Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 42258 September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD,

petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.

Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-

appellant.
Leodegario Azarraga for oppositor-appellant.

DIAZ, J.:

There are two motions filed by the oppositor Aquilina Tolentino, pending
resolution: That of January 29, 1935, praying for the reconsideration of the
decision of the court and that of the same date, praying for a new trial.

The oppositor bases her motion for reconsideration upon the following facts
relied upon in her pleading:

1. That the testatrix did not personally place her thumbmark on her alleged
will;

2. That the testatrix did not request Attorney Almario to write her name and
surname on the spaces of the will where she should place her thumbmarks;

3. That the will in question was not signed by the testatrix on the date
indicated therein;

4. That the testatrix never made the will in question; and

5. That on the date the will in question was executed, the testatrix was no
longer in a physical or mental condition to make it.
We have again reviewed the evidence to determine once more whether the
errors assigned by the oppositor in her brief have not been duly
considered, whether some fact or detail which might have led us to another
conclusion has been overlooked, or whether the conclusions arrived at in
our decision are not supported by the evidence. We have found that the
testatrix Leoncia Tolentino, notwithstanding her advanced age of 92 years,
was in good health until September 1, 1933. She had a slight cold on said
date for which reason she was visited by her physician, Dr. Florencio
Manuel. Said physician again visited her three or four days later and found
her still suffering from said illness but there was no indication that she had
but a few days to live. She ate comparatively well and conserved her mind
and memory at least long after noon of September 7, 1933. She took her
last nourishment of milk in the morning of the following day, September 8,
1933, and death did not come to her until 11 o'clock sharp that morning.

The will in question was prepared by Attorney Marciano Almario between

11 and 12 o'clock noon on September 7, 1933, in the house of the testatrix
Leoncia Tolentino, after she had expressed to said attorney her desire to
make a will and bequeath her property to the petitioner Victorio Payad in
compensation according to her, for his diligent and faithful services
rendered to her. Victorio Payad had grown up under the care of the
testatrix who had been in her home from childhood. The will was written by
Attorney Almario in his own handwriting, and was written in Spanish
because he had been instructed to do so by the testatrix. It was later read
to her in the presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona
and other persons who were then present. The testatrix approved all the
contents of the document and requested Attorney Almario to write her
name where she had to sign by means of her thumbmark in view of the fact
that her fingers no longer had the necessary strength to hold a pen. She
did after having taken the pen and tried to sign without anybody's help.
Attorney Almario proceeded to write the name of the testatrix on the three
pages composing the will and the testatrix placed her thumbmark on said
writing with the help of said attorney, said help consisting in guiding her
thumb in order to place the mark between her name and surname, after
she herself had moistened the tip of her thumb with which she made such
mark, on the ink pad which was brought to her for said purpose. Said
attorney later signed the three pages of the will in the presence of the
testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and Perfecto L.
Ona, who, in turn, forthwith signed it successively and exactly under the
same circumstances above stated.
In support of her claim that the testatrix did not place her thumbmark on the
will on September 7, 1983, and that she never made said will because she
was no longer physically or mentally in a condition do so, the oppositor
cites the testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and
her own.

Julian Rodriguez and Gliceria Quisonia testified that they had not seen
Attorney Almario in the morning of September 7, 1933, in the house of the
deceased where they were then living, and that the first time that they saw
him there was at about 12 o'clock noon on September 8th of said year,
when Leoncia Tolentino was already dead, Gliceria Quisonia stating that on
that occasion Almario arrived there accompanied only by woman named
Pacing. They did not state that Almario was accompanied by Pedro L.
Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses of
the will. Said two witnesses, however, could not but admit that their room
was situated at the other end of the rooms occupied by the deceased
herself and by the petitioner Victorio Payad, and that their said room and
that of Victorio Payad are separated by the stairs of the house; that Gliceria
Quisonia saw the deceased only once on the 7th and twice on the 8th, and
that Julian Rodriguez stayed in his room, without leaving it, from 9 to 12
o'clock a. m. on the 7th of said month. Gliceria Quisonia further stated that
in the morning of September 7th, she prepared the noonday meal in the
kitchen which was situated under the house. Under such circumstances it
is not strange that the two did not see the testatrix when, according to the
evidence for the petitioner, she made her will and signed it by means of her
thumbmark. In order to be able to see her and also Almario and the
instrumental witnesses of the will, on that occasion, it was necessary for
them to enter the room where the deceased was, or at least the adjoining
room where the will was prepared by Attorney Almario, but they did not do
so.

Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the
testatrix was already so weak that she could not move and that she could
hardly be understood because she could no longer enunciate, making it
understood thereby, that in such condition it was absolutely impossible for
her to make any will. The attorney for the oppositor insists likewise and
more so because, according to him and his witness Paz de Leon, two days
before the death of the testatrix, or on September 6, 1933, she could not
even open her eyes or make herself understood.
The testimony of said witnesses is not sufficient to overthrow, or discredit
the testimony of the petitioner-appellant or that of Attorney Almario and the
three instrumental witnesses of the will because, to corroborate them, we
have of record the testimony of the physician of the deceased and the
accountant Ventura Loreto who are two disinterested witnesses, inasmuch
as the outcome of these proceedings does not affect them in the least. The
two testified that two, three or four days before the death of the testatrix,
they visited her in her home, the former professionally, and the latter as an
acquaintance, and they then found her not so ill as to be unable to move or
hold a conversation. They stated that she spoke to them intelligently; that
she answered all the questions which they had put to her, and that she
could still move in spite of her weakness.

In view of the foregoing facts and considerations, we deem it clear that the
oppositor's motion for reconsideration is unfounded.

The oppositor's motion for a new trial is based upon the following facts: (1)
That upon her death, the deceased left a letter signed by herself, placed in
a stamped envelope and addressed to Teodoro R. Yangco, with
instructions not to open it until after her death; (2) that there are witnesses
competent to testify on the letter in question, in addition to other evidence
discovered later, which could not be presented at the trial; (3) that in the
letter left by the deceased, she transfers all her property to Teodoro R.
Yangco stating therein that, upon her death, all the property in question
should become Yangco's. From this alleged fact, the oppositor infers that
the deceased never had and could not have had the intention to make the
will in question, and (4) that said oppositor knew of the existence of said
letter only after her former attorney, Alejandro Panis, had been informed
thereof in May, 1935, by one of Teodoro R. Yangco's attorneys named
Jose Cortes.

Subsequent to the presentation of the motion for a new trial, the oppositor
filed another supplementary motion alleging that she had discovered some
additional new evidence consisting in the affidavit of Attorney Gabino
Fernando Viola wherein the latter affirms that Victorio Payad had called him
on September 5, 1933, to prepare the will of the deceased but he did not
do so because after seeing her he had been convinced that she could not
make a will because she had lost her speech and her eyes were already
closed.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola,
substantially affirming the facts alleged by the oppositor, are attached to
both motions for a new trial.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not
and cannot be newly discovered evidence, and are not admissible to
warrant the holding of a new trial, because the oppositor had been
informed of the facts affirmed by Attorney Jose Cortes in his affidavit long
before this case was decided by this court. It is stated in said affidavit that
in May, 1935, Attorney Jose Cortes revealed to the attorney for oppositor
the fact that the deceased had left a letter whereby she transferred all her
property to Teodoro R. Yangco, and the judgment was rendered only on
January 15, 1936, or eight months later.

The oppositor contends that she had no reason to inform the court of said
newly discovered evidence inasmuch as the judgment of the lower court
was favorable to her. She, however, overlooks the fact that she also
appealed from the decision of the lower court and it was her duty, under the
circumstances, to inform this court of the discovery of said allegedly newly
discovered evidence and to take advantage of the effects thereof because,
by so doing, she could better support her claim that the testatrix made no
will, much less the will in question. Said evidence, is not new and is not of
the nature of that which gives rise to a new trial because, under the law, in
order that evidence may be considered newly discovered evidence and
may serve as a ground for a new trial, it is necessary (a) that it could not
have been discovered in time, even by the exercise of due diligence; (b)
that it be material, and (c) that it also be of such a character as probably to
change the result if admitted (section 497, Act No. 190; Banal vs. Safont, 8
Phil., 276).

The affidavit of Attorney Cortes is neither material nor important in the

sense that, even considering it newly discovered evidence, it will be
sufficient to support the decision of the lower court and modify that of this
court. It is simply hearsay or, at most, corroborative evidence. The letter of
the deceased Leoncia Tolentino to Teodoro R. Yangco would, in the eyes
of the law, be considered important or material evidence but this court has
not the letter in question before it, and no attempt was ever made to
present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he may give
pursuant thereto is not more competent than that of Attorney Jose Cortes
because, granting that when he was called by Victorio Payad to help the
deceased Leoncia Tolentino to make her will and he went to her house on
September 5, 1933, the deceased was almost unconscious, was
unintelligible and could not speak, it does not necessarily mean that on the
day she made her will, September 7, 1933, she had not recovered
consciousness and all her mental faculties to capacitate her to dispose of
all her property. What Attorney Gabino Fernando Viola may testify pursuant
to his affidavit in question is not and can not be newly discovered evidence
of the character provided for by law, not only because it does not exclude
the possibility that testatrix had somewhat improved in health, which
possibility became a reality at the time she made her will because she was
then in the full enjoyment of her mental faculties, according to the testimony
of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio Payad and
Marciano Almario, but also because during the hearing of these
proceedings in the Court of First Instance, Attorney Viola was present, and
the oppositor then could have very well called him to the witness stand,
inasmuch as her attorney already knew what Attorney Viola was to testify
about, yet she did not call him. The last fact is shown by the following
excerpt from pages 148 to 150 of the transcript:

Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I
should like to present as the last witness Attorney Fernando Viola who was
called by the petitioner Victoria Payad to prepare the will of the deceased in
his favor on September 5, 1933.

COURT: But, Mr. Panis, are you going to testify for Attorney Fernando
Viola? — Mr. PANIS: No, Your Honor.

COURT: Well, where is that attorney? Where is that witness whom you
wish to call to the witness stand? — Mr. PANIS: Your Honor, he is busy in
the branch, presided over by Judge Sison.

COURT: And when can he come? Mr. — PANIS. I am now going to find
out, Your Honor. If the other party, Your Honor, is willing to admit what said
witness is going to testify in the sense that said Attorney Fernando Viola
went to the house of the deceased on September 5, 1933, for the purpose
of talking to the deceased to draft the will upon petition of Mr. Victorio
Payad; if the other party admits that, then I am going waive the
presentation of the witness Mr. Fernando Viola.

Mr. ALMARIO (attorney for the petitioner): We cannot admit that.

COURT: The court had already assumed beforehand that the other party
would not admit that proposition.

Mr. PANIS: I request Your Honor to reserve us the right to call the witness,
Mr. Viola, without prejudice to the other party's calling the witness it may
wish to call.

COURT: The court reserves to the oppositor its right to call Attorney Viola
to the witness stand.

If, after all, the oppositor did not decide to call Attorney Viola to testify as a
witness in her favor, it might have been because she considered his
testimony unimportant and unnecessary, and at the present stage of the
proceedings, it is already too late to claim that what said attorney may now
testify is a newly discovered evidence.

For the foregoing considerations, those stated by this court in the original
decision, and the additional reason that, as held in the case of Chung Kiat
vs. Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly
discovered evidence is limited to ordinary cases pending in this court on
bills of exceptions, the motion for reconsideration and a new trial filed by
the oppositor are hereby denied, ordering that the record be remanded
immediately to the lower court. So ordered.

Avanceña, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.

Matias v. Salud
L-10751, 23 June 1958

FACTS:

The CFI denied probate of the will of Gabina Raquel. It must be noted that
Gabina Raquel was suffering from herpes zoster that afflicted the right arm
and shoulder of the testatrix, which made writing difficult and a painful act.
Thus, upon the insistence of the attorney, Gabina attempted to sign, but
since it was so painful she just managed to thumbmarked the foot of the
document and the left margin at each page. The parties opposing the
probate of the will contended that the will was void due to the irregularities
in the execution thereof.

One of the points raised by the oppositors was that the finger mark can not
be regarded as the decedent’s valid signature as it does not show distinct
identifying ridgelines. And since the finger mark was an invalid signature,
there must appear in the attestation clause that another person wrote the
testator’s name at his request.

ISSUE:

W/N the will was valid.

HELD:

YES. As to the clarity of the ridge impressions, it is so dependent on

aleatory requirements as to require dexterity that can be expected of very
few persons; testators should not be required to possess the skill of trained
officers.

And as to the validity of the thumbprints as signature, the SC held that it

has been held in a long line of cases that a thumbprint is always a valid and
sufficient signature for the purpose of complying with the requirement of the
article.

Furthermore, the validity of thumbprints should not be limited in cases of

illness or infirmity. A thumbprint is considered as a valid and sufficient
signature in complying with the requirements of the article.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO

GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

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

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

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the

will of Antero Mercado dated January 3, 1943. The will is written in the
Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing

testament of Antero Mercado was signed by himself and also by us below
his name and of this attestation clause and that of the left margin of the
three pages thereof. Page three the continuation of this attestation clause;
this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of
three pages and all them were signed in the presence of the testator and
witnesses, and the witnesses in the presence of the testator and all and
each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January,
one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

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

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

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

What has been said makes it unnecessary for us to determine there is a

sufficient recital in the attestation clause as to the signing of the will by the
testator in the presence of the witnesses, and by the latter in the presence
of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the

petitioner. So ordered.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ.,
concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

PEDRO BARUT, petitioner-appellant,

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

A. M. Jimenez for appellant.

Ramon Querubin for appellees.

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

This appeal arises out of an application on the part of Pedro Barut to

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

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

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

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

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

No will, except as provided in the preceding section, shall be valid to pass

any estate, real or personal, nor charge or effect the same, unless it be in
writing and signed by the testator, or by the testator's name written by
some other person in his presence, and by his expenses direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of each. . . .

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

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

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

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

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

The testatrix was not able to sign it for her. Instead of writing her name he
wrote his own upon the will. Held, That the will was not duly executed.
All of the above cases are precisely of this character. Every one of them
was a case in which the person who signed the will for the testator wrote
his own name to the will instead of writing that of the testator, so that the
testator's name nowhere appeared attached to the will as the one who
executed it. The case of Ex parte Arcenas contains the following
paragraph:

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

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

Aside from the presentation of an alleged subsequent will the contestants

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

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

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

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

CARSON, J.:

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

A majority of the members of the court is of opinion that this subscribing

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

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

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

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

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

The decree entered by the court below admitting the instrument

propounded therein to probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of this instance against the
appellant.

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

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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. 1äwphï1.ñët

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the probate of
the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction

of his evidence; but on June 1, 1959, he filed a motion for the admission of
an amended and supplemental petition, alleging that the decedent left a will
executed in duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly
found only on or about May 26, 1959. On June 17, 1959, oppositors
Natividad Icasiano de Gomez and Enrique Icasiano filed their joint
opposition to the admission of the amended and supplemental petition, but
by order of July 20, 1959, the court admitted said petition, and on July 30,
1959, oppositor Natividad Icasiano filed her amended opposition.
Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its
duplicate to probate. From this order, the oppositors appealed directly to
this Court, the amount involved being over P200,000.00, on the ground that
the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on June 2,
1956, the late Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and attested by three
instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the
testatrix and by the said three instrumental witnesses on the same date
before attorney Jose Oyengco Ong, Notary Public in and for the City of
Manila; and that the will was actually prepared by attorney Fermin Samson,
who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of
Bulacan, Judge Ramon Icasiano and a little girl. Of the said three
instrumental witnesses to the execution of the decedent's last will and
testament, attorneys Torres and Natividad were in the Philippines at the
time of the hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public before whom the will
was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared one original and two
copies of Josefa Villacorte last will and testament at his house in Baliuag,
Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting witnesses, Atty. Jose
V. Natividad, on page three (3) thereof; but the duplicate copy attached to
the amended and supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting witnesses in each and every
page.

The testimony presented by the proponents of the will tends to show that
the original of the will and its duplicate were subscribed at the end and on
the left margin of each and every page thereof by the testatrix herself and
attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing
signature of attorney Natividad on page three (3) of the original); that pages
of the original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is
written in the language known to and spoken by the testatrix that the
attestation clause is in a language also known to and spoken by the
witnesses; that the will was executed on one single occasion in duplicate
copies; and that both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on the same
date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the
original, admits that he may have lifted two pages instead of one when he
signed the same, but affirmed that page three (3) was signed in his
presence.

Oppositors-appellants in turn introduced expert testimony to the effect that

the signatures of the testatrix in the duplicate (Exhibit "A-1") are not
genuine nor were they written or affixed on the same occasion as the
original, and further aver that granting that the documents were genuine,
they were executed through mistake and with undue influence and
pressure because the testatrix was deceived into adopting as her last will
and testament the wishes of those who will stand to benefit from the
provisions of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and dispositions
thereof, whereby proponents-appellees stand to profit from properties held
by them as attorneys-in-fact of the deceased and not enumerated or
mentioned therein, while oppositors-appellants are enjoined not to look for
other properties not mentioned in the will, and not to oppose the probate of
it, on penalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that
the testatrix signed both original and duplicate copies (Exhibits "A" and "A-
1", respectively) of the will spontaneously, on the same in the presence of
the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and
its duplicate were executed in Tagalog, a language known to and spoken
by both the testator and the witnesses, and read to and by the testatrix and
Atty. Fermin Samson, together before they were actually signed; that the
attestation clause is also in a language known to and spoken by the
testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe
Logan, that the signatures of the testatrix appearing in the duplicate original
were not written by the same had which wrote the signatures in the original
will leaves us unconvinced, not merely because it is directly contradicted by
expert Martin Ramos for the proponents, but principally because of the
paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond
the writer's range of normal scriptural variation. The expert has, in fact,
used as standards only three other signatures of the testatrix besides those
affixed to the original of the testament (Exh. A); and we feel that with so few
standards the expert's opinion and the signatures in the duplicate could not
be those of the testatrix becomes extremely hazardous. This is particularly
so since the comparison charts Nos. 3 and 4 fail to show convincingly that
the are radical differences that would justify the charge of forgery, taking
into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right
the original. These, factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted
and questioned signatures does not appear reliable, considering the
standard and challenged writings were affixed to different kinds of paper,
with different surfaces and reflecting power. On the whole, therefore, we do
not find the testimony of the oppositor's expert sufficient to overcome that
of the notary and the two instrumental witnesses, Torres and Natividad (Dr.
Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact

that some heirs are more favored than others is proof of neither (see In re
Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45
Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into other
property and that they should respect the distribution made in the will,
under penalty of forfeiture of their shares in the free part do not suffice to
prove fraud or undue influence. They appear motivated by the desire to
prevent prolonged litigation which, as shown by ordinary experience, often
results in a sizeable portion of the estate being diverted into the hands of
non-heirs and speculators. Whether these clauses are valid or not is a
matter to be litigated on another occassion. It is also well to note that, as
remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168,
fraud and undue influence are mutually repugnant and exclude each other;
their joining as grounds for opposing probate shows absence of definite
evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness
to affix his signature to one page of a testament, due to the simultaneous
lifting of two pages in the course of signing, is not per se sufficient to justify
denial of probate. Impossibility of substitution of this page is assured not
only the fact that the testatrix and two other witnesses did sign the
defective page, but also by its bearing the coincident imprint of the seal of
the notary public before whom the testament was ratified by testatrix and all
three witnesses. The law should not be so strictly and literally interpreted
as to penalize the testatrix on account of the inadvertence of a single
witness over whose conduct she had no control, where the purpose of the
law to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at
1479 (decision on reconsideration) "witnesses may sabotage the will by
muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by the
duplicate copy of the will, which bears a complete set of signatures in every
page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the
time.

This would not be the first time that this Court departs from a strict and
literal application of the statutory requirements, where the purposes of the
law are otherwise satisfied. Thus, despite the literal tenor of the law, this
Court has held that a testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the pages of a will, the failure to
make the first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to
require satisfaction of the legal requirements in order to guard against fraud
and bid faith but without undue or unnecessary curtailment of the
testamentary privilege.

The appellants also argue that since the original of the will is in existence
and available, the duplicate (Exh. A-1) is not entitled to probate. Since they
opposed probate of original because it lacked one signature in its third
page, it is easily discerned that oppositors-appellants run here into a
dilemma; if the original is defective and invalid, then in law there is no other
will but the duly signed carbon duplicate (Exh. A-1), and the same is
probatable. If the original is valid and can be probated, then the objection to
the signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the
omission of one signature in the third page of the original testament was
inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without
a new publication does not affect the jurisdiction of the probate court,
already conferred by the original publication of the petition for probate. The
amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no
showing is made that new interests were involved (the contents of Exhibit A
and A-1 are admittedly identical); and appellants were duly notified of the
proposed amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed,

with costs against appellants.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes,

Regala and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.

Case Digest:
Icasiano v. Icasiano
11 SCRA 422

FACTS:
Celso Icasiano filed a petition for the allowance and admission to probate
of the alleged will of Josefa Villacorte, and for his appointment as executor
thereof. Natividad and Enrique Icasiano, a daughter and son of the
testatrix, filed their opposition thereto. During the course of the trial, on 19
March 1959, Celso, started to present his evidence. But later, on 1 June
1959, he then filed an amended and supplemental petition, alleging that the
decedent had left a will executed in duplicate and with all the legal
requirements, and that he was submitting the duplicate to the court, which
he found only on 26 May 1959. Natividad and Enrique filed their opposition,
but the will and its duplicate was admitted to probate by the trial court.
Hence, this appeal by the oppositors.

Oppositors-appellants (Natividad and Enrique) in turn introduced expert

testimony to the effect that the signatures of the testatrix in the duplicate
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.

ISSUE:

Was the trial court correct in admitting the will and its duplicate to probate
given the allegations of forgery of the testator’s signature, or that the will
was executed under circumstances constituting fraud and undue influence
and pressure?

(Not raised by the appellants in the case but discussed by the Court and in
Sir’s book) Is the failure of one of the witnesses to sign a page of the will
fatal to its validity?

HELD:
The Supreme Court dismissed the appeal, holding that both the will and its
duplicate are valid in all respects.

On the allegations of forgery, fraud and undue influence:

The Court is satisfied that all the requisites for the validity of a will have
been complied with. The opinion of a handwriting expert trying to prove
forgery of the testatrix’s signature failed to convince the Court, not only
because it is directly contradicted by another expert but principally because
of the paucity of the standards used by him (only three other signatures),
considering the advanced age of the testatrix, the evident variability of her
signature, and the effect of writing fatigue.

Similarly, the alleged slight variance in blueness of the ink in the admitted
and questioned signatures does not appear reliable, considering that
standard and challenged writings were affixed to different kinds of paper,
with different surfaces and reflecting power. On the whole, the testimony of
the oppositor’s expert is insufficient to overcome that of the notary and the
two instrumental witnesses as to the will’s execution, which were presented
by Celso during the trial.

Nor is there adequate evidence of fraud or undue influence. The fact that
some heirs are more favored than others is proof of neither. Diversity of
apportionment is the usual reason for making a testament; otherwise, the
decedent might as well die intestate. The testamentary disposition 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 occasion. It is
also well to note that 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 failure of a witness to sign a page in the original, but signed all
pages in the duplicate:
The records show that the original of the will 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 3
thereof; but the duplicate copy attached to the amended and supplemental
petition is signed by the testatrix and her three attesting witnesses in each
and every page.

Witness Atty. Natividad, who testified on his failure to sign page 3 of the
original, admits that he may have lifted two pages instead of one when he
signed the same, but affirmed that page 3 was signed in his presence.

The failure Atty. 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.
Therefore, Atty. Natividad’s failure to sign page 3 of the original through
mere inadvertence does not affect the will’s validity.

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.

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
mark 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 bad 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 is not entitled to probate. Since they opposed
probate of the 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, 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 serves to prove that the omission of one signature in the third
page of the original testament was inadvertent and not intentional.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5826 April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-

appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

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

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

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

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

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

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

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,

vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I,
Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of

Cebu allowing the probate of the last will a testament of the late Valente Z.
Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said
decease opposed the allowance of the will (Exhibit "E"), alleging the will
was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was execute without the testator having
been fully informed of the content thereof, particularly as to what properties
he was disposing and that the supposed last will and testament was not
executed in accordance with law. Notwithstanding her objection, the Court
allowed the probate of the said last will and testament Hence this appeal by
certiorari which was given due course.

The only question presented for determination, on which the decision of the
case hinges, is whether the supposed last will and testament of Valente Z.
Cruz (Exhibit "E") was executed in accordance with law, particularly Articles
805 and 806 of the new Civil Code, the first requiring at least three credible
witnesses to attest and subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T.

Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of
them, the last named, is at the same time the Notary Public before whom
the will was supposed to have been acknowledged. Reduced to simpler
terms, the question was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each other, considering
that the three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before
the notary public to acknowledge the will. On the other hand, private
respondent-appellee, Manuel B. Lugay, who is the supposed executor of
the will, following the reasoning of the trial court, maintains that there is
substantial compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of them,
bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the
purely technical reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature under oath
rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are
inclined to sustain that of the appellant that the last will and testament in
question was not executed in accordance with law. The notary public
before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow (Javellana v.
Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own
as genuine, to assent, to admit; and "before" means in front or preceding in
space or ahead of. (The New Webster Encyclopedic Dictionary of the
English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p.
245.) Consequently, if the third witness were the notary public himself, he
would have to avow assent, or admit his having signed the will in front of
himself. This cannot be done because he cannot split his personality into
two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to obtain
would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard

against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G.
583.) That function would defeated if the notary public were one of the
attesting instrumental witnesses. For them he would be interested
sustaining the validity of the will as it directly involves him and the validity of
his own act. It would place him in inconsistent position and the very
purpose of acknowledgment, which is to minimize fraud (Report of Code
Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may,
in addition, act as a witness to the executive of the document he has
notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482;
Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely
as notary in a will nonetheless makes him a witness thereon (Ferguson v.
Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal
v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's
Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of
the law in this jurisdiction or are not decisive of the issue herein because
the notaries public and witnesses referred to aforecited cases merely acted
as instrumental, subscribing attesting witnesses, and not as acknowledging
witnesses. He the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the Civil
Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain
a copy of the will or file another with the office of the Clerk of Court.
[Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two
attesting witnesses to the will which would be in contravention of the
provisions of Article 80 be requiring at least three credible witnesses to act
as such and of Article 806 which requires that the testator and the required
number of witnesses must appear before the notary public to acknowledge
the will. The result would be, as has been said, that only two witnesses
appeared before the notary public for or that purpose. In the circumstances,
the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby

reversed and the probate of the last will and testament of Valente Z. Cruz
(Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ.,

concur.

Garcia vs Vasquez

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND

FOR DISALLOWANCE; TESTATRIX’S DEFECTIVE EYESIGHT AS
UNABLING HER TO READ THE PROVISIONS OF LATER WILL.— The
declarations in court of the opthalmologist as to the condition of the
testatrix’s eyesight fully establish the fact that her vision remained mainly
for viewing distant objects and not for reading print; that she was, at the
time of the execution of the second will on December 29, 1960, incapable
of reading and could not have read the provisions of the will supposedly
signed by her.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE

WILL; CASE AT BAR.— Upon its face, the testamentary provisions, the
attestation clause and acknowledgment were crammed together into a
single sheet of paper, apparently to save on space. Plainly, the testament
was not prepared with any regard for the defective vision of Dña. Gliceria,
the typographical errors remained uncorrected thereby indicating that the
execution thereof must have been characterized by haste. It is difficult to
understand that so important a document containing the final disposition of
one’s worldly possessions should be embodied in an informal and untidy
written instrument; or that the glaring spelling errors should have escaped
her notice if she had actually retained the ability to read the purported will
and had done so.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY;

ART. 808, NEW CIVIL CODE — READING OF THE WILL TWICE TO A
BLIND TESTATOR; PURPOSE.— The rationale behind the requirement of
reading the will to the testator if he is blind or incapable of reading the will
himself is to make the provisions thereof known to him, so that he may be
able to object if they are not in accordance with his wishes.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.—
Where as in the 1960 will there is nothing in the record to show that the
requisites of Art. 808 of the Civil Code of the Philippines that "if the testator
is blind, the will shall be read to him twice," have not been complied with,
the said 1960 will suffer from infirmity that affects its due execution.

DECISION

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

G.R. No. L-27200 is an appeal from the order of the Court of First Instance
of Manila (in Sp. Proc. No. 62618) admitting to probate the alleged last will
an, testament of the late Gliceria Avelino del Rosario dated 29 December
1960. G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus
filed by certain alleged heirs of said decedent seeking (1) to compel the
probate court to remove Consuelo S. Gonzales-Precilla as special
administratrix of the estate, for conflict of interest, to appoint a new one in
her stead; and (2) to order the Register of Deeds of Manila to annotate
notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in
the name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and
said to be properly belonging to the estate of the deceased Gliceria A. del
Rosario.

Insofar as pertinent to the issues involved herein, the facts of these cases
may be stated as follows:chanrob1es virtual 1aw library
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2
September 1965, leaving no descendents, ascendants, brother or sister. At
the time of her death, she was said to be 90 years old more or less, and
possessed of an estate consisting mostly of real properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of

the deceased, petitioned the Court of First Instance of Manila for probate of
the alleged last will and testament of Gliceria A. del Rosario, executed on
29 December 1960, and for her appointment as special administratrix of the
latter’s estate, said to be valued at about P100,000.00, pending the
appointment of a regular administrator thereof.

The petition was opposed separately by several groups of alleged heirs: (1)
Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will executed by
Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and children,
relatives and legatees in both the 1956 and 1960 wills; Antonio Jesus de
Praga and Marta Natividad de Jesus, wards of the deceased and legatees
in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all
surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso;
(6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa,
surnamed Narciso, and Vicente and Delfin, surnamed Mauricio, — the
latter five groups of persons all claiming to be relatives of Doña Gliceria
within the fifth civil degree. The oppositions invariably charged that the
instrument executed in 1960 was not intended by the deceased to be her
true will; that the signatures of the deceased appearing in the will was
procured through undue and improper pressure and influence the part of
the beneficiaries and/or other persons; that the testatrix did not know the
object of her bounty; that the instrument itself reveals irregularities in its
execution, and that the formalities required by law for such execution have
not been complied with.

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of
the deceased, joined the group of Dr. Jaime Rosario in registering
opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de
Precilla as special administratrix, on the ground that the latter possesses
interest adverse to the estate. After the parties were duly heard, the
probate court, in its order of 2 October 1965, granted petitioner’s prayer
and appointed her special administratrix of the estate upon a bond for
P30,000.00. The order was premised on the fact the petitioner was
managing the properties belonging to the estate even during the lifetime of
the deceased, and to appoint another person as administrator or co
administrator at that stage of the proceeding would only result in further
confusion and difficulties.

On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the
probate court an urgent motion to require the Hongkong & Shanghai Bank
to report all withdrawals made against the funds of the deceased after 2
September 1965. The court denied this motion on 22 October 1965 for
being premature, it being unaware that such deposit in the name of the
deceased existed. 1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and
children, Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V.
Garcia, petitioned the court for the immediate removal of the special
administratrix. It was their claim that the special administratrix and her
deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario
to execute a simulated and fraudulent deed of absolute sale dated 10
January 1961 allegedly conveying unto said spouses for the paltry sum of
P30,000.00 ownership of 3 parcels of land and the improvements thereon
located on Quiapo and San Nicolas, Manila, with a total assessed value of
P334,050.00. Oppositors contended that since it is the duty of the
administrator to protect and conserve the properties of the estate, and it
may become necessary that, an action for the annulment of the deed of
sale land for recovery of the aforementioned parcels of land be filed against
the special administratrix, as wife and heir of Alfonso Precilla, the removal
of the said administratrix was imperative.

On 17 December 1965, the same oppositors prayed the court for an order
directing the Special Administratrix to deposit with the Clerk of Court all
certificates of title belonging to the estate. It was alleged that on 22 October
1965, or after her appointment, petitioner Consuelo Gonzales Vda. de
Precilla, in her capacity as special administratrix of the estate of the
deceased Gliceria A. del Rosario, filed with Branch IV of the Court of First
Instance of Manila a motion for the issuance of new copies of the owner’s
duplicates of certain certificates of title in the name of Gliceria del Rosario,
supposedly needed by her "in the preparation of the inventory" of the
properties constituting the estate. The motion having been granted, new
copies of the owner’s duplicates of certificates appearing the name of
Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and
66204) were issued on 15 November 1965. On 8 December 1965,
according to the oppositors, the same special administratrix presented to
the Register of Deeds the deed of sale involving properties covered by TCT
Nos. 66201, 66202 and 66204 supposedly executed by Gliceria del
Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in
consequence, said certificates of title were cancelled and new certificates
(Nos. 81735, 81736 and 81737) were issued in the name of Alfonso
Precilla, married to Consuelo S. Gonzales y Narciso.

On 25 August 1966, the Court issued an order admitting to probate the

1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the due
execution of the will, the probate court took note that no evidence had been
presented to establish that the testatrix was not of sound mind when the
will was executed; that the fact that she had prepared an earlier will did not,
prevent her from executing another one thereafter; that the fact that the
1956 will consisted of 12 pages whereas the 1960 testament was
contained in one page does not render the latter invalid; that, the erasures
and alterations in the instrument were insignificant to warrant rejection; that
the inconsistencies in the testimonies of the instrumental witnesses which
were noted by the oppositors are even indicative of their truthfulness. The
probate court, also considering that petitioner had already shown capacity
to administer the properties of the estate and that from the provisions of the
will she stands as the person most concerned and interested therein,
appointed said petitioner regular administratrix with a bond for P50,000.00.
From this order all the oppositors appealed, the case being docketed in this
Court as G.R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors’

motion of 14 December 1965 for the removal of the then special
administratrix, as follows:jgc:chanrobles.com.ph

"It would seem that the main purpose of the motion to remove the special
administratrix and to appoint another one in her stead, is in order that an
action may be filed against the special administratrix for the annulment of
the deed of sale executed by the decedent on January 10, 1961. Under
existing documents, the properties sold pursuant to the said deed of
absolute sale no longer forms part of the estate. The alleged conflict of
interest is accordingly not between different claimants of the same estate. If
it is desired by the movants that an action be filed by them to annul the
aforesaid deed absolute sale, it is not necessary that the special
administratrix be removed and that another one be appointed to file such
action. Such a course of action would only produce confusion and
difficulties in the settlement of the estate. The movants may file the
aforesaid proceedings, preferably in an independent action, to secure the
nullity of the deed of absolute even without leave of this court:"

As regard the motion of 17 December 1965 asking for the deposit in court
of the titles in the name of the decedent, the same was also denied, for the
reason that if the movants were referring to the old titles, they could no
longer be produced, and if they meant the new duplicate copies thereof that
were issued at the instance of the special administratrix, there would be no
necessity therefor, because they were already cancelled and other
certificates were issued in the name of Alfonso Precilla. This order
precipitated the oppositors’ filing in this Court of a petition for mandamus
(G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado
M. Vasquez, Et. Al.), which was given due course on 6 October 1966.

On 15 December 1965, with that motion for removal pending in the court,
the oppositors requested the Register of Deeds of Manila to annotate a
notice of lis pendens in the records of TCT Nos. 81735, 81736, and 81737
in the name of Alfonso Precilla. And when said official refused to do so,
they applied to the probate court (in Sp. Proc. No. 62618) for an order to
compel the Register of Deeds to annotate a lis pendens notice in the
aforementioned titles contending that the matter of removal and
appointment of the administratrix, involving TCT Nos. 81735, 81736, and
81737, was already before the Supreme Court. Upon denial of this motion
on 12 November 1966, oppositors filed another mandamus action, this time
against the probate court and the Register of Deeds. The case was
docketed and given due course in this Court as G.R. No. L-26864.

Foremost of the questions to be determined here concerns the correctness

of the order allowing the probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the
testatrix, Gliceria A. del Rosario, during her lifetime, executed two wills: one
on 9 June 1956 consisting of 12 pages and written in Spanish, a language
that she knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y.
Ayala and Valentin Marquez, and acknowledged before notary public Jose
Ayala; and another dated 29 December 1960, consisting of 1 page and
written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco
Decena, and Francisco Lopez and acknowledged before notary public
Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental

witnesses Decena, Lopez and Rosales uniformly declared that they were
individually requested by Alfonso Precilla (the late husband of petitioner
special administratrix) to witness the execution of the last will of Doña
Gliceria A. del Rosario; that they arrived at the house of the old lady at No.
2074 Azcarraga, Manila, one after the other, in the afternoon of 29
December 1960; that the testatrix at the time was apparently of clear and
sound mind, although she was being aided by Precilla when she walked; 3
that the will, which was already prepared, was first read "silently" by the
testatrix herself before she signed it; 4 that he three witnesses thereafter
signed the will in the presence of the testatrix and the notary public and of
one another. There is also testimony that after the testatrix and the
witnesses to the will acknowledged the instrument to be their voluntary act
and deed, the notary public asked for their respective residence certificates
which were handed to him by Alfonso Precilla, clipped together; 5 that after
comparing them with the numbers already written on the will, the notary
public filled in the blanks in the instrument with the date, 29 January 1960,
before he affixed his signature and seal thereto. 6 They also testified that
on that occasion no pressure or influence has been exerted by any person
upon the testatrix to execute the will.

Of course, the interest and active participation of Alfonso Precilla in the

signing of this 1960 will are evident from the records. The will appeared to
have been prepared by one who is not conversant with the spelling of
Tagalog words, and it has been shown that Alfonso Precilla is a Cebuano
who speaks Tagalog with a Visayan accent. 7 The witnesses to the will,
two of whom are fellow Visayans, 8 admitted their relationship or closeness
to Precilla. 9 It was Precilla who instructed them to go to the house of
Gliceria del Rosario on 29 December 1960 to witness an important
document, 10 and who took their residence certificates from them a few
days before the will was signed. 11 Precilla had met the notary public and
witnesses Rosales and Lopez at the door of the residence of the old
woman; he ushered them to the room at the second floor where the signing
of the document took place; 12 then he fetched witness Decena from the
latter’s haberdashery shop a few doors away and brought him to, the house
the testatrix. 13 And when the will was actually executed Precilla was
present. 14
The oppositors-appellants in the present case, however, challenging the
correctness of the probate court’s ruling, maintain that on 29 December
1960 the eyesight of Gliceria del Rosario was so poor and defective that
she could not have read the provisions of the will, contrary to the
testimonies of witnesses Decena, Lopez and Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very
material and illuminating. Said ophthalmologist, whose expertise was
admitted by both parties, testified, among other things, that when Doña
Gliceria del Rosario saw him for consultation on 11 March 1960 he found
her left eye to have cataract (opaque lens), 15 and that it was "above
normal in pressure", denoting a possible glaucoma, a disease that leads to
blindness 16 As to the conditions of her right eye, Dr. Tamesis
declared:jgc:chanrobles.com.ph

"Q But is there anything here in the entry appearing in the other
documents Exhibits 3-B, 3-C and 3-D from which you could inform the court
as to the condition of the vision of the patient as to the right eve?

"A Under date of August 30, 1960, is the record of refraction. that is
setting of glass by myself which showed that the right eye with my
prescription of glasses had a vision of 2 over 60 (20/60) and for the left eye
with her correction 20 over 300 (20/300).

"Q In layman’s language, Doctor, what is the significance of that notation

that the right had a degree of 20 over 60 (20/60)?

"A It meant that eye at least would be able to recognize objects or

persons at a minimum distance of twenty feet.

"Q But would that grade enable the patient to read print?

"A Apparently that is only a record for distance vision, for distance sight,
not for near."cralaw virtua1aw library

(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of
the decedent at the Lourdes Hospital on 8 August 1960; as of 23 August
1960, inspite of the glasses her vision was only "counting fingers," 17 at
five feet. The cross-examination of the doctor further elicited the following
responses:jgc:chanrobles.com.ph

"Q After she was discharged from the hospital you prescribed lenses for
her, or glasses?

"A After her discharge from the hospital, she was coming to my clinic for
further examination and then sometime later glasses were prescribed.

x x x

"Q And the glasses prescribed by you enabled her to read, Doctor?

"A As far as my record is concerned, with the glasses for the left eye
which I prescribed — the eye which I operated — she could see only forms
but not read. That is on the left eye.

"Q How about the right eye?

"A The same, although the vision on the right eye is even better than the
left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).

Then, confronted with a medical certificate (Exhibit H) issued by him on 29

November 1965 certifying that Gliceria del Rosario was provided with
aphakic lenses and "had been under medical supervision up to 1963 with
apparently good vision", the doctor had this to say:jgc:chanrobles.com.ph

"Q When yon said that she had apparently good vision you mean that
she was able to read?

"A No, not necessarily, only able to go around, take care of herself and
see. This I can tell you, this report was made on pure recollections and I
recall she was using her glasses although I recall also that we have to give
her medicines to improve her vision, some medicines to improve her
identification some more.

x x x
"Q What about the vision in the right eve, was that corrected by the
glasses?

"A Yes, with the new prescription which I issued on 80 August 1960. It is
in the clinical record.

"Q The vision in the right eye was corrected?

"A Yes That is the vision for distant objects."cralaw virtua1aw library

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased

and, therefore, has first hand knowledge of the actual condition of her
eyesight from August, 1960 up to 1963, fully establish the fact that
notwithstanding the operation and removal of the cataract in her left eye
and her being fitted with aphakic lens (used by cataract patients), her vision
remained mainly for viewing distant objects and not for reading print. Thus,
the conclusion is inescapable that with the condition of her eyesight in
August, 1960, and there is no evidence that it had improved by 29
December 1960, Gliceria del Rosario was incapable f reading, and could
not have read the provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instrumental witnesses stated
that she read the instrument "silently" (t.s.n., pages 164-165). which is a
conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the

appearance of the will, Exhibit "D", acquires striking significance. Upon its
face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper, to
much so that the words had to be written very close on the top, bottom and
two sides of the paper, leaving no margin whatsoever; the word "and" had
to be written by the symbol" &", apparently to save on space. Plainly, the
testament was not prepared with any regard for the defective vision of
Doña Gliceria. Further, typographical errors like "HULINH" for "HULING"
(last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES",
"instrumental" for "Instrumental", and "acknowledged" for "acknowledge’’,
remained uncorrected, thereby indicating that execution thereof must have
been characterized by haste. It is difficult to understand that so important a
document containing the final disposition of one’s worldly possessions
should be embodied in an informal and untidily written instrument; or that
the glaring spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had done so. The
record is thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D", and that
its admission to probate was erroneous and should be reversed.

That Doña Gliceria should be able to greet her guests on her birthday,
arrange flowers and attend to kitchen tasks shortly prior to the alleged
execution of the testament Exhibit "D", as appears from the photographs,
Exhibits "E" to "E-1", in no way proves; that she was able to read a closely
typed page, since the acts shown do not require vision at close range. It
must be remembered that with the natural lenses removed, her eyes had
lost the power of adjustment to near vision, the substituted glass lenses
being rigid and uncontrollable by her. Neither is the signing of checks
(Exhibits "G" to "G-3") by her indicative of ability to see at normal reading
distances. Writing or signing of one’s name, when sufficiently practiced,
becomes automatic, so that one need only to have a rough indication of the
place where the signature is to be affixed in order to be able to write it.
Indeed, a close examination of the checks, amplified in the photograph,
Exhibit "O", et seq., reinforces the contention of oppositors that the alleged
testatrix could not see at normal reading distance: the signatures in the
checks are written far above the printed base, lines, and the names of the
payees as well as the amounts written do not appear to be in the
handwriting of the alleged testatrix, being in a much firmer and more fluid
hand than hers.

Thus, for all intents and purpose of the rules on probate, the deceased
Gliceria del Rosario was, as appellant oppositors contend, not unlike a
blind testator, and the due execution of her will would have required
observance of the provisions of Article 808 of the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once,
by one of the subscribing witnesses, and again, by the notary public before
whom the will is acknowledged."cralaw virtua1aw library

The rationale behind the requirement of reading the will to the testator if he
is blind or incapable of reading the will himself (as when he is illiterate), 18
is to make the provisions thereof known to him, so that he may be able to
object if they are not in accordance with his wishes. That the aim of the law
is to insure that the dispositions of the will are properly communicated to
and understood by the handicapped testator, thus making them truly
reflective of his desire, is evidenced by the requirement that the will should
be read to the latter, not only once but twice, by two different persons, and
that the witnesses have to act within the range of his (the testator’s) other
senses. 19

In connection with the will here in question, there is nothing in the records
to show that the above requisites have been complied with. Clearly, as
already stated, the 1960 will sought to be probated suffers from infirmity
that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al.,

against the denial by the probate court of their petition for the removal of
Consuelo Gonzales Vda. de Precilla as special administratrix of the estate
of the deceased Doña Gliceria (Petition, G.R. No. L-26615, Annex "B").

The oppositors’ petition was based allegedly on the existence in the special
administratrix of an interest adverse to that of the estate. It was their
contention that through fraud her husband had caused the deceased
Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by
virtue of which the latter purportedly conveyed unto said Alfonso D.
Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3
parcels of land and the improvements thereon, assessed at P334,050.00,
for the sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966
(Annex "P", Petition) reasoned out that since the properties were already
sold no longer form part of the estate. The conflict of interest would not be
between the estate and third parties, but among the different claimants of
said properties, in which case, according to the court, the participation of
the special administratrix in the action for annulment that may be brought
would not be necessary.

The error in this line of reasoning lies in the fact that what was being
questioned was precisely the validity of the conveyance or sale of the
properties. In short, if proper, the action for annulment would have to be
undertaken on behalf of the estate by the special administratrix, affecting
as it does the property or rights of the deceased. 20 For the rule is that only
where there is no special proceeding for the settlement of the estate of the
deceased may the legal heirs commence an action arising out of a right
belonging to their ancestor. 21

There is no doubt that to settle the question of the due execution and
validity of the deed of sale, an ordinary and separate action would have to
be instituted, the matter not falling within the competence of the probate
court. 22 Considering the facts then before it, i.e., the alleged deed of sale
having been executed by Gliceria del Rosario on 10 January 1961, when
she was already practically blind; and that the consideration of P30,000.00
seems to be unconscionably small for properties with a total assessed
value of P334,050.00, there was likelihood that a case for annulment might
indeed be filed against the estate or heirs of Alfonso Precilla. And the
administratrix, being the widow and heir of the alleged transferee, cannot
be expected to sue herself in an action to recover property that may turn
out to belong to the estate. 22 Not only this, but the conduct of the special
administratrix in securing new copies of the owner’s duplicates of TCT Nos.
66201, 66202, and 66204, without the court’s knowledge or authority, and
on the pretext that she needed them in the preparation of the inventory of
the estate, when she must have already known by then that the properties
covered therein were already "conveyed" to her husband by the deceased,
being the latter’s successor, and having the contract bind the land through
issuance of new titles in her husband’s name cannot but expose her to the
charge of unfitness or unsuitableness to discharge the trust, justifying her
removal from the administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors’
motion to require the Hongkong and Shanghai Bank to report all
withdrawals made against the funds of the deceased after 2 September
1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos.
81735, 81736 and 81737, the same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H")
that it could not have taken action on the complaint against the alleged
withdrawals from the bank deposits of the deceased, because as of that
time the court had not yet been apprised that such deposits exist.
Furthermore, as explained by the special administratrix in her pleading of
30 October 1965, the withdrawals referred to by the oppositors could be
those covered by checks issued in the name of Gliceria del Rosario during
her lifetime but cleared only after her death. That explanation, which not
only appears plausible but has not been rebutted by the petitioners-
oppositors, negates any charge of grave abuse in connection with the
issuance of the order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the
Rules of Court are clear: notice of the pendency of an action may be
recorded in the office of the register of deeds of the province in which the
property is situated, if the action affects "the title or the right of possession
of (such) real property." 23 In the case at bar, the pending action which
oppositors seek to annotate in the records of TCT Nos. 81735, 81736, and
81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615).
As previously discussed in this opinion, however, that case is concerned
merely with the correctness of the denial by the probate court of the motion
for the removal of Consuelo Gonzales Vda. de Precilla as special
administratrix of the estate of the late Gliceria del Rosario. In short, the
issue in controversy there is simply the fitness or unfitness of said special
administratrix to continue holding the trust; it does not involve or affect at all
the title to, or possession of, the properties covered by said TCT Nos.
81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is
not an action that can properly be annotated in the record of the titles to the
properties.

FOR THE FOREGOING REASONS, the order of the court below allowing
to probate the alleged 1960 will of Gliceria A. del Rosario is hereby
reversed and set aside. The petition in G.R. No. L-26615 being meritorious,
the appealed order is set aside and the court below is ordered to remove
the administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of
the heirs intestate of the deceased Doña Gliceria Avelino del Rosario as
special administrator for the purpose of instituting action on behalf of her
estate to recover the properties allegedly sold by her to the late Alfonso D.
Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.

Concencion, C.J., Dizon, Makalintal, Fernando, Teehankee and Villamor,

JJ., concur.

Zaldivar and Castro, JJ., took no part.

Barredo, J., is on leave.

Case Digest:

Garcia v. Vasquez
32 SCRA 489

FACTS:

This is a petition for appeal from the CFI of Manila admitting to probate the
will of Gliceria Avelino del Rosario (“Gliceria”) executed in 1960. Likewise,
this is also an appeal to remove the current administrator, Consuelo
Gonzales-Precilla( “Consuelo”) as special administratrix of the estate on
the ground of Consuelo possesses interest adverse to the estate and to
order the RD of Manila to annotate on the registered lands a notice of Lis
Pendens.
When Gliceria died she had no descendants, ascendants, bros or sisses
and 90 yrs old. After which, her niece, Consuelo petitioned the court to be
the administratrix of the properties. The court approved this because
Consuelo has been was already managing the properties of the deceased
during her lifetime. What the respondents allege is that in the last years of
the deceased, Consuelo sought the transfer of certain parcels of land
valued at 300k for a sale price of 30k to her husband Alfonso through fraud
and intimidation. In addition, the oppositors presented evidence that
Consuelo asked the court to issue new Certificates of Titles to certain
parcels of land for the purpose of preparing the inventory to be used in the
probate. Also shown was that NEW TCTs were issued by the RD for
certain lands of the deceased after Consuelo asked for the old TCTs.
At the end of the probate proceedings, the court ruled that Counsuelo
should be made the administrator, and that the will was duly executed
because of these reasons: NO EVIDENCE HAS BEEN PRESENTED to
establish that the deceased was not of sound mind, that eventough the
allegations state that the deceased prepared another will in 1956
(12pages), the latter is not prevented from executing another will in 1960
(1page), and that inconsistencies in the testimonies of the witnesses prove
their truthfulness.

ISSUE:
Was the will in 1960 (1 page) duly/properly executed?

HELD:

NO. Provision of Article 808 mandatory. Therefore, For all intents and
purposes of the rules on probate, the testatrix was like a blind testator, and
the due execution of her will would have required observance of Article
808. The rationale behind the requirement of reading the will to the testator
if he is blind or incapable of reading the will himself (as when he is illiterate)
, is to make the provisions thereof known to him, so that he may be able to
object if they are not in accordance with his wishes. Likewise, the 1970 will
was done in Tagalog which the deceased is not well versed but in Spanish.
This creates doubt as to the due execution of the will and as well as the
typographical errors contain therein which show the haste in preparing the
1 page will as compared to the 12 page will created in 1956 written in
Spanish. ALSO, as to the blindness, there was proof given by the testimony
of the doctor that the deceased could not read at near distances because
of cataracts. (Testatrix’s vision was mainly for viewing distant objects and
not for reading print.) Since there is no proof that it was read to the
deceased twice, the will was NOT duly executed.
ALSO, Consuelo should be removed as administrator because she is not
expected to sue her own husband to reconvey the lands to the estate
alleged to have been transferred by the deceased to her own husband.
The notice of lis pendens is also not proper where the issue is not an action
in rem, affecting real property or the title thereto.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION
G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the
Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate
Justices, Intermediate Appellate Court, First Division (Civil Cases), and
BAYANI MA. RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 19861 of the First
Civil Cases Division of the then Intermediate Appellate Court, now Court of
Appeals, which affirmed the Order dated 27 June 19832 of the Regional
Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament3 with codicil4 of the late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial

will entitled "Huling Habilin" wherein he disinherited an illegitimate son
(petitioner) and expressly revoked a previously executed holographic will at
the time awaiting probate before Branch 4 of the Regional Trial Court of
sta. Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by

private respondent who were present at the execution, the testator did not
read the final draft of the will himself. Instead, private respondent, as the
lawyer who drafted the eight-paged document, read the same aloud in the
presence of the testator, the three instrumental witnesses and the notary
public. The latter four followed the reading with their own respective copies
previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate

on 9 December 1977. On the 29th day of the same month, a codicil entitled
"Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling
Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was
executed changing some dispositions in the notarial will to generate cash
for the testator's eye operation. Brigido was then suffering from glaucoma.
But the disinheritance and revocatory clauses were unchanged. As in the
case of the notarial will, the testator did not personally read the final draft of
the codicil. Instead, it was private respondent who read it aloud in his
presence and in the presence of the three instrumental witnesses (same as
those of the notarial will) and the notary public who followed the reading
using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the
testator's death on 3 January 1979 by private respondent as executor with
the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna.5
Petitioner, in turn, filed an Opposition on the following grounds: that the will
sought to be probated was not executed and attested as required by law;
that the testator was insane or otherwise mentally incapacitated to make a
will at the time of its execution due to senility and old age; that the will was
executed under duress, or influence of fear and threats; that it was
procured by undue and improper pressure and influence on the part of the
beneficiary who stands to get the lion's share of the testator's estate; and
lastly, that the signature of the testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied

upon in the Opposition, a Probate Order was issued on 27 June 1983 from
which an appeal was made to respondent court. The main thrust of the
appeal was that the deceased was blind within the meaning of the law at
the time his "Huling Habilin" and the codicil attached thereto was executed;
that since the reading required by Art. 808 of the Civil Code was admittedly
not complied with, probate of the deceased's last will and codicil should
have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review
with the following findings: that Brigido Alvarado was not blind at the time
his last will and codicil were executed; that assuming his blindness, the
reading requirement of Art. 808 was substantially complied with when both
documents were read aloud to the testator with each of the three
instrumental witnesses and the notary public following the reading with their
respective copies of the instruments. The appellate court then concluded
that although Art. 808 was not followed to the letter, there was substantial
compliance since its purpose of making known to the testator the contents
of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind
for purpose of Art, 808 at the time his "Huling Habilin" and its codicil were
executed? If so, was the double-reading requirement of said article
complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were executed.
However, his vision on both eyes was only of "counting fingers at three (3)
feet" by reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an eye specialist
on
14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify

Brigido as a "blind" testator under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once,
by one of the subscribing witnesses, and again, by the notary public before
whom the will is acknowledged.

Petitioner contends that although his father was not totally blind when the
will and codicil were executed, he can be so considered within the scope of
the term as it is used in Art. 808. To support his stand, petitioner presented
before the trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology (Philippine Eye Research
Institute),6 the contents of which were interpreted in layman's terms by Dr.
Ruperto Roasa, whose expertise was admitted by private respondent.7 Dr.
Roasa explained that although the testator could visualize fingers at three
(3) feet, he could no longer read either printed or handwritten matters as of
14 December 1977, the day of his first consultation.8

On the other hand, the Court of Appeals, contrary to the medical testimony,
held that the testator could still read on the day the will and the codicil were
executed but chose not to do so because of "poor eyesight."9 Since the
testator was still capable of reading at that time, the court a quo concluded
that Art. 808 need not be complied with.
We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still

capable of reading at the time his will and codicil were prepared, the fact
remains and this was testified to by his witnesses, that Brigido did not do so
because of his "poor," 10 "defective," 11 or "blurred"12 vision making it
necessary for private respondent to do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez 13 provides an insight

into the scope of the term "blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he
is blind or incapable of reading the will himself (as when he is illiterate), is
to make the provisions thereof known to him, so that he may be able to
object if they are not in accordance with his wishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators
but also to those who, for one reason or another, are "incapable of reading
the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final
drafts of his will and codicil on the separate occasions of their execution
due to his "poor," "defective," or "blurred" vision, there can be no other
course for us but to conclude that Brigido Alvarado comes within the scope
of the term "blind" as it is used in Art. 808. Unless the contents were read
to him, he had no way of ascertaining whether or not the lawyer who
drafted the will and codicil did so confortably with his instructions. Hence, to
consider his will as validly executed and entitled to probate, it is essential
that we ascertain whether Art. 808 had been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will
shall be read twice; once, by one of the instrumental witnesses and, again,
by the notary public before whom the will was acknowledged. The purpose
is to make known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to object if
anything is contrary to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary
public and an instrumental witness, it was the lawyer (private respondent)
who drafted the eight-paged will and the five-paged codicil who read the
same aloud to the testator, and read them only once, not twice as Art. 808
requires.
Private respondent however insists that there was substantial compliance
and that the single reading suffices for purposes of the law. On the other
hand, petitioner maintains that the only valid compliance or compliance to
the letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been disallowed.

We sustain private respondent's stand and necessarily, the petition must

be denied.

This Court has held in a number of occasions that substantial compliance is

acceptable where the purpose of the law has been satisfied, the reason
being that the solemnities surrounding the execution of wills are intended to
protect the testator from all kinds of fraud and trickery but are never
intended to be so rigid and inflexible as to destroy the testamentary
privilege. 14

In the case at bar, private respondent read the testator's will and codicil
aloud in the presence of the testator, his three instrumental witnesses, and
the notary public. Prior and subsequent thereto, the testator affirmed, upon
being asked, that the contents read corresponded with his instructions.
Only then did the signing and acknowledgement take place. There is no
evidence, and petitioner does not so allege, that the contents of the will and
codicil were not sufficiently made known and communicated to the testator.
On the contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony of
Atty. Rino is that Brigido Alvarado already acknowledged that the will was
drafted in accordance with his expressed wishes even prior to 5 November
1977 when Atty. Rino went to the testator's residence precisely for the
purpose of securing his conformity to the draft. 15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and the testator's
physician) asked the testator whether the contents of the document were of
his own free will. Brigido answered in the affirmative. 16 With four persons
following the reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what was read to
him (those which he affirmed were in accordance with his instructions),
were the terms actually appearing on the typewritten documents. This is
especially true when we consider the fact that the three instrumental
witnesses were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to him since
childhood.

The spirit behind the law was served though the letter was not. Although
there should be strict compliance with the substantial requirements of the
law in order to insure the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator's will. 17

As a final word to convince petitioner of the propriety of the trial court's

Probate Order and its affirmance by the Court of Appeals, we quote the
following pronouncement in Abangan v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution of wills is to close

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

Brigido Alvarado had expressed his last wishes in clear and unmistakable
terms in his "Huling Habilin" and the codicil attached thereto. We are
unwilling to cast these aside fro the mere reason that a legal requirement
intended for his protection was not followed strictly when such compliance
had been rendered unnecessary by the fact that the purpose of the law,
i.e., to make known to the incapacitated testator the contents of the draft of
his will, had already been accomplished. To reiterate, substantial
compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of
respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
Considering the length of time that this case has remained pending, this
decision is immediately executory. Costs against petitioner.

SO ORDERED.

Cruz, Griño-Aquino, Davide, Jr. and Quiason, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN

CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN
CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR
RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO
VELANO, and CONSESO CANEDA, represented herein by his heirs,
JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA,
petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on
certiorari is the issue of whether or not the attestation clause contained in
the last will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower

without any children and already in the twilight years of his life, executed a
last will and testament at his residence in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and
Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty.
Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will.1 It was declared therein, among other things,
that the testator was leaving by way of legacies and devises his real and
personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio
Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all
of whom do not appear to be related to the testator.2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a

petition docketed as Special Proceeding No. 3899-R before Branch II of the
then Court of First Instance of Cebu seeking the probate of his last will and
testament. The probate court set the petition for hearing on August 20,
1979 but the same and subsequent scheduled hearings were postponed
for one reason to another. On May 29, 1980, the testator passed away
before his petition could finally be heard by the probate court.3 On
February 25, 1981, Benoni Cabrera, on of the legatees named in the will,
sough his appointment as special administrator of the testator's estate, the
estimated value of which was P24,000.00, and he was so appointed by the
probate court in its order of March 6, 1981.4

Thereafter, herein petitioners, claiming to be nephews and nieces of the

testator, instituted a second petition, entitled "In the Matter of the Intestate
Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-
R, before Branch IX of the aforesaid Court of First Instance of Cebu. On
October 18, 1982, herein petitioners had their said petition intestate
proceeding consolidated with Special Proceeding No. 3899-R in Branch II
of the Court of First Instance of Cebu and opposed thereat the probate of
the Testator's will and the appointment of a special administrator for his
estate.5

Benoni Cabrera died on February 8, 1982 hence the probate court, now
known as Branch XV of the Regional Trial Court of Cebu, appointed
William Cabrera as special administrator on June 21, 1983. Thereafter, on
July 20, 1983, it issued an order for the return of the records of Special
Proceeding No. 3965-R to the archives since the testate proceeding for the
probate of the will had to be heard and resolved first. On March 26, 1984
the case was reraffled and eventually assigned to Branch XII of the
Regional Trial Court of Cebu where it remained until the conclusion of the
probate proceedings.6

In the course of the hearing in Special Proceeding No. 3899-R, herein

petitioners appeared as oppositors and objected to the allowance of the
testator's will on the ground that on the alleged date of its execution, the
testator was already in the poor state of health such that he could not have
possibly executed the same. Petitioners likewise reiterated the issue as to
the genuineness of the signature of the testator therein.7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and
the notary public Atty. Filoteo Manigos, testified that the testator executed
the will in question in their presence while he was of sound and disposing
mind and that, contrary to the assertions of the oppositors, Mateo Caballero
was in good health and was not unduly influenced in any way in the
execution of his will. Labuca also testified that he and the other witnesses
attested and signed the will in the presence of the testator and of each
other. The other two attesting witnesses were not presented in the probate
hearing as the had died by then.8

On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors

cannot overcome the positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that indeed Mateo Caballero
executed the Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the filing
of the original petition now marked Exhibit "D" clearly underscores the fact
that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit
"C" examined by a handwriting expert of the NBI but it would seem that
despite their avowal and intention for the examination of this signature of
Mateo Caballero in Exhibit "C", nothing came out of it because they
abandoned the idea and instead presented Aurea Caballero and Helen
Caballero Campo as witnesses for the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance with
all the requisites of the law.9

Undaunted by the said judgment of the probate court, petitioners elevated

the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted
therein that the will in question is null and void for the reason that its
attestation clause is fatally defective since it fails to specifically state that
the instrumental witnesses to the will witnessed the testator signing the will
in their presence and that they also signed the will and all the pages thereof
in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision 10

affirming that of the trial court, and ruling that the attestation clause in the
last will of Mateo Caballero substantially complies with Article 805 of the
Civil Code, thus:

The question therefore is whether the attestation clause in question may be

considered as having substantialy complied with the requirements of Art.
805 of the Civil Code. What appears in the attestation clause which the
oppositors claim to be defective is "we do certify that the testament was
read by him and the attestator, Mateo Caballero, has published unto us the
foregoing will consisting of THREE PAGES, including the acknowledgment,
each page numbered correlatively in letters of the upper part of each page,
as his Last Will and Testament, and he has signed the same and every
page thereof, on the spaces provided for his signature and on the left hand
margin in the presence of the said testator and in the presence of each and
all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need be

presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them and of
one another. Or as the language of the law would have it that the testator
signed the will "in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another." If not completely or ideally
perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the said ruling of respondent

court, but the same was denied in the latter's resolution of January 14,
1992, 12 hence this appeal now before us. Petitioners assert that
respondent court has ruled upon said issue in a manner not in accord with
the law and settled jurisprudence on the matter and are now questioning
once more, on the same ground as that raised before respondent court, the
validity of the attestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter,

after some prefatory observations which we feel should be made in aid of
the rationale for our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is

permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate after his death. 13 Under the Civil
Code, there are two kinds of wills which a testator may execute.14 the first
kind is the ordinary or attested will, the execution of which is governed by
Articles 804 to 809 of the Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.

The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.

The attestation should state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.

If the attestation clause is in a language not known to the witness, it shall

be interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public

by a testator and the attesting witness. 15 hence it is likewise known as
notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires
that he must personally read the will, if able to do so. Otherwise, he should
designate two persons who would read the will and communicate its
contents to him in a practicable manner. On the other hand, if the testator is
blind, the will should be read to him twice; once, by anyone of the
witnesses thereto, and then again, by the notary public before whom it is
acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as
one that is entirely written, dated, and signed by the testator himself. This
kind of will, unlike the ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of will is that they should be in writing
and must have been executed in a language or dialect known to the
testator. 17

However, in the case of an ordinary or attested will, its attestation clause

need not be written in a language or dialect known to the testator since it
does not form part of the testamentary disposition. Furthermore, the
language used in the attestation clause likewise need not even be known to
the attesting witnesses. 18 The last paragraph of Article 805 merely
requires that, in such a case, the attestation clause shall be interpreted to
said witnesses.
An attestation clause refers to that part of an ordinary will whereby the
attesting witnesses certify that the instrument has been executed before
them and to the manner of the execution the same. 19 It is a separate
memorandum or record of the facts surrounding the conduct of execution
and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been
observed. 20 It is made for the purpose of preserving in a permanent form
a record of the facts that attended the execution of a particular will, so that
in case of failure of the memory of the attesting witnesses, or other
casualty, such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack
of which would result in the invalidity of the will, 22 should state (1) the
number of the pages used upon which the will is written; (2) that the
testator signed, or expressly caused another to sign, the will and every
page thereof in the presence of the attesting witnesses; and (3) that the
attesting witnesses witnessed the signing by the testator of the will and all
its pages, and that said witnesses also signed the will and every page
thereof in the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages
on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or
decrease in the pages;23 whereas the subscription of the signature of the
testator and the attesting witnesses is made for the purpose of
authentication and identification, and thus indicates that the will is the very
same instrument executed by the testator and attested to by the
witnesses.24

Further, by attesting and subscribing to the will, the witnesses thereby

declare the due execution of the will as embodied in the attestation
clause.25 The attestation clause, therefore, provide strong legal guaranties
for the due execution of a will and to insure the authenticity thereof.26 As it
appertains only to the witnesses and not to the testator, it need be signed
only by them.27 Where it is left unsigned, it would result in the invalidation
of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and its witnesses.28
In its report, the Code Commission commented on the reasons of the law
for requiring the formalities to be followed in the execution of wills, in the
following manner:

The underlying and fundamental objectives permeating the provisions on

the law on wills in this Project consists in the liberalization of the manner of
their execution with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to the
formalities in the execution of wills. . . .29

2. An examination of the last will and testament of Mateo Caballero shows

that it is comprised of three sheets all of which have been numbered
correlatively, with the left margin of each page thereof bearing the
respective signatures of the testator and the three attesting witnesses. The
part of the will containing the testamentary dispositions is expressed in the
Cebuano-Visayan dialect and is signed at the foot thereof by the testator.
The attestation clause in question, on the other hand, is recited in the
English language and is likewise signed at the end thereof by the three
attesting witnesses hereto.30 Since it is the proverbial bone of contention,
we reproduce it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal

addresses appear on the Opposite of our respective names, we do hereby
certify that the Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will consisting of
THREE PAGES, including the Acknowledgment, each page numbered
correlatively in the letters on the upper part of each page, as his Last Will
and Testament and he has the same and every page thereof, on the
spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest
and subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is the act of
senses, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as
such, and to certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to write on
the same paper the names of the witnesses, for the sole purpose of
identification.31

In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing

the testator's execution of the will in order to see and take note mentally
that those things are done which the statute requires for the execution of a
will and that the signature of the testator exists as a fact. On the other
hand, subscription is the signing of the witnesses' names upon the same
paper for the purpose of identification of such paper as the will which was
executed by the testator. As it involves a mental act, there would be no
means, therefore, of ascertaining by a physical examination of the will
whether the witnesses had indeed signed in the presence of the testator
and of each other unless this is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in

contravention of the express requirements of the third paragraph of Article
805 of the Civil Code for attestation clauses, fails to specifically state the
fact that the attesting witnesses the testator sign the will and all its pages in
their presence and that they, the witnesses, likewise signed the will and
every page thereof in the presence of the testator and of each other. We
agree.

What is fairly apparent upon a careful reading of the attestation clause

herein assailed is the fact that while it recites that the testator indeed
signed the will and all its pages in the presence of the three attesting
witnesses and states as well the number of pages that were used, the
same does not expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the presence of the
testator and of each other.

The phrase "and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin," obviously
refers to the testator and not the instrumental witnesses as it is immediately
preceded by the words "as his Last Will and Testament." On the other
hand, although the words "in the presence of the testator and in the
presence of each and all of us" may, at first blush, appear to likewise
signify and refer to the witnesses, it must, however, be interpreted as
referring only to the testator signing in the presence of the witnesses since
said phrase immediately follows the words "he has signed the same and
every page thereof, on the spaces provided for his signature and on the left
hand margin." What is then clearly lacking, in the final logical analysis , is
the statement that the witnesses signed the will and every page thereof in
the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law
is a fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving
the form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the
pertinent provision thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid if
it is not proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the
end thereof and at the left margin of each page by the three attesting
witnesses, it certainly cannot be conclusively inferred therefrom that the
said witness affixed their respective signatures in the presence of the
testator and of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting witnesses did subscribe to
the will in the presence of the testator and of each other. The execution of a
will is supposed to be one act so that where the testator and the witnesses
sign on various days or occasions and in various combinations, the will
cannot be stamped with the imprimatur of effectivity.33

We believe that the further comment of former Justice J.B.L. Reyes34

regarding Article 809, wherein he urged caution in the application of the
substantial compliance rule therein, is correct and should be applied in the
case under consideration, as well as to future cases with similar questions:

. . . The rule must be limited to disregarding those defects that can be

supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was
notarized. All theses are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in the
probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and
imperfections must only be with respect to the form of the attestation or the
language employed therein. Such defects or imperfections would not
render a will invalid should it be proved that the will was really executed
and attested in compliance with Article 805. In this regard, however, the
manner of proving the due execution and attestation has been held to be
limited to merely an examination of the will itself without resorting to
evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause

totally omits the fact that the attesting witnesses signed each and every
page of the will in the presence of the testator and of each other.35 In such
a situation, the defect is not only in the form or language of the attestation
clause but the total absence of a specific element required by Article 805 to
be specifically stated in the attestation clause of a will. That is precisely the
defect complained of in the present case since there is no plausible way by
which we can read into the questioned attestation clause statement, or an
implication thereof, that the attesting witness did actually bear witness to
the signing by the testator of the will and all of its pages and that said
instrumental witnesses also signed the will and every page thereof in the
presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be

revoked or relied on by respondents since it presupposes that the defects
in the attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data
not expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the omitted textual
requirements were actually complied within the execution of the will. In
other words, defects must be remedied by intrinsic evidence supplied by
the will itself.
In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied by only extrinsic
evidence thereof, since an overall appreciation of the contents of the will
yields no basis whatsoever from with such facts may be plausibly deduced.
What private respondent insists on are the testimonies of his witnesses
alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to
extrinsic evidence to prove the same and would accordingly be doing by
the indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be
followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal requirements were
at that time embodied primarily in Section 618 of Act No. 190, the Code of
Civil Procedure. Said section was later amended by Act No. 2645, but the
provisions respecting said formalities found in Act. No. 190 and the
amendment thereto were practically reproduced and adopted in the Civil
Code.

One view advance the liberal or substantial compliance rule. This was first
laid down in the case of Abangan vs. Abangan,36 where it was held that
the object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way as to attain these
primordial ends. Nonetheless, it was also emphasized that one must not
lose sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will, hence when an interpretation
already given assures such ends, any other interpretation whatsoever that
adds nothing but demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be disregarded. The
subsequent cases of Avera vs. Garcia,37 Aldaba vs. Roque,38 Unson vs.
Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios, et al.,41
and Nayve vs. Mojal, et al.42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory
in nature and are to be strictly construed was followed in the subsequent
cases of In the Matter of the Estate of Saguinsin,43 In re Will of Andrada,44
Uy Coque vs. Sioca,45 In re Estate of Neumark, 46 and Sano vs.
Quintana.47

Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to
clarify the seemingly conflicting decisions in the aforementioned cases. In
said case of Gumban, the attestation clause had failed to state that the
witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator. The will in question was disallowed,
with these reasons therefor:

In support of their argument on the assignment of error above-mentioned,

appellants rely on a series of cases of this court beginning with (I)n the
Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In
re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca
[1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841),
and ending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee
counters with the citation of a series of cases beginning with Abangan vs.
Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque
([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil.,
922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152).
In its last analysis, our task is to contrast and, if possible, conciliate the last
two decisions cited by opposing counsel, namely, those of Sano vs.
Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation
clause which does not recite that the witnesses signed the will and each
and every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation clause must estate
the fact that the testator and the witnesses reciprocally saw the signing of
the will, for such an act cannot be proved by the mere exhibition of the will,
if it is not stated therein. It was also held that the fact that the testator and
the witnesses signed each and every page of the will can be proved also by
the mere examination of the signatures appearing on the document itself,
and the omission to state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do
they admit inconsistency in doctrine. Yet here, unless aided impossible to
reconcile the Mojal and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points

may be mentioned. In the first place, the Mojal, decision was concurred in
by only four members of the court, less than a majority, with two strong
dissenting opinions; the Quintana decision was concurred in by seven
members of the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in December, 1924,
while the Quintana decision was promulgated in December, 1925; the
Quintana decision was thus subsequent in point of time. And in the third
place, the Quintana decision is believed more nearly to conform to the
applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The

law of the case is here found in section 61 of the Code of Civil Procedure
as amended by Act No. 2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as amended that "No will . .
. shall be valid . . . unless . . .." It is further provided in the same section that
"The attestation shall state the number of sheets or pages used, upon
which the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name, under
his express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the
testator and of each other." Codal section 634 provides that "The will shall
be disallowed in either of the following case: 1. If not executed and attested
as in this Act provided." The law not alone carefully makes use of the
imperative, but cautiously goes further and makes use of the negative, to
enforce legislative intention. It is not within the province of the courts to
disregard the legislative purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana,
supra, and, to the extent necessary, modify the decision in the case of
Nayve vs. Mojal and Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of

the Court that once more appeared to revive the seeming diversity of views
that was earlier threshed out therein. The cases of Quinto vs. Morata,49
Rodriguez vs. Alcala,50 Enchevarria vs. Sarmiento,51 and Testate Estate
of Toray52 went the way of the ruling as restated in Gumban. But De Gala
vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De
Gorostiza,55 Sebastian vs. Panganiban,56 Rodriguez vs. Yap,57 Grey vs.
Fabia,58 Leynez vs. Leynez,59 Martir vs. Martir,60 Alcala vs. De Villa,61
Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered
away from the strict interpretation rule and established a trend toward an
application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and

of the undeniable inclination towards a liberal construction, recommended
the codification of the substantial compliance rule, as it believed this rule to
be in accord with the modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now Article 809 of the
Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is,
in accordance with the formalities prescribed by Section 618 of the Code of
Civil Procedure as amended by Act No. 2645. The Supreme Court of the
Philippines had previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section 618 of the
Code of Civil Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of the testator in disposing of his
property.

However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution
of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap,
G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097,
October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and
Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically

gone back to the original provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645 in the year 1916. To turn
this attitude into a legislative declaration and to attain the main objective of
the proposed Code in the liberalization of the manner of executing wills,
article 829 of the Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid if
it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 829."65

The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not
offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop; they
draw the dividing line with precision. They do not allow evidence aliunde to
fill a void in any part of the document or supply missing details that should
appear in the will itself. They only permit a probe into the will, an
exploration into its confines, to ascertain its meaning or to determine the
existence or absence of the requisite formalities of law. This clear, sharp
limitation eliminates uncertainty and ought to banish any fear of dire
results."

It may thus be stated that the rule, as it now stands, is that omissions which
can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde
would result in the invalidation of the attestation clause and ultimately, of
the will itself.67

WHEREFORE, the petition is hereby GRANTED and the impugned

decision of respondent court is hereby REVERSED and SET ASIDE. The
court a quo is accordingly directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the Probate of the Last Will and
Testament of Mateo Caballero) and to REVIVE Special Proceeding No.
3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with the settlement of the estate of
the said decedent.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE

JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO
ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de

Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon.
Jose C. Colayco, Presiding Judge Court of First Instance of Manila, Branch
XXI disallowing the probate of the holographic Will of the deceased Bibiana
Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de
Jesus, Special Proceeding No. 81503 entitled "In the Matter of the Intestate
Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by
petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de
Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed

administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to be the
holographic Will of the deceased Bibiana Roxas de Jesus. On May 26,
1973, respondent Judge Jose Colayco set the hearing of the probate of the
holographic Win on July 21, 1973.

Petitioner Simeon R. Roxas testified that after his appointment as

administrator, he found a notebook belonging to the deceased Bibiana R.
de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win
addressed to her children and entirely written and signed in the handwriting
of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61
" and states: "This is my win which I want to be respected although it is not
written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of

Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified
that the letter dated "FEB./61 " is the holographic Will of their deceased
mother, Bibiana R. de Jesus. Both recognized the handwriting of their
mother and positively Identified her signature. They further testified that
their deceased mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 " was the date when
said Will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to

probate" assailing the purported holographic Will of Bibiana R. de Jesus
because a it was not executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or did
not intend, nor could have intended the said Will to be her last Will and
testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order
allowing the probate of the holographic Will which he found to have been
duly executed in accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging

inter alia that the alleged holographic Will of the deceased Bibiana R. de
Jesus was not dated as required by Article 810 of the Civil Code. She
contends that the law requires that the Will should contain the day, month
and year of its execution and that this should be strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his

earlier order and disallowed the probate of the holographic Will on the
ground that the word "dated" has generally been held to include the month,
day, and year. The dispositive portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will of

Bibiana Roxas de Jesus, is hereby disallowed for not having been
executed as required by the law. The order of August 24, 1973 is hereby
set aside.

The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:

ART. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject
to no other form, and may be made in or out of the Philippines, and need
not be witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and
Article 688 of the Old Civil Code require the testator to state in his
holographic Win the "year, month, and day of its execution," the present
Civil Code omitted the phrase Año mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal
construction of the holographic Will should prevail.

Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month, and day of its
execution. The respondent contends that Article 810 of the Civil Code was
patterned after Section 1277 of the California Code and Section 1588 of the
Louisiana Code whose Supreme Courts had consistently ruled that the
required date includes the year, month, and day, and that if any of these is
wanting, the holographic Will is invalid. The respondent further contends
that the petitioner cannot plead liberal construction of Article 810 of the Civil
Code because statutes prescribing the formalities to be observed in the
execution of holographic Wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of
Wills. We should not overlook the liberal trend of the Civil Code in the
manner of execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy —

The underlying and fundamental objectives permeating the provisions of

the law on wigs in this Project consists in the liberalization of the manner of
their execution with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficien safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.

This objective is in accord with the modem tendency with respect to the
formalities in the execution of wills. (Report of the Code Commission, p.
103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v.

Bustos (27 SCRA 327) he emphasized that:

xxx xxx xxx

... The law has a tender regard for the will of the testator expressed in his
last will and testament on the ground that any disposition made by the
testator is better than that which the law can make. For this reason,
intestate succession is nothing more than a disposition based upon the
presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal

requirements in order to guard against fraud and bad faith but without
undue or unnecessary curtailment of testamentary privilege Icasiano v.
Icasiano, 11 SCRA 422). If a Will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad faith
and fraud in the exercise thereof is obviated, said Win should be admitted
to probate (Rey v. Cartagena 56 Phil. 282). Thus,

xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the wilt and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the
requisites, although compliance is not literal, it is sufficient if the objective
or purpose sought to be accomplished by such requisite is actually attained
by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we
ruled that:

The object of the solemnities surrounding the execution of wills is to close

the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such

contingencies as that of two competing Wills executed on the same day, or
of a testator becoming insane on the day on which a Will was executed
(Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence
of bad faith and fraud in its execution nor was there any substitution of
Wins and Testaments. There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written, dated, and signed
by the testatrix herself and in a language known to her. There is also no
question as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their mother
and that she had the testamentary capacity at the time of the execution of
said Will. The objection interposed by the oppositor-respondent Luz
Henson is that the holographic Will is fatally defective because the date
"FEB./61 " appearing on the holographic Will is not sufficient compliance
with Article 810 of the Civil Code. This objection is too technical to be
entertained.

As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, when as in the case at bar,
there is no appearance of fraud, bad faith, undue influence and pressure
and the authenticity of the Will is established and the only issue is whether
or not the date "FEB./61" appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate of the holographic
Will should be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from

is REVERSED and SET ASIDE and the order allowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la

Fuente, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. Nos. 83843-44 April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted
by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J.:

The sole issue in this case is whether or not the alleged holographic will of
one Melecio Labrador is dated, as provided for in Article 8102 of the New
Civil Code.

The antecedent and relevant facts are as follows: On June 10, 1972,
Melecio Labrador died in the Municipality of Iba, province of Zambales,
where he was residing, leaving behind a parcel of land designated as Lot
No. 1916 under Original Certificate of Title No. P-1652, and the following
heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina,
Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will.

On July 28, 1975, Sagrado Labrador (now deceased but substituted by his
heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a
petition for the probate docketed as Special Proceeding No. 922-I of the
alleged holographic will of the late Melecio Labrador.

Subsequently, on September 30, 1975, Jesus Labrador (now deceased but

substituted by his heirs), and Gaudencio Labrador filed an opposition to the
petition on the ground that the will has been extinguished or revoked by
implication of law, alleging therein that on September 30, 1971, that is,
before Melecio's death, for the consideration of Six Thousand (P6,000)
Pesos, testator Melecio executed a Deed of Absolute Sale, selling,
transferring and conveying in favor of oppositors Jesus and Gaudencio Lot
No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been
cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador
sold said parcel of land to Navat for only Five Thousand (P5,000) Pesos.
(Rollo, p. 37)

Sagrado thereupon filed, on November 28, 1975, against his brothers,

Gaudencio and Jesus, for the annulment of said purported Deed of
Absolute Sale over a parcel of land which Sagrado allegedly had already
acquired by devise from their father Melecio Labrador under a holographic
will executed on March 17, 1968, the complaint for annulment docketed as
Civil Case No. 934-I, being premised on the fact that the aforesaid Deed of
Absolute Sale is fictitious.

After both parties had rested and submitted their respective evidence, the
trial court rendered a joint decision dated February 28, 1985, allowing the
probate of the holographic will and declaring null and void the Deed of
Absolute sale. The court a quo had also directed the respondents (the
defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum
of P5,000.00 representing the redemption price for the property paid by the
plaintiff-petitioner Sagrado with legal interest thereon from December 20,
1976, when it was paid to vendee a retro.

Respondents appealed the joint decision to the Court of Appeals, which on

March 10, 1988 modified said joint decision of the court a quo by denying
the allowance of the probate of the will for being undated and reversing the
order of reimbursement. Petitioners' Motion for Reconsideration of the
aforesaid decision was denied by the Court of Appeals, in the resolution of
June 13, 1988. Hence, this petition.

Petitioners now assign the following errors committed by respondent court,

to wit:

THE COURT OF APPEALS ERRED IN NOT ALLOWING AND

APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF THE
TESTATOR MELECIO LABRADOR; and

II

THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF

THE LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE
THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE WAS
ERRONEOUS.

The alleged undated holographic will written in Ilocano translated into

English, is quoted as follows:

ENGLISH INTERPRETATION OF THE WILL OF THE

LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ

I — First Page

This is also where it appears in writing of the place which is assigned and
shared or the partition in favor of SAGRADO LABRADOR which is the
fishpond located and known place as Tagale.

And this place that is given as the share to him, there is a measurement of
more or less one hectare, and the boundary at the South is the property
and assignment share of ENRICA LABRADOR, also their sister, and the
boundary in the West is the sea, known as the SEA as it is, and the
boundary on the NORTH is assignment belonging to CRISTOBAL
LABRADOR, who likewise is also their brother. That because it is now the
time for me being now ninety three (93) years, then I feel it is the right time
for me to partition the fishponds which were and had been bought or
acquired by us, meaning with their two mothers, hence there shall be no
differences among themselves, those among brothers and sisters, for it is I
myself their father who am making the apportionment and delivering to
each and everyone of them the said portion and assignment so that there
shall not be any cause of troubles or differences among the brothers and
sisters.

II — Second Page

And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this
being in the month of March, 17th day, in the year 1968, and this decision
and or instruction of mine is the matter to be followed. And the one who
made this writing is no other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this that
should be followed and complied with in order that any differences or
troubles may be forestalled and nothing will happen along these troubles
among my children, and that they will be in good relations among
themselves, brothers and sisters;

And those improvements and fruits of the land; mangoes, bamboos and all
coconut trees and all others like the other kind of bamboo by name of
Bayog, it is their right to get if they so need, in order that there shall be
nothing that anyone of them shall complain against the other, and against
anyone of the brothers and sisters.

III — THIRD PAGE

And that referring to the other places of property, where the said property is
located, the same being the fruits of our earnings of the two mothers of my
children, there shall be equal portion of each share among themselves, and
or to be benefitted with all those property, which property we have been
able to acquire.

That in order that there shall be basis of the truth of this writing (WILL)
which I am here hereof manifesting of the truth and of the fruits of our labor
which their two mothers, I am signing my signature below hereof, and that
this is what should be complied with, by all the brothers and sisters, the
children of their two mothers — JULIANA QUINTERO PILARISA and
CASIANA AQUINO VILLANUEVA Your father who made this writing
(WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really
dated, although the date is not in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.1âwphi1 It is worthy of note to quote the first
paragraph of the second page of the holographic will, viz:

And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this
being in the month of March, 17th day, in the year 1968, and this decision
and or instruction of mine is the matter to be followed. And the one who
made this writing is no other than MELECIO LABRADOR, their father.
(emphasis supplied) (p. 46, Rollo)

The law does not specify a particular location where the date should be
placed in the will. The only requirements are that the date be in the will
itself and executed in the hand of the testator. These requirements are
present in the subject will.

Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneficiaries entered into an agreement among themselves
about "the partitioning and assigning the respective assignments of the
said fishpond," and was not the date of execution of the holographic will;
hence, the will is more of an "agreement" between the testator and the
beneficiaries thereof to the prejudice of other compulsory heirs like the
respondents. This was thus a failure to comply with Article 783 which
defines a will as "an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his
estate, to take effect after his death."

Respondents are in error. The intention to show 17 March 1968 as the date
of the execution of the will is plain from the tenor of the succeeding words
of the paragraph. As aptly put by petitioner, the will was not an agreement
but a unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be followed reveal
that Melecio Labrador was fully aware of the nature of the estate property
to be disposed of and of the character of the testamentary act as a means
to control the disposition of his estate.

Anent the second issue of finding the reimbursement of the P5,000

representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were actually
selling property belonging to another and which they had no authority to
sell, rendering such sale null and void. Petitioners, thus "redeemed" the
property from Navat for P5,000, to immediately regain possession of the
property for its disposition in accordance with the will. Petitioners therefore
deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated
March 10, 1988 is hereby REVERSED. The holographic will of Melecio
Labrador is APPROVED and ALLOWED probate. The private respondents
are directed to REIMBURSE the petitioners the sum of Five Thousand
Pesos (P5,000.00).

SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14003 August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.

F. Lavides and L.B. Alcuaz for appellant.

Vicente J. Cuna and P.S. Singson for appellee.

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

This appeal, taken on points of law from a decision rendered on 15 January

1958 by the Court of First Instance of Quezon City in its Special
Proceedings No. Q-2640, involves the determination of the quantity of
evidence required for the probate of a holographic will.

The established facts are thus summarized in the decision appealed from
(Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that
on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot,
Quezon City, known to be the last residence of said testatrix; that Francisco
Azaola, petitioner herein for probate of the holographic will, submitted the
said holographic will (Exh. C) whereby Maria Milagros Azaola was made
the sole heir as against the nephew of deceased Cesario Singson; that
witness Francisco Azaola testified that he saw the holographic will (Exh. C)
one month, more or less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also that he
recognized all the signatures appearing in the holographic will (Exh. C) as
the handwriting of the testatrix and to reinforce said statement, witness
presented the mortgage (Exh. E), the special power of the attorney (Exh.
F), and the general power of attorney (Exh. F-1), besides the deeds of sale
(Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were
further exhibited in court two residence certificates (Exhs. H and H-1) to
show the signatures of the testatrix, for comparison purposes; that said
witness, Azaola, testified that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well as the
signatures appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures appearing therein are
the signatures of the testatrix; that said witness, in answer to a question of
his counsel admitted that the holographic will was handed to him by the
testatrix. "apparently it must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of the stenographic notes,
when the same witness was asked by counsel if he was familiar with the
penmanship and handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was asked again
whether the penmanship referred to in the previous answer as appearing in
the holographic will (Exh. C) was hers (testatrix'), he answered, "I would
definitely say it is hers"; that it was also established in the proceedings that
the assessed value of the property of the deceased in Luskot, Quezon City,
is in the amount of P7,000.00.

The opposition to the probate was on the ground that (1) the execution of
the will was procured by undue and improper pressure and influence on the
part of the petitioner and his wife, and (2) that the testatrix did not seriously
intend the instrument to be her last will, and that the same was actually
written either on the 5th or 6th day of August 1957 and not on November
20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil
Code, the proponent must present three witnesses who could declare that
the will and the signature are in the writing of the testatrix, the probate
being contested; and because the lone witness presented by the proponent
"did not prove sufficiently that the body of the will was written in the
handwriting of the testatrix."

The proponent appealed, urging: first, that he was not bound to produce
more than one witness because the will's authenticity was not questioned;
and second, that Article 811 does not mandatorily require the production of
three witnesses to identify the handwriting and signature of a holographic
will, even if its authenticity should be denied by the adverse party.

Article 811 of the Civil Code of the Philippines is to the following effect:

ART. 811. In the probate of a holographic will, it shall be necessary that at

least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such witnesses shall be
required.

In the absence of any competent witnesses referred to in the preceding

paragraph, and if the court deems it necessary, expert testimony may be
resorted to. (691a).

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

in the absence of any competent witness referred to in the preceding

paragraph, and if the court deems it necessary, expert testimony may be
resorted to.

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

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

Again, under Article 811, the resort to expert evidence is conditioned by the
words "if the Court deem it necessary", which reveal that what the law
deems essential is that the Court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and
the court is convinced by their testimony that the ill is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if no
competent witness is available, or none of those produced is convincing,
the Court may still, and in fact it should, resort to handwriting experts. The
duty of the Court, in fine, is to exhaust all available lines of inquiry, for the
state is as much interested as the proponent that the true intention of the
testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil
Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed.,
p.421), sagely remarks:

La manera como esta concebida la redaccion del ultimo apartado de dicho

precepto induce la conclusion de que siempre o por lo menos, en la mayor
parte de los casos, el Juez debe acudir al criterio pericial para que le ilustre
acerca de la autenticidad del testamento olografo, aunque ya esten
insertas en los autos del expediente las declaraciones testificales. La
prudencia con que el Juez debe de proceder en resoluciones de
transcendencia asi lo exige, y la indole delicada y peligrosa del testamento
olografo lo hace necesario para mayor garantia de todos los interes
comprometidos en aquel.

En efecto, el cotejo pericial de letras puede ser una confirmacion

facultativa del dicho profano de los testigos y un modo de desvanecer las
ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que
trata de averigaur y declarar. Para eso se ha escrito la frase del citado
ultimo apartado, (siempre que el Juez lo estime conveniente), haya habido
o no testigos y dudaran o no estos respecto de los extremos por que son
preguntados.

El arbitrio judicial en este caso debe formarse con independencia de los

sucesos y de su significacion, para responder debidamente de las
resoluciones que haya de dictar.

And because the law leaves it to the trial court if experts are still needed,
no unfavourable inference can be drawn from a party's failure to offer
expert evidence, until and unless the court expresses dissatisfaction with
the testimony of the lay witnesses.

Our conclusion is that the rule of the first paragraph of Article 811 of the
Civil Code is merely directory and is not mandatory.

Considering, however, that this is the first occasion in which this Court has
been called upon to construe the import of said article, the interest of
justice would be better served, in our opinion, by giving the parties ample
opportunity to adduce additional evidence, including expert witnesses,
should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the
records ordered remanded to the Court of origin, with instructions to hold a
new trial in conformity with this opinion. But evidence already on record
shall not be retaken. No costs.

Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and

Gutierrez David, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 123486 August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,

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

PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of

Appeals1 and its resolution denying reconsideration, ruling:

Upon the unrebutted testimony of appellant Evangeline Calugay and

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

Wherefore, the order appealed from is REVERSED and judgment rendered

allowing the probate of the holographic will of the testator Matilde Seño
Vda. de Ramonal.2

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia

Patigas, devisees and legatees of the holographic will of the deceased
Matilde Seño Vda. de Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition3 for probate of the holographic will of the
deceased, who died on January 16, 1990.

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

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

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

Petitioners argued that the repeated dates incorporated or appearing on

will after every disposition is out of the ordinary. If the deceased was the
one who executed the will, and was not forced, the dates and the signature
should appear at the bottom after the dispositions, as regularly done and
not after every disposition. And assuming that the holographic will is in the
handwriting of the deceased, it was procured by undue and improper
pressure and influence on the part of the beneficiaries, or through fraud
and trickery.1âwphi1.nêt

Respondents presented six (6) witnesses and various documentary

evidence. Petitioners instead of presenting their evidence, filed a
demurrer6 to evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the holographic will of
the deceased Matilde Seño Vda. de Ramonal.

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

WHEREFORE, in view of the foregoing consideration, the Demurrer to

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

On December 12, 1990, respondents filed a notice of appeal,8 and in

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

To have a clear understanding of the testimonies of the witnesses, we

recite an account of their testimonies.

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental,

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

Generosa Senon, election registrar of Cagayan de Oro, was presented to

produced and identify the voter's affidavit of the decedent. However, the
voters' affidavit was not produced for the same was already destroyed and
no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda.
de Ramonal was her aunt, and that after the death of Matilde's husband,
the latter lived with her in her parent's house for eleven (11) years from
1958 to 1969. During those eleven (11) years of close association the
deceased, she acquired familiarity with her signature and handwriting as
she used to accompany her (deceased Matilde Seño Vda. de Ramonal) in
collecting rentals from her various tenants of commercial buildings, and
deceased always issued receipts. In addition to this, she (witness Matilde
Binanay) assisted the deceased in posting the records of the accounts, and
carried personal letters of the deceased to her creditors.

Matilde Ramonal Binanay further testified that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30,
1978, which was personally and entirely written, dated and signed, by the
deceased and that all the dispositions therein, the dates, and the
signatures in said will, were that of the deceased.

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

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

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

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

as follows:
Instruction

August 30, 1978

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

(Sgd) Matilde Vda de Ramonal

August 30, 1978

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

(Sgd) Matilde Vda de Ramonal

August 30, 1978

3. My jewelry's shall be divided among:

1. Eufemia Patigas

2. Josefina Salcedo

3. Evangeline Calugay

(Sgd) Matilde Vda de Ramonal

August 30, 1978

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

R. Calugay

(Sgd) Matilde Vda de Ramonal

August 30, 1978

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

August 30, 1978

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

(Sgd) Matilde Vda de Ramonal

August 30, 1978

Gene and Manuel:

Follow my instruction in order that I will rest peacefully.

Mama

Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision9 ruling that

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

. . . even if the genuineness of the holographic will were contested, we are

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

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

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

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

Paraphrasing Azaola vs. Singson, even if the genuineness of the

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

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal

Binanay and other witnesses definitely and in no uncertain terms testified
that the handwriting and signature in the holographic will were those of the
testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and

witness Matilde Ramonal Binanay, the Court of Appeals sustained the
authenticity of the holographic will and the handwriting and signature
therein, and allowed the will to probate.

Hence, this petition.

The petitioners raise the following issues:

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

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

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

In this petition, the petitioners ask whether the provisions of Article 811 of
the Civil Code are permissive or mandatory. The article provides, as a
requirement for the probate of a contested holographic will, that at least
three witnesses explicitly declare that the signature in the will is the
genuine signature of the testator.1âwphi1.nêt
We are convinced, based on the language used, that Article 811 of the Civil
Code is mandatory. The word "shall" connotes a mandatory order. We
have ruled that "shall" in a statute commonly denotes an imperative
obligation and is inconsistent with the idea of discretion and that the
presumption is that the word "shall," when used in a statute is
mandatory.11

Laws are enacted to achieve a goal intended and to guide against an evil
or mischief that aims to prevent. In the case at bar, the goal to achieve is to
give effect to the wishes of the deceased and the evil to be prevented is the
possibility that unscrupulous individuals who for their benefit will employ
means to defeat the wishes of the testator.

So, we believe that the paramount consideration in the present petition is to

determine the true intent of the deceased. An exhaustive and objective
consideration of the evidence is imperative to establish the true intent of the
testator.

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

Generosa E. Senon, the election registrar of Cagayan de Oro City, was

presented to identify the signature of the deceased in the voter's affidavit,
which was not even produced as it was no longer available.

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

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

A. Collecting rentals.

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

xxx xxx xxx

Q. Who sometime accompany her?

A. I sometimes accompany her.

Q. In collecting rentals does she issue receipts?

A. Yes, sir.13

xxx xxx xxx

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

A. Yes, sir.

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

signature is that Mrs. Binanay?

A. Matilde vda. De Ramonal.

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

A. I am familiar with her signature.

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

A. Yes, sir.

Q. Why do you say so?

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

Vda. De Ramonal.

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

A. In handwritten.14

xxx xxx xxx

Q. In addition to collection of rentals, posting records of accounts of

tenants and deed of sale which you said what else did you do to acquire
familiarity of the signature of Matilde Vda De Ramonal?

A. Posting records.

Q. Aside from that?

A. Carrying letters.

Q. Letters of whom?

A. Matilde.

Q. To whom?

A. To her creditors.15

xxx xxx xxx

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

A. Yes, sir.

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

whose handwriting is this?

A. My Aunt.

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

A. Because I am familiar with her signature.16

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

Further, during the cross-examination, the counsel for petitioners elicited

the fact that the will was not found in the personal belongings of the
deceased but was in the possession of Ms. Binanay. She testified that:

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

A. Yes, sir.

Q. Who was in possession of that will?

A. I.

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

A. It was in my mother's possession.

Q. So, it was not in your possession?

A. Sorry, yes.

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

A. 1985.17

xxx xxx xxx

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

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

she died.

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

A. I presented it to the fiscal.

Q. For what purpose?

A. Just to seek advice.

Q. Advice of what?

A. About the will.18

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

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

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

A. Yes, sir.

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

A. Yes, sir.19

xxx xxx xxx

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know

that there are retracings in the word Vda.?

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

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

A. Yes, sir.

Q. Again the third signature of Matilde Vda de Ramonal the letter L in

Matilde is continued towards letter D.
A. Yes, sir.

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

A. Yes, sir.20

xxx xxx xxx

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

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

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

A. In writing.

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

A. That was I think. (sic).

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

A. Yes, sir.

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

A. Yes, sir.21

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

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

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

Q. What else? What services that you rendered?

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

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

A. I used to be her personal driver.

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

A. Yes, sir.

Q. How come that you acquired familiarity?

A. Because I lived with her since birth.22

xxx xxx xxx

Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated

Agosto 30, 1978 there is a signature here below item No. 1, will you tell this
court whose signature is this?

A. Yes, sir, that is her signature.

Q. Why do you say that is her signature?

A. I am familiar with her signature.23

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

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

Q. Do you know Matilde Vda de Ramonal?

A. Yes, sir I know her because she is my godmother the husband is my

godfather. Actually I am related to the husband by consanguinity.

Q. Can you tell the name of the husband?

A. The late husband is Justo Ramonal.24

xxx xxx xxx

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

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

xxx xxx xxx

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

Where?

A. Here in Cagayan de Oro City.

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

Ramonal?

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

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

A. It is about the project partition to terminate the property, which was

under the court before.26

xxx xxx xxx

Q. Appearing in special proceeding no. 427 is the amended inventory

which is marked as exhibit N of the estate of Justo Ramonal and there
appears a signature over the type written word Matilde vda de Ramonal,
whose signature is this?

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

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

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

xxx xxx xxx

Q. Aside from attending as counsel in that Special Proceeding Case No.

427 what were the other assistance wherein you were rendering
professional service to the deceased Matilde Vda de Ramonal?

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

xxx xxx xxx

Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go

over this document, Fiscal Waga and tell the court whether you are familiar
with the handwriting contained in that document marked as exhibit "S"?

A. I am not familiar with the handwriting.

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

A. I think this signature here it seems to be the signature of Mrs. Matilde

vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de
Ramonal, can you tell the court whose signature is this?

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

partition.

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

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

de Ramonal.

Q. Why do you say that?

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

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

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

xxx xxx xxx

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

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

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

A. That is true.30

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

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

However, we cannot eliminate the possibility of a false document being

adjudged as the will of the testator, which is why if the holographic will is
contested, that law requires three witnesses to declare that the will was in
the handwriting of the deceased.

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

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

A visual examination of the holographic will convince us that the strokes

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

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

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The

records are ordered remanded to the court of origin with instructions to
allow petitioners to adduce evidence in support of their opposition to the
probate of the holographic will of the deceased Matilde Seño vda. de
Ramonal.1âwphi1.nêt

No costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

Case Digest:

Codoy v. Calugay
312 SCRA 333

FACTS:

On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia

Patigas, devisees and legatees of the holographic will of the deceased
Matilde Seño Vda. de Ramonal, filed a petition for probate of the said will.
They attested to the genuineness and due execution of the will on 30
August 1978.

Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition

claiming that the will was a forgery and that the same is even illegible. They
raised doubts as regards the repeated appearing on the will after every
disposition, calling the same out of the ordinary. If the will was in the
handwriting of the deceased, it was improperly procured.

Evangeline Calugay, etc. presented 6 witnesses and various documentary

evidence.
The first witness was the clerk of court of the probate court who produced
and identified the records of the case bearing the signature of the
deceased.
The second witness was election registrar who was made to produce and
identify the voter’s affidavit, but failed to as the same was already
destroyed and no longer available.

The third, the deceased’s niece, claimed that she had acquired familiarity
with the deceased’s signature and handwriting as she used to accompany
her in collecting rentals from her various tenants of commercial buildings
and the deceased always issued receipts. The niece also testified that the
deceased left a holographic will entirely written, dated and signed by said
deceased.

The fourth witness was a former lawyer for the deceased in the intestate
proceedings of her late husband, who said that the signature on the will
was similar to that of the deceased but that he can not be sure.

The fifth was an employee of the DENR who testified that she was familiar
with the signature of the deceased which appeared in the latter’s
application for pasture permit. The fifth, respondent Evangeline Calugay,
claimed that she had lived with the deceased since birth where she had
become familiar with her signature and that the one appearing on the will
was genuine.

Codoy and Ramonal’s demurrer to evidence was granted by the lower

court. It was reversed on appeal with the Court of Appeals which granted
the probate.

ISSUE:

1. W/N Article 811 of the Civil Code, providing that at least three witnesses
explicitly declare the signature in a contested will as the genuine signature
of the testator, is mandatory or directory.

2. Whether or not the witnesses sufficiently establish the authenticity and

due execution of the deceased’s holographic will.

HELD:
1. YES. The word “shall” connotes a mandatory order, an imperative
obligation and is inconsistent with the idea of discretion and that the
presumption is that the word “shall”, when used in a statute, is mandatory.

In the case at bar, the goal to be achieved by the law, is to give effect to the
wishes of the deceased and the evil to be prevented is the possibility that
unscrupulous individuals who for their benefit will employ means to defeat
the wishes of the testator.

The paramount consideration in the present petition is to determine the true

intent of the deceased.

2. NO. We cannot be certain that the holographic will was in the

handwriting of the deceased.

The clerk of court was not presented to declare explicitly that the signature
appearing in the holographic will was that of the deceased.

The election registrar was not able to produce the voter’s affidavit for
verification as it was no longer available.

The deceased’s niece saw pre-prepared receipts and letters of the

deceased and did not declare that she saw the deceased sign a document
or write a note.

The will was not found in the personal belongings of the deceased but was
in the possession of the said niece, who kept the fact about the will from
the children of the deceased, putting in issue her motive.

Evangeline Calugay never declared that she saw the decreased write a
note or sign a document.

The former lawyer of the deceased expressed doubts as to the authenticity

of the signature in the holographic will.

(As it appears in the foregoing, the three-witness requirement was not

complied with.)

A visual examination of the holographic will convinces that the strokes are
different when compared with other documents written by the testator.
The records are remanded to allow the oppositors to adduce evidence in
support of their opposition.

The object of solemnities surrounding the execution of wills is to close the

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

However, we cannot eliminate the possibility of a false document being

adjudged as the will of the testator, which is why if the holographic will is
contested, the law requires three witnesses to declare that the will was in
the handwriting of the deceased.

Article 811, paragraph 1. provides: “In the probate of a holographic will, it

shall be necessary that at least one witness who knows the handwriting
and signature of the testator explicitly declare that the will and the signature
are in the handwriting of the testator. If the will is contested, at least three
of such witnesses shall be required.”

The word “shall” connotes a mandatory order, an imperative obligation and

is inconsistent with the idea of discretion and that the presumption is that
the word “shall”, when used in a statute, is mandatory.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12190 August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased.
FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for

appellant.
Arturo M. Tolentino for appellee.

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in
the University of Santo Tomas Hospital, leaving properties in Pulilan,
Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated them proceedings in the

Manila court of first instance with a petition for the probate of a holographic
will allegedly executed by the deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay

nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay
aking ipinamamana sa aking mga kamag-anakang sumusunod:

Vicente Esguerra, Sr. .............................................

5 Bahagi

Fausto E. Gan .........................................................

2 Bahagi

Rosario E. Gan .........................................................

2 Bahagi

Filomena Alto ..........................................................

1 Bahagi

Beatriz Alto ..............................................................

1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay

aking ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong
siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di
kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na
nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may
kakulangan man ay bahala na ang aking asawa ang magpuno upang
matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that
the deceased had not left any will, nor executed any testament during her
lifetime.

After hearing the parties and considering their evidence, the Hon. Ramon
R. San Jose, Judge,1 refused to probate the alleged will. A seventy-page
motion for reconsideration failed. Hence this appeal.

The will itself was not presented. Petitioner tried to establish its contents
and due execution by the statements in open court of Felina Esguerra,
Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose
testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned
to her first cousin, Vicente Esguerra, her desire to make a will. She
confided however that it would be useless if her husband discovered or
knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad,
who was then preparing for the bar examinations. The latter replied it could
be done without any witness, provided the document was entirely in her
handwriting, signed and dated by her. Vicente Esguerra lost no time in
transmitting the information, and on the strength of it, in the morning of
November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad
wrote, signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of
Vicente), who was invited to read it. In the afternoon of that day, Felicidad
was visited by a distant relative, Primitivo Reyes, and she allowed him to
read the will in the presence of Felina Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario
Gan Jimenez, a niece. To these she showed the will, again in the presence
of Felina Esguerra, who read it for the third time.

When on November 19, 1951, Felicidad was confined at the U.S.T.

Hospital for her last illness, she entrusted the said will, which was
contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso
Yap, her husband, asked Felina for the purse: and being afraid of him by
reason of his well-known violent temper, she delivered it to him. Thereafter,
in the same day, Ildefonso Yap returned the purse to Felina, only to
demand it the next day shortly before the death of Felicidad. Again, Felina
handed it to him but not before she had taken the purse to the toilet,
opened it and read the will for the last time.2

From the oppositor's proof it appears that Felicidad Esguerra had been
suffering from heart disease for several years before her death; that she
had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin
Liboro and others; that in May 1950 husband and wife journeyed to the
United States wherein for several weeks she was treated for the disease;
that thereafter she felt well and after visiting interesting places, the couple
returned to this country in August 1950. However, her ailment recurred, she
suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole
household was surprised and alarmed, even the teachers of the Harvardian
Colleges occupying the lower floors and of by the Yap spouses. Physician's
help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m.,
found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctor's
advice the patient stayed in bed, and did nothing the whole day, her
husband and her personal attendant, Mrs. Bantique, constantly at her side.
These two persons swore that Mrs. Felicidad Esguerra Yap made no will,
and could have made no will on that day.

The trial judge refused to credit the petitioner's evidence for several
reasons, the most important of which were these: (a) if according to his
evidence, the decedent wanted to keep her will a secret, so that her
husband would not know it, it is strange she executed it in the presence of
Felina Esguerra, knowing as she did that witnesses were unnecessary; (b)
in the absence of a showing that Felina was a confidant of the decedent it
is hard to believe that the latter would have allowed the former to see and
read the will several times; (c) it is improbable that the decedent would
have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte
to read her will, when she precisely wanted its contents to remain a secret
during her lifetime; (d) it is also improbable that her purpose being to
conceal the will from her husband she would carry it around, even to the
hospital, in her purse which could for one reason or another be opened by
her husband; (e) if it is true that the husband demanded the purse from
Felina in the U.S.T. Hospital and that the will was there, it is hard to believe
that he returned it without destroying the will, the theory of the petitioner
being precisely that the will was executed behind his back for fear he will
destroy it.

In the face of these improbabilities, the trial judge had to accept the
oppositor's evidence that Felicidad did not and could not have executed
such holographic will.

In this appeal, the major portion of appellant's brief discussed the testimony
of the oppositor and of his witnesses in a vigorous effort to discredit them. It
appears that the same arguments, or most of them, were presented in the
motion to reconsider; but they failed to induce the court a quo to change its
mind. The oppositor's brief, on the other hand, aptly answers the criticisms.
We deem it unnecessary to go over the same matters, because in our
opinion the case should be decided not on the weakness of the opposition
but on the strength of the evidence of the petitioner, who has the burden of
proof.

The Spanish Civil Code permitted the execution of holographic wills along
with other forms. The Code of Civil Procedure (Act 190) approved August
7, 1901, adopted only one form, thereby repealing the other forms,
including holographic wills.

The New Civil Code effective in 1950 revived holographic wills in its arts.
810-814. "A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject
to no other form and may be made in or out of the Philippines, and need
not be witnessed."

This is indeed a radical departure from the form and solemnities provided
for wills under Act 190, which for fifty years (from 1901 to 1950) required
wills to be subscribed by the testator and three credible witnesses in each
and every page; such witnesses to attest to the number of sheets used and
to the fact that the testator signed in their presence and that they signed in
the presence of the testator and of each other.

The object of such requirements it has been said, is to close the door
against bad faith and fraud, to prevent substitution of wills, to guarantee
their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to
avoid those who have no right to succeed the testator would succeed him
and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off.
Gaz., 1855). However, formal imperfections may be brushed aside when
authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off.
Gaz. 1st Supp. No. 3 p. 194.)

Authenticity and due execution is the dominant requirements to be fulfilled

when such will is submitted to the courts for allowance. For that purpose
the testimony of one of the subscribing witnesses would be sufficient if
there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if
available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57
Phil., 742). From the testimony of such witnesses (and of other additional
witnesses) the court may form its opinion as to the genuineness and
authenticity of the testament, and the circumstances its due execution.

Now, in the matter of holographic wills, no such guaranties of truth and

veracity are demanded, since as stated, they need no witnesses; provided
however, that they are "entirely written, dated, and signed by the hand of
the testator himself." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its own safeguard,
since it could at any time, be demonstrated to be — or not to be — in the
hands of the testator himself. "In the probate of a holographic will" says the
New Civil Code, "it shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly declare that the will
and the signature are in the handwriting of the testator. If the will is
contested, at least three such witnesses shall be required. In the absence
of any such witnesses, (familiar with decedent's handwriting) and if the
court deem it necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the
holographic will. They may be mistaken in their opinion of the handwriting,
or they may deliberately lie in affirming it is in the testator's hand. However,
the oppositor may present other witnesses who also know the testator's
handwriting, or some expert witnesses, who after comparing the will with
other writings or letters of the deceased, have come to the conclusion that
such will has not been written by the hand of the deceased. (Sec. 50, Rule
123). And the court, in view of such contradictory testimony may use its
own visual sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.

Obviously, when the will itself is not submitted, these means of opposition,
and of assessing the evidence are not available. And then the only
guaranty of authenticity3 — the testator's handwriting — has disappeared.

Therefore, the question presents itself, may a holographic will be probated

upon the testimony of witnesses who have allegedly seen it and who
declare that it was in the handwriting of the testator? How can the oppositor
prove that such document was not in the testator's handwriting? His
witnesses who know testator's handwriting have not examined it. His
experts can not testify, because there is no way to compare the alleged
testament with other documents admittedly, or proven to be, in the
testator's hand. The oppositor will, therefore, be caught between the upper
millstone of his lack of knowledge of the will or the form thereof, and the
nether millstone of his inability to prove its falsity. Again the proponent's
witnesses may be honest and truthful; but they may have been shown a
faked document, and having no interest to check the authenticity thereof
have taken no pains to examine and compare. Or they may be perjurers
boldly testifying, in the knowledge that none could convict them of perjury,
because no one could prove that they have not "been shown" a document
which they believed was in the handwriting of the deceased. Of course, the
competency of such perjured witnesses to testify as to the handwriting
could be tested by exhibiting to them other writings sufficiently similar to
those written by the deceased; but what witness or lawyer would not
foresee such a move and prepare for it? His knowledge of the handwriting
established, the witness (or witnesses) could simply stick to his statement:
he has seen and read a document which he believed was in the
deceased's handwriting. And the court and the oppositor would practically
be at the mercy of such witness (or witnesses) not only as to the execution,
but also as to the contents of the will. Does the law permit such a situation?

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate)
of a lost or destroyed will by secondary — evidence the testimony of
witnesses, in lieu of the original document. Yet such Rules could not have
contemplated holographic wills which could not then be validly made here.
(See also Sec. 46, Rule 123; Art. 830-New Civil Code.)

Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the

holographic will is that it may be lost or stolen4 — an implied admission
that such loss or theft renders it useless..

This must be so, because the Civil Code requires it to be protocoled and
presented to the judge, (Art. 689) who shall subscribe it and require its
identity to be established by the three witnesses who depose that they
have no reasonable doubt that the will was written by the testator (Art.
691). And if the judge considers that the identity of the will has been proven
he shall order that it be filed (Art. 693). All these, imply presentation of the
will itself. Art. 692 bears the same implication, to a greater degree. It
requires that the surviving spouse and the legitimate ascendants and
descendants be summoned so that they may make "any statement they
may desire to submit with respect to the authenticity of the will." As it is
universally admitted that the holographic will is usually done by the testator
and by himself alone, to prevent others from knowing either its execution or
its contents, the above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the will, but whether
in the face of the document itself they think the testator wrote it. Obviously,
this they can't do unless the will itself is presented to the Court and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice
of either complying with the will if they think it authentic, or to oppose it, if
they think it spurious.5 Such purpose is frustrated when the document is
not presented for their examination. If it be argued that such choice is not
essential, because anyway the relatives may oppose, the answer is that
their opposition will be at a distinct disadvantage, and they have the right
and privilege to comply with the will, if genuine, a right which they should
not be denied by withholding inspection thereof from them.

We find confirmation of these ideas--about exhibition of the document itself-

-in the decision of the Supreme Court of Spain of June 5, 1925, which
denied protocolization or probate to a document containing testamentary
dispositions in the handwriting of the deceased, but apparently mutilated,
the signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing
the mutilation to the opponents of the will. The aforesaid tribunal declared
that, in accordance with the provision of the Civil Code (Spanish) the will
itself, whole and unmutilated, must be presented; otherwise, it shall
produce no effect.

Considerando que sentado lo anterior, y estableciendose en el parrafo

segundo del articulo 688 del Codigo civil, que para que sea valido el
testamento olografo debera estar escrito todo el y firmado por testador, con
expression del año, mes y dia en que se otorque, resulta evidente que para
la validez y eficacia de esos testamentos, no basta la demostracion mas o
menos cumplida de que cuando se otorgaron se Ilenaron todos esos
requisitos, sino que de la expresada redaccion el precepto legal, y por el
tiempo en que el verbo se emplea, se desprende la necesidad de que el
documento se encuentre en dichas condiciones en el momento de ser
presentado a la Autoridad competente, para au adveracion y
protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar
que el de autos carece de validez y aficacia, por no estarfirmado por el
testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de
las acciones que puedan ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un
defecto insubsanable . . . .

This holding aligns with the ideas on holographic wills in the Fuero Juzgo,
admittedly the basis of the Spanish Civil Code provisions on the matter.6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E

depues que los herederos e sus fijos ovieren esta manda, fasta ... annos
muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el
juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel
que fizo la manda; e por aquellos escriptos, si semjara la letra de la
manda, sea confirmada la manda. E depues que todo esto fuere
connoscido, el obispo o el juez, o otras testimonios confirmen el escripto
de la manda otra vez, y en esta manera vala la manda. (Art. 689,
Scaevola--Codigo Civil.)

(According to the Fuero above, the will itself must be compared with
specimens of the testators handwriting.)

All of which can only mean: the courts will not distribute the property of the
deceased in accordance with his holographic will, unless they are shown
his handwriting and signature.7

Parenthetically, it may be added that even the French Civil Law considers
the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil
Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).

Taking all the above circumstances together, we reach the conclusion that
the execution and the contents of a lost or destroyed holographic will may
not be proved by the bare testimony of witnesses who have seen and/or
read such will.8

Under the provisions of Art. 838 of the New Civil Code, we are empowered
to adopt this opinion as a Rule of Court for the allowance of such
holographic wills. We hesitate, however, to make this Rule decisive of this
controversy, simultaneously with its promulgation. Anyway, decision of the
appeal may rest on the sufficiency, rather the insufficiency, of the evidence
presented by petitioner Fausto E. Gan.

At this point, before proceeding further, it might be convenient to explain

why, unlike holographic wills, ordinary wills may be proved by testimonial
evidence when lost or destroyed. The difference lies in the nature of the
wills. In the first, the only guarantee of authenticity is the handwriting itself;
in the second, the testimony of the subscribing or instrumental witnesses
(and of the notary, now). The loss of the holographic will entails the loss of
the only medium of proof; if the ordinary will is lost, the subscribing
witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses

(four with the notary) deliberately to lie. And then their lies could be
checked and exposed, their whereabouts and acts on the particular day,
the likelihood that they would be called by the testator, their intimacy with
the testator, etc. And if they were intimates or trusted friends of the testator
they are not likely to end themselves to any fraudulent scheme to distort his
wishes. Last but not least, they can not receive anything on account of the
will.

Whereas in the case of holographic wills, if oral testimony were admissible9

only one man could engineer the fraud this way: after making a clever or
passable imitation of the handwriting and signature of the deceased, he
may contrive to let three honest and credible witnesses see and read the
forgery; and the latter, having no interest, could easily fall for it, and in court
they would in all good faith affirm its genuineness and authenticity. The will
having been lost — the forger may have purposely destroyed it in an
"accident" — the oppositors have no way to expose the trick and the error,
because the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of them
need be signed, the substitution of the unsigned pages, which may be the
most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more

objectionable feature — feasibility of forgery — would be added to the
several objections to this kind of wills listed by Castan, Sanchez Roman
and Valverde and other well-known Spanish Commentators and teachers
of Civil Law.10

One more fundamental difference: in the case of a lost will, the three
subscribing witnesses would be testifying to a fact which they saw, namely
the act of the testator of subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their opinion of the
handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting
itself is not at hand.

Turning now to the evidence presented by the petitioner, we find ourselves

sharing the trial judge's disbelief. In addition to the dubious circumstances
described in the appealed decision, we find it hard to believe that the
deceased should show her will precisely to relatives who had received
nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her
into amending her will to give them a share, or threaten to reveal its
execution to her husband Ildefonso Yap. And this leads to another point: if
she wanted so much to conceal the will from her husband, why did she not
entrust it to her beneficiaries? Opportunity to do so was not lacking: for
instance, her husband's trip to Davao, a few days after the alleged
execution of the will.

In fine, even if oral testimony were admissible to establish and probate a

lost holographic will, we think the evidence submitted by herein petitioner is
so tainted with improbabilities and inconsistencies that it fails to measure
up to that "clear and distinct" proof required by Rule 77, sec. 6.11

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo,

Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

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

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-
appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

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

As found by the Court of Appeals:

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

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

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

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

(4 ) The deceased did not leave any will, holographic or otherwise,

executed and attested as required by law.

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

On November 13, 1978, following the consolidation of the cases, the

appellees moved again to dismiss the petition for the probate of the will.
They argued that:
(1) The alleged holographic was not a last will but merely an instruction
as to the management and improvement of the schools and colleges
founded by decedent Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary

evidence unlike ordinary wills.

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

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

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

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

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

Appellant's motion for reconsideration was denied. Hence, an appeal to the

Court of Appeals in which it is contended that the dismissal of appellant's
petition is contrary to law and well-settled jurisprudence.

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

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT

HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC
WILL;

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

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

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

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez,

Jr., JJ., concur.