that with a relatively less resistance, he might had been induced to do what others would
not have done.
On certain facts pertaining to the condition of Tomas Rodriguez there is no dispute. On January 3, 1924,
Rodriguez had reached the advanced age of 76 years. He was suffering from anemia, hernia inguinal,
chronic dypsia, and senility. Physically he was a wreck.
As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors Calderon, Domingo and Herrera
admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke, further declare
that his memory however for remote events was generally good. He was given to irrational exclamations
symptomatic of a deceased mind.
While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the
patient are "sound, except that his memory is weak," and that in executing the will the testator had full
understanding of the act he was performing and full knowledge of the contents thereof, Doctors De Los
Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they diagnosed his
case as senile dementia of the simple type approaching the deteriorated stage. Without attempting at this
stage to pass in judgment on the antagonistic conclusions of the medical witnesses, or on other disputed
point, insofar as the facts are concerned, a resolution of the case comes down to this: Did Tomas Rodriguez
on January 3, 1924, possess sufficient mentality to make a will, or had he passed so far along in senile
dementia as to require the court to find him of unsound? We leave the facts in this situation to pass on to
a discussion of the legal phases of the case. Various tests of testamentary capacity have been announced
by the courts only later to be rejected as incomplete. Of the specific tests of capacity, neither old age,
physical infirmities, feebleness of mind, weakness of the memory, the appointment of a guardian, nor
eccentricities are sufficient singly or jointly to show testamentary incapacity. Each case rests on its own
facts and must be decided by its own facts.
There is one particular test relative to the capacity to make a will which is of some practical utility. This
rule concerns the nature and rationality of the will. Is the will simple or complicated? Is it natural or
unnatural? The mere exclusion of heirs will not, however, in itself indicate that the will was the offspring
of an unsound mind.
On the issue of testamentary capacity, the evidence should be permitted to take a wide range in order
that all facts may be brought out which will assist in determining the question. The testimony of
subscribing witnesses to a will concerning the testator's mental condition is entitled to great weight where
they are truthful and intelligent. The evidence of those present at the execution of the will and of the
attending physician is also to be relied upon.
The presumption is that every adult is sane. It is only when those seeking to overthrow the will have clearly
established the charge of mental incapacity that the courts will intervene to set aside a testamentary
document.
It is here claimed that the unsoundness of mind of the testator was the result of senile dementia. This is
the form of mental decay of the aged upon which will are most often contested. A Newton, Paschal, a
Cooley suffering under the variable weather of the mind, the flying vapors of incipient lunacy," would
have proved historic subjects for expert dispute. Had Shakespeare's King Lear made a will, without any
question it would have invited litigation and doubt.
Senile dementia usually called childishness has various forms and stages. To constitute complete senile
dementia there must be such failure of the mind as to deprive the testator of intelligent action,. In the
first stages of the diseases, a person may possess reason and have will power.
Insofar as the law on testamentary capacity to make a will is concerned and carrying alone one step further
the question suggested at the end of the presentation of the facts on the same subject a resolution of the
case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make
a will which would meet the legal test regarding testamentary capacity and have the proponents of the
will carried successfully the burden of proof and shown him to be of sound mind on that date?
II. UNDUE INFLUENCE
A. Facts. — The will was attacked on the further ground of undue influence exercised by the persons
benefited in the will in collaboration with others. The trial judge found this allegation to have been
established and made it one of the bases of his decision. it is now for us to say if the facts justify this
finding.
Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently became
his guardian. There is every indication that of all his relatives Tomas Rodriguez reposed the most
confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F. Lopez, who,
on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was Luz Lopez de Bueno
who appears to have gathered the witnesses and physicians for the execution of the will. This faction of
the Lopez family was also a favor through the orders of Doctor Domingo as to who could be admitted to
see the patient.
The trial judge entertained the opinion that there existed "a preconceived plan on the part of the persons
who surrounded Tomas Rodriguez" to secure his signature to the testament. The trial judge may be
correct in this supposition. It is hard to believe, however, that men of the standing of Judge Mina, Doctors
Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would so demean themselves and so fully their
characters and reputation as to participate in a scheme having for its purpose to delude and to betray an
old man in his age, rather named was acting according to the best of his ability to assist in a legitimate act
in a legitimate manner. Moreover, considering the attitude of Tomas Rodriguez toward Margarita Lopez
and her husband and his apparent enmity toward them, it seems fairly evident that even if the will had
been made in previous years when Rodriguez was more nearly in his prime, he would have prepared
somewhat a similar document.
B. LAW. — One of the grounds for disallowing a will is that it was procured by undue and improper
pressure and influence on the art of the beneficiary or some other person for his benefit (Code of Civil
Procedure, sec., 634[4]). Undue influence, as here mentioned in connection with the law of wills and as
further mentioned in the Civil Code (art. 1265), may be defined as that which compelled the testator to
do that which is against the will from fear the desire of peace or from other feeling which is unable to
resist.
The theory of undue influence is totally rejected as not proved.
III. JUDGMENT
To restate the combined issued of fact and law in this case pertaining to testamentary capacity: Did Tomas
Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet the legal test
regarding testamentary capacity and have the proponents of the will carried successfully the burden of
proof and shown him to be of sound mind on that date?
Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in which the
will was executed and to the testator's mental condition. The other subscribing witness, also, a physician
on the contrary testified to a fact which, if substantiated, would require the court to disallow the will. The
attending physician and three other eminent members of the medical fraternity, who were present at the
execution of the will, expressed opinions entirely favorable to the capacity of the testator. As against this
we have the professional speculations of three other equally eminent members of the medical profession
when the will was executed. The advantage on those facts is all with those who offer the will for probate.
The will was short. It could easily be understood by a person in physical distress. It was reasonable, that
is, it was reasonable if we take into account the evident prejustice of the testator against the husband of
Margarita Lopez.
With special reference of the definition of testamentary capacity, we may say this: On January 3, 1924,
Tomas Rodriguez, in our opinion comprehended the nature of the transaction in which he was engaged.
He had two conferences with his lawyer, Judge Mina, and knew what the will was to contain. The will was
read to him by Mr. Legarda. He signed the will and its two copies in the proper places at the bottom and
on the left margin. At that time the testator recollected the property to be disposed of and the persons
who would naturally be supposed to have claims upon him While for some months prior to the making of
the will he had not manage his property he seem to have retained a distinct recollection of what it
consisted and of his income. Occasionally his memory failed him with reference to the names of his
relatives. Ordinarily, he knew who they were, he seemed to entertain a prediliction towards Vicente F.
Lopez as would be natural since Lopez was nearest in which the instrument distributed the property
naming the objects of his bounty. His conversations with Judge Mina disclosed as insistence on giving all
of his property to the two persons whom he specified.
On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been physically
decrepit, may have been weak in intellect, may have suffered a loss of memory, may have had a guardian
and may have a been extremely eccentric, but he still possessed the spark of reason and of life, that
strength of mind to form a fixed intention and to summon his enfeebled thoughts to enforce that
intention, which the law terms "testamentary capacity." That in effect is the definite opinion which we
reach after an exhaustive and exhausting study of a tedious record, after weighing the evidence for the
oppositors, and after giving to the case the serious consideration which it deserves.

The judgment of the trial court will be set aside and the will of Tomas Rodriguez will be admitted to
probate without special pronouncement as to costs in this instance.
11. G.R. No. L-5149 March 22, 1910

GREGORIO MACAPINLAC, petitioner-appellee,

vs.
MARIANO ALIMURONG, opponent-appellant.

Carlos Ledesma and Mariano Lim, for appellant.

Hartigan and Rohde and Roman Lacson, for appellee.

ARELLANO, C. J.:

Simplicia de los Santos having died on June 19, 1907, her surviving husband, Gregorio Macapinlac,
submitted her will to the Court of First Instance of Pampanga for probate. Macario Alimurong, a
nephew of the deceased, opposed the proceedings and requested that "the will of the deceased, Doña
Simplicia de los Santos, be declared null and void for either of the two reasons" which he expresses,
and which are:

(1) Because the will was not executed and signed by the witnesses in accordance with the
provisions of the Code of Civil Procedure now in force.

(2) Because it was executed under duress and undue and illegal influence on the part of the
persons benefited thereby or of a person acting in their interests.

The trial having been held and evidence adduced, the trial court declared the following facts to be
proven:

(1) That at 6 o' clock on the evening of June 17, 1907, Simplicia de los Santos, who was sick
but in full possession of all her faculties, executed her will, which is the document attached to
the record, Exhibit No. 1 of the petitioner.

(2) That after the execution of such will on Monday, the testatrix died early on the morning of
the following Wednesday.

(3) That, as a preliminary act, a rough copy of the said will was made up, which rough copy
was read to the testatrix, and the latter ordered an additional clause to be added thereto, in
connection with a legacy that she desired to make in favor of some of her old servants who
and rendered good service.

(4) That, after the rough copy was amended by the addition of the above-mentioned clause, a
clear copy thereof was made up and was again read to the testatrix, who approved it in all of
its parts, and as she was unable to sign, she requested Amando de Ocampo to sign for her
and the latter wrote the following words with his own hand. "At the request of the testatrix
D.a Simplicia de los Santos, I signed — Amando de Ocampo." Immediately afterwards and
also in the presence of the same testatrux and of each other, the witnesses Jose Juico, Gabino
Panopio, Eusebio dayao, Juan Angeles, Jose Torres, Alejo San Pedro, and Gregorio Sangil
signed at the bottom of the will.

In view of the said facts—the lower court concludes—the will executed by Simplicia de los
Santos must be admitted to probate. The provisions of section 618 of the Code of Procedure
in Civil Actions and Special Proceedings are fully complied with. The will bears the name of
the testatrix written by Amando de Ocampo in her presence and by her express direction, and
 has been witnessed and signed by more than three trustworthy witnesses, in the presence of
the testatrix and of each other.

The judgment was as follows:

It is ordered that exhibit No. 1, duly translated, be probated as the last will of Simplicia de los
Santos and that the corresponding letters of administration be issued in favor of Gregorio
Macapinlac, the surviving husband of the said Simplicia de los Santos, the protest of the
adverse party being dismissed, with the costs.

The opponent appealed, and the appeal having been submitted to this court, together with the
allegations of both parties, it appears that the appellant has alleged the following assignments of error:

1 That the proceedings were not dismissed, because the witnesses for the petitioner did not sign their
respective testimony.

2 That it was declared that the will of the deceased Simplicia de los Santos was executed with a legal
formalities.

3 That it was not declared that the will of the deceased Simplicia de los Santos was executed under
undue and illegal influence on the part of the persons benefited thereby or of a person acting in their
interests.

With reference to the first assignment of error, inasmuch as no question was raised in the first instance
in the form of a motion and denied by the court below and exception taken and brought up on appeal,
there is no ground on which we may take into consideration such assignment and decide a matter not
covered by the appeal and with reference to which a decision by this court is not properly sought.

In regard to the second assignment, in view of the facts set forth and of the findings made by the trial
court, according to the preponderance of the evidence, it can not be rationally shown that the
conclusion should have been otherwise, nor does it appear that the conclusion infringes any statute
or legal doctrine for the enforcement of which this court should review the evidence.

But, besides the question of fact, the appellant submit another question of law, viz, whether or not the
will was signed in accordance with the law, and he affirms that it was not, inasmuch as the law requires
that when a person signs in place of the testator he should write the name of the latter in the will as
the signature; this was not done by Amando de Ocampo in the will in question, as he did not sign it
with the name of testatrix.

It is shown by the evidence that the will was wholly written in the handwriting of the subscribing witness,
Gregorio Sangil, and at the foot thereof the following words appear in a new paragraph and sufficiently
apart:

At the request of the testatrix, Da. Simplicia de los Santos, I signed.

For Simplicia de los Santos. Amando de Ocampo.

As a question of fact, the authenticity of the words "For Simplicia de los Santos," prefixed to the
signature, is impugned as not having been written at the time of the execution of the will.
And, as a question of law, it is claimed that the form of signing for the testatrix "At the request of the
testatrix Da. Simplicio de los Santos, I signed: Amando de Ocampo," is not in accordance with the
requirements of the law.

Regarding the first question, the trial court concluded that "the posterior insertion of the words 'For
Simplicia de los Santos' can not affect the validity of the will."

Therefore, it can be considered as nonexistent, and the other as the only fore of signature by the
testatrix, the authenticity of which has not been impugned or which the trial court admits as conclusive,
and is only one taken into account in its findings of fact. Although the said words "For Simplicia de los
Santos" be considered as inserted subsequently, which we neither affirm nor deny, because a specific
determination either way is unnecessary, in our opinion the signature for the testatrix as if she signed
the will, and also the signature of the witness who, at her request, wrote the name of the testatrix and
signed for her, affirming the truth of this fact, attested by the other witnesses then present. And this
fully complies with the provisions of section 618 of the Act.

With reference to the third assignment of error, the court below found:

. . . and the influence which, according to the adverse party, was exercised upon the testatrix
by Father Lupo is not shown. While the rough copy of the will was being made, Father Lupo
simply discussed with those who were making the rough draft the question of the more
appropriate use of some phrases in Pampango. It is true that he went in and out of the room
of the testatrix several times, and that from time to time he showed a relic to her, but there is
no evidence to indicate that Father Lupo influenced the testatrix directly and caused her to be
influenced in any way.

Against this finding of fact, based upon the preponderance of the evidence as weighed by the trial
court, we find no reason or ground for deciding this question of fact in any other way. We find no data
showing that the person above mentioned directly influenced the provisions of the will; that such is the
illegal and improper influence which the law condemns as overcoming that freedom by which the last
will of a man must be expressed.

The judgment appealed from is hereby affirmed, with the costs of this instance against the appellant.
So ordered.

Torres, Johnson, Carson and Moreland, JJ., concur.

Case Digest
FACTS:
Simplicia de los Santos having died on June 19, 1907, her surviving husband,
Gregorio Macapinlac, submitted her will to the Court of First Instance of Pampanga for
probate. Macario Alimurong, a nephew of the deceased, opposed the proceedings and
requested that "the will of the deceased, Doña Simplicia de los Santos, be declared null
and void for either of the two reasons" which he expresses, and which are (1) Because
the will was not executed and signed by the witnesses in accordance with the provisions
of the Code of Civil Procedure now in force. (2) Because it was executed under duress
and undue and illegal influence on the part of the persons benefited thereby or of a
person acting in their interests.
ISSUE:
Whether the will is valid
RULING:
The Supreme Court ruled in the affirmative.
The posterior insertion of the words 'For Simplicia de los Santos' cannot affect
the validity of the will. It can be considered as non-existent, and the other as the only
fore of signature by the testatrix, the authenticity of which has not been impugned or
which the trial court admits as conclusive, and is only one taken into account in its
findings of fact. Although the said words "For Simplicia de los Santos" be considered as
inserted subsequently, for the testatrix as if she signed the will, and also the signature of
the witness who, at her request, wrote the name of the testatrix and signed for her,
affirming the truth of this fact, attested by the other witnesses then present. And this
fully complies with the provisions of section 618 of the Act.

Moreover, the Supreme Court held that there was no data showing that persons
directly influence the provisions of the will; that such is the illegal and improper
influence which the law condemns as overcoming that freedom by which the last will of
a man must be expressed.
12. G.R. No. L-16763 December 22, 1921

PASCUAL COSO, petitioner-appellant,

vs.
FERMINA FERNANDEZ DEZA, ET AL., objectors-appellees.

Eduardo Gutierrez Repide & Felix Socias for appellant.

Jose Varela Calderon & Benito Jimenez Zoboli for appellees.

OSTRAND, J.:

This is an appeal from a decision of the Court of First Instance of Manila setting aside a will on the
ground of undue influence alleged to have been exerted over the mind of a testator by one Rosario
Lopez. The will gives the tercio de libre disposicion to an illegitimate son had by the testator with said
Rosario Lopez, and also provides for the payment to her of nineteen hundred Spanish duros by way
the reimbursement for expenses incurred by her in taking care of the testator in Barcelona during the
years 1909 to 1916, when he is alleged to have suffered from a severe illness.

The evidence shows that the testator, a married man and resident of the Philippine Islands, became
acquainted with Rosario Lopez in Spain in 1898 and that he had illicit returns with her for many years
thereafter. After his return to the Philippines she followed him, arriving in Manila in February, 1918,
and remained in close communication with him until his death in February, 1919. There is no doubt
that she exercised some influence over him and the only question for our determination is whether this
influence was of such a character as to vitiate the will.

The English and American rule in regard to undue influence is thus stated in 40 Cyc., 1144-1149.

Mere general or reasonable influence over a testator is not sufficient to invalidate a will; to
have that effect the influence must be "undue." The rule as to what constitutes "undue
influence" has been variously stated, but the substance of the different statements is that, to
be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and
subjugates the mind of the testator as to destroy his free agency and make his express the
will of another, rather than his own.1awphil.net

. . . such influence must be actually exerted on the mind of the testator in regard to the
execution of the will in question, either at time of the execution of the will, or so near thereto
as to be still operative, with the object of procuring a will in favor of particular parties, and it
must result in the making of testamentary dispositions which the testator would not otherwise
have made. . . .

. . . and while the same amount of influence may become "undue" when exercised by one
occupying an improper and adulterous relation to testator, the mere fact that some influence
is exercised by a person sustaining that relation does not invalidate a will, unless it is further
shown that the influence destroys the testator's free agency.

The burden is upon the parties challenging the will to show that undue influence, in the sense above
expressed, existed at the time of its execution and we do not think that this burden has been carried
in the present case. While it is shown that the testator entertained strong affections for Rosario Lopez,
it does not appear that her influence so overpowered and subjugated his mind as to "destroy his free
agency and make him express the will of another rather than his own." He was an intelligent man, a
lawyer by profession, appears to have known his own mind, and may well have been actuated only by
a legitimate sense of duty in making provisions for the welfare of his illegitimate son and by a proper
feeling of gratitude in repaying Rosario Lopez for the sacrifices she had made for him. Mere affection,
even if illegitimate, is not undue influence and does not invalidate a will. No imposition or fraud has
been shown in the present case.

Influence gained by kindness and affection will not be regarded as `undue,' if no imposition or
fraud be practiced, even though it induces the testator to make an unequal and unjust
disposition of his property in favor of those who have contributed to his comfort and ministered
to his wants, if such disposition is voluntarily made. (Mackall vs. Mackall, 135 U. S., 1677.)

It may be further observed that under the Civil Law the right of a person with legal heirs to dispose of
his property by will is limited to only a portion of his estate, and that under the law in force in these
Islands before the enactment of the Code of Civil Procedure, the only outside influences affecting the
validity of a will were duress, deceit, and fraud. The present doctrine of undue influence originated in
a legal system where the right of the testator to dispose of his property by will was nearly unlimited.
Manifestly, greater safeguards in regard to execution of wills may be warranted when the right to so
dispose of property is unlimited than when it is restricted to the extent it is in this jurisdiction. There is,
therefore, certainly no reason for giving the doctrine of undue influence a wider scope here than it
enjoys in the United States.

For the reasons stated, the decision of the lower court disallowing the will of Federico Gimenez Zoboli
is hereby reversed and it is ordered that the will be admitted to probate. No costs will be allowed. So
ordered.

Johnson, Street, Malcolm, Avanceña, Villamor, Johns and Romualdez, JJ., concur.

Case Digest
FACTS:
The testator, a married man, became acquainted with Rosario Lopez and had illicit relations with her for many
years. They begot an illegitimate son. The testator‘s will gives the tercio de libre disposicion to the illegitimate son and
also provides for the payment of nineteen hundred Spanish duros to Rosario Lopez by way of reimbursement for
expenses incurred by her in talking care of the testator when he is alleged to have suffered from severe illness. The
will was set aside on the ground of undue influence alleged to have been exerted over the mind of the testator by
Rosario Lopez. There is no doubt that Rosario exercised some influence over the testator.
ISSUE:
Whether or not the influence exercised was of such a character to vitiate the will.
RULING:
Mere general or reasonable influence over a testator is not sufficient to invalidate a will; to have that effect,
the influence must be undue. The rule as to what constitutes undue influence has been variously stated, but the
substance of the different statements is that, to be sufficient to avoid a will, the influence exerted must be of a kind that
so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of
another rather than his own.
Such influence must be actually exerted on the mind of the testator in regard to the execution of the will in
question, either at the time of the execution of the will, or so near thereto as to be still operative, with the object of
procuring a will in favor of particular parties, and it must result in the making of testamentary dispositions which the
testator would not otherwise have made.
And while the same amount of influence may become undue when exercise by one occupying an improper
and adulterous relation to testator, the mere fact that some influence is exercised by a person sustaining that relation
does not invalidate a will, unless it is further shown that the influence destroys the testator‘s free agency.
The burden is upon the parties challenging the will to show that undue influence existed at the time of its
execution. While it is shown that the testator entertained strong affections for Rosario Lopez, it does not appear that
her influence so overpowered and subjugated his mind as to destroy his free agency and make him express the will of
another rather than his own. Mere affection, even if illegitimate, is not undue influence and does not invalidate a will.
Influence gained by kindness and affection will not be regarded as undue, if no imposition or fraud be
practiced, even though it induces the testator to make an unequal and unjust disposition of his property in favor of
those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made.
13. 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.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

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

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and
its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte,
deceased, and appointing as executor Celso Icasiano, the person 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. 1äw phï1.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.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ.,
concur.
Barrera and Dizon, JJ., took no part.

Case Digest
FACTS:

1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for his
appointment as executor thereof. It appears from the evidence that the testatrix died on
September 12, 1958. She executed a will in Tagalog, and through the help of her lawyer, it
was prepared in duplicates, an original and a carbon copy. 2.
2. On the day that it was subscribed and attested, the lawyer only brought the original copy of
the will while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed
to sign one of the pages in the original copy but admitted he may have lifted 2 pages
simultaneously instead when he signed the will. Nevertheless, he affirmed that the will was
signed by the testator and other witnesses in his presence.

ISSUE:

Whether or not the failure of one of the subscribing witnesses to affix his signature to
a page is sufficient to deny probate of the will
RULING:

No, the failure to sign was entirely through pure oversight or mere inadvertence. Since the
duplicated bore the required signatures, this proves that the omission was not intentional. Even if the
original is in existence, a duplicate may still be admitted to probate since the original is deemed to be
defective, then in law, there is no other will bu the duly signed carbon duplicate and the same can be
probated.

The law should not be strictly and literally interpreted as to penalize the testatrix on account of
the inadvertence of a single witness over whose conduct she has no control of. Where the purpose of
the law is to guarantee the identity of the testament and its component pages, and there is no
intentional or deliberate deviation existed.

Note that this ruling should not be taken as a departure from the rules that the will should be
signed by the witnesses on every page. The carbon copy duplicate was regular in all respects.