Republic of the Philippines Private respondent opposed the petition on the grounds that: neither the testament's body

at: neither the testament's body nor

SUPREME COURT the signature therein was in decedent's handwriting; it contained alterations and corrections
Manila which were not duly signed by decedent; and, the will was procured by petitioners through
improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero.
SECOND DIVISION He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del
Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she
was not its sole owner.

G.R. No. 106720 September 15, 1994 Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to
probate. It found, inter alia:
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs. Considering then that the probate proceedings herein must decide only the
THE COURT OF APPEALS AND CLEMENTE SAND, respondents. question of identity of the will, its due execution and the testamentary capacity of
the testatrix, this probate court finds no reason at all for the disallowance of the
will for its failure to comply with the formalities prescribed by law nor for lack of
Miguel D. Larida for petitioners.
testamentary capacity of the testatrix.
Montilla Law Office for private respondent.
For one, no evidence was presented to show that the will in question is different
from the will actually executed by the testatrix. The only objections raised by the
oppositors . . . are that the will was not written in the handwriting of the testatrix
which properly refers to the question of its due execution, and not to the question
PUNO, J.:
of identity of will. No other will was alleged to have been executed by the testatrix
other than the will herein presented. Hence, in the light of the evidence adduced,
This is an appeal by certiorari from the Decision of the Court of the identity of the will presented for probate must be accepted, i.e., the will
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which submitted in Court must be deemed to be the will actually executed by the
reads; testatrix.

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of
the trial court is hereby REVERSED and SET ASIDE, and the petition for probate
is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc.
No. Q-37171, and the instrument submitted for probate is the holographic will of the late
Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero,
private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe
Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's
holographic will. They alleged that at the time of its execution, she was of sound and disposing
mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to
dispose of her estate by will.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the handwriting of
the testatrix has been disputed, the petitioners, however, have satisfactorily
shown in Court that the holographic will in question was indeed written entirely,
dated and signed in the handwriting of the testatrix. Three (3) witnesses who
have convincingly shown knowledge of the handwriting of the testatrix have been
presented and have explicitly and categorically identified the handwriting with
which the holographic will in question was written to be the genuine handwriting
and signature of the testatrix. Given then the aforesaid evidence, the requirement
of the law that the holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx xxx xxx
 As to the question of the testamentary capacity of the testratix, (private
respondent) Clemente Sand himself has testified in Court that the testatrix was
completely in her sound mind when he visited her during her birthday celebration
in 1981, at or around which time the holographic will in question was executed by
the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of
making the will, knew the value of the estate to be disposed of, the
proper object of her bounty, and the characterof the testamentary act . . . The will
itself shows that the testatrix even had detailed knowledge of the nature of her
estate. She even identified the lot number and square meters of the lots she had
conveyed by will. The objects of her bounty were likewise identified explicitly. And
considering that she had even written a nursing book which contained the law
and jurisprudence on will and succession, there is more than sufficient showing
that she knows the character of the testamentary act.
In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the allowance
of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the
disallowance of herein holographic will. While it was alleged that the said will was
procured by undue and improper pressure and influence on the part of the
beneficiary or of some other person, the evidence adduced have not shown any
instance where improper pressure or influence was exerted on the testatrix.
(Private respondent) Clemente Sand has testified that the testatrix was still alert
at the time of the execution of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also established that she is a very
intelligent person and has a mind of her own. Her independence of character and
to some extent, her sense of superiority, which has been testified to in Court, all
show the unlikelihood of her being unduly influenced or improperly pressured to
make the aforesaid will. It must be noted that the undue influence or improper
pressure in question herein only refer to the making of a will and not as to the
specific testamentary provisions therein which is the proper subject of another
proceeding. Hence, under the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New
Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are
signed without being dated, and the last disposition has a signature and date,
such date validates the dispositions preceding it, whatever be the time of prior
dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic
will, the testator must authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or signed
but not dated. It also found that the erasures, alterations and cancellations made thereon had not
been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the
following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at
the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part
of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature
thereto.

Considering then that it is a well-established doctrine in the law on succession In the same vein, Article 839 of the New Civil Code reads:
that in case of doubt, testate succession should be preferred over intestate
succession, and the fact that no convincing grounds were presented and proven Art. 839: The will shall be disallowed in any of the following cases;
for the disallowance of the holographic will of the late Annie Sand, the aforesaid
will submitted herein must be admitted to probate. 3 (Citations omitted.)
(1) If the formalities required by law have not been complied with;
On appeal, said Decision was reversed, and the petition for probate of decedent's will was
dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements (2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
 (3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to
admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument
submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent had the necessary
testamentary capacity at the time the will was executed; and, (4) whether the execution of the
will and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not
executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814
of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will.
This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), 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. 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 last will, must be
disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the
New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement
that they be totally autographic or handwritten by the testator himself, 7 as provided under Article
810 of the New Civil Code, thus:
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. (Emphasis
supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of
the dispositions contained in the holographic will, but not its probate. If the testator fails to sign
and date some of the dispositions, the result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with
the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this
Court held:
Ordinarily, when a number of erasures, corrections, and interlineations made by
the testator in a holographic Will have not been noted under his signature, . . . the
Will is not thereby invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined. Manresa gave an identical
commentary when he said "la omission de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date
of the holographic will or on testator's signature, 9 their presence does not invalidate the will
itself. 10 The lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and
dating of dispositions appear in provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the holographic will (Article 810). The
distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator writes it himself in the form
and with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full age.
 In order that the will be valid it must be drawn on stamped paper corresponding ROSA K. KALAW, petitioner,
to the year of its execution, written in its entirety by the testator and signed by vs.
him, and must contain a statement of the year, month and day of its execution. HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI,
Lipa City, and GREGORIO K. KALAW, respondents.
If it should contain any erased, corrected, or interlined words, the testator must
identify them over his signature. Leandro H. Fernandez for petitioner.

Foreigners may execute holographic wills in their own language. Antonio Quintos and Jose M. Yacat for respondents.

This separation and distinction adds support to the interpretation that only the requirements of
Article 810 of the New Civil Code — and not those found in Articles 813 and 814 of the same
Code — are essential to the probate of a holographic will. MELENCIO-HERRERA, J.:

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir
house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
be affirmed. Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December
24, 1968.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic
validity of the will sought to be probated. However, in exceptional instances, courts are not The holographic Will reads in full as follows:
powerless to do what the situation constrains them to do, and pass upon certain provisions of the
will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the My Last will and Testament
Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr.
Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by
In the name of God, Amen.
respondent court, she cannot validly dispose of the whole property, which she shares with her
father's other heirs.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound
and disposing mind and memory, do hereby declare thus to be my last will and testament.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in
CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with
respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del 1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance
Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q- with the rights of said Church, and that my executrix hereinafter named provide and erect at the
37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie expose of my state a suitable monument to perpetuate my memory.
Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property.
No costs. xxx xxx xxx

SO ORDERED. The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole
heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in
Republic of the Philippines substance, that the holographic Will contained alterations, corrections, and insertions without the
SUPREME COURT proper authentication by the full signature of the testatrix as required by Article 814 of the Civil
Manila Code reading:

FIRST DIVISION Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will the testator must authenticate the same by his full signature.
G.R. No. L-40207 September 28, 1984
ROSA's position was that the holographic Will, as first written, should be given effect and
probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in
part:
The document Exhibit "C" was submitted to the National Bureau of Investigation
for examination. The NBI reported that the handwriting, the signature, the
insertions and/or additions and the initial were made by one and the same
person. Consequently, Exhibit "C" was the handwriting of the decedent, Natividad
K. Kalaw. The only question is whether the win, Exhibit 'C', should be admitted to
probate although the alterations and/or insertions or additions above-mentioned
were not authenticated by the full signature of the testatrix pursuant to Art. 814 of
the Civil Code. The petitioner contends that the oppositors are estopped to assert
the provision of Art. 814 on the ground that they themselves agreed thru their
counsel to submit the Document to the NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree, nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit "C". Finding the insertions, alterations and/or additions in
Exhibit "C" not to be authenticated by the full signature of the testatrix Natividad
K. Kalaw, the Court will deny the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
insertions were the testatrix, the denial to probate of her holographic Will would be contrary to
her right of testamentary disposition. Reconsideration was denied in an Order, dated November
2, 1973, on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires
no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2,
1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal
question of whether or not the original unaltered text after subsequent alterations and insertions
were voided by the Trial Court for lack of authentication by the full signature of the testatrix,
should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as
a whole, but at most only as respects the particular words erased, corrected or interlined.1 Manresa
gave an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but which alteration did
not carry the requisite of full authentication by the full signature of the testator, the effect must be
that the entire Will is voided or revoked for the simple reason that nothing remains in the Will
after that which could remain valid. To state that the Will as first written should be given efficacy
is to disregard the seeming change of mind of the testatrix. But that change of mind can neither
be given effect because she failed to authenticate it in the manner required by law by affixing her
full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves
but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and
alterations made by the testatrix herein, her real intention cannot be determined with certitude.
As Manresa had stated in his commentary on Article 688 of the Spanish Civil Code, whence
Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que
no declara la nulidad de un testamento olografo que contenga palabras
tachadas, enmendadas o entre renglones no salvadas por el testador bajo su
firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal
omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al
testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel que
determine las condiciones necesarias para la validez del testamento olografo, ya
porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva
del testamento, vinieran a anular este, y ya porque el precepto contenido en
dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art. 26
de la ley del Notariado que declara nulas las adiciones apostillas
entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre
que no se salven en la forma prevenida, paro no el documento que las contenga,
y con mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes de ortografia o de
purez escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar
saan de pala bras que no afecter4 alteren ni uarien de modo substancial la
express voluntad del testador manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo
 por no estar salvada por el testador la enmienda del guarismo ultimo del año en
que fue extendido3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.
(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

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

FIRST DIVISION (4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
G.R. No. L-58509 December 7, 1982
The appellees likewise moved for the consolidation of the case with another case
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA Sp. Proc. No, 8275). Their motion was granted by the court in an order dated
deceased, MARCELA RODELAS, petitioner-appellant, April 4, 1977.
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. 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:
Luciano A. Joson for petitioner-appellant.
(1) The alleged holographic was not a last will but merely an instruction as to the
Cesar Paralejo for oppositor-appellee. 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.
RELOVA, J.:
Upon opposition of the appellant, the motion to dismiss was denied by the court
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to
in its order of February 23, 1979.
Section 3, Rule 50 of the Rules of Court.
The appellees then filed a motion for reconsideration on the ground that the order
As found by the Court of Appeals:
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
... On January 11, 1977, appellant filed a petition with the Court of First Instance court set aside its order of February 23, 1979 and dismissed the petition for the
of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the probate of the will of Ricardo B. Bonilla. The court said:
issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc.
No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine
... It is our considered opinion that once the original copy of the holographic will is
Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following
lost, a copy thereof cannot stand in lieu of the original.
grounds:
 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.
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.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 176831 January 15, 2010
UY KIAO ENG, Petitioner,
vs.
NIXON LEE, Respondent.
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court,
assailing the August 23, 2006 Amended Decision1 of the Court of Appeals (CA) in CA-G.R. SP
No. 91725 and the February 23, 2007 Resolution,2 denying the motion for reconsideration
thereof.
The relevant facts and proceedings follow.
Alleging that his father passed away on June 22, 1992 in Manila and left a holographic will,
which is now in the custody of petitioner Uy Kiao Eng, his mother, respondent Nixon Lee filed, on
May 28, 2001, a petition for mandamus with damages, docketed as Civil Case No. 01100939,
before the Regional Trial Court (RTC) of Manila, to compel petitioner to produce the will so that
probate proceedings for the allowance thereof could be instituted. Allegedly, respondent had
already requested his mother to settle and liquidate the patriarch’s estate and to deliver to the
legal heirs their respective inheritance, but petitioner refused to do so without any justifiable
reason.3
In her answer with counterclaim, petitioner traversed the allegations in the complaint and posited
that the same be dismissed for failure to state a cause of action, for lack of cause of action, and
for non-compliance with a condition precedent for the filing thereof. Petitioner denied that she
was in custody of the original holographic will and that she knew of its whereabouts. She,
moreover, asserted that photocopies of the will were given to respondent and to his siblings. As
a matter of fact, respondent was able to introduce, as an exhibit, a copy of the will in Civil Case
No. 224-V-00 before the RTC of Valenzuela City. Petitioner further contended that respondent
should have first exerted earnest efforts to amicably settle the controversy with her before he
filed the suit.4
The RTC heard the case. After the presentation and formal offer of respondent’s evidence,
petitioner demurred, contending that her son failed to prove that she had in her custody the
original holographic will. Importantly, she asserted that the pieces of documentary evidence
presented, aside from being hearsay, were all immaterial and irrelevant to the issue involved in
the petition—they did not prove or disprove that she unlawfully neglected the performance of an
act which the law specifically enjoined as a duty resulting from an office, trust or station, for the
court to issue the writ of mandamus.5
The RTC, at first, denied the demurrer to evidence.6 In its February 4, 2005 Order,7 however, it
granted the same on petitioner’s motion for reconsideration. Respondent’s motion for
reconsideration of this latter order was denied on September 20, 2005.8 Hence, the petition was
dismissed.
Aggrieved, respondent sought review from the appellate court. On April 26, 2006, the CA initially
denied the appeal for lack of merit. It ruled that the writ of mandamus would issue only in
instances when no other remedy would be available and sufficient to afford redress. Under Rule
76, in an action for the settlement of the estate of his deceased father, respondent could ask for
the presentation or production and for the approval or probate of the holographic will. The CA
further ruled that respondent, in the proceedings before the trial court, failed to present sufficient
evidence to prove that his mother had in her custody the original copy of the will.9 1avvphi1
Respondent moved for reconsideration. The appellate court, in the assailed August 23, 2006
Amended Decision,10granted the motion, set aside its earlier ruling, issued the writ, and ordered
the production of the will and the payment of attorney’s fees. It ruled this time that respondent
was able to show by testimonial evidence that his mother had in her possession the holographic
will.
Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The appellate
court denied this motion in the further assailed February 23, 2007 Resolution.11
Left with no other recourse, petitioner brought the matter before this Court, contending in the
main that the petition for mandamus is not the proper remedy and that the testimonial evidence
used by the appellate court as basis for its ruling is inadmissible.12
The Court cannot sustain the CA’s issuance of the writ.
The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides that—
SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, immediately or at some other time to be specified by the
court, to do the act required to be done to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the respondent.13
Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of
the state or the sovereign, directed to some inferior court, tribunal, or board, or to some
corporation or person requiring the performance of a particular duty therein specified, which duty
results from the official station of the party to whom the writ is directed or from operation of
law.14 This definition recognizes the public character of the remedy, and clearly excludes the idea
that it may be resorted to for the purpose of enforcing the performance of duties in which the
public has no interest.15 The writ is a proper recourse for citizens who seek to enforce a public
right and to compel the performance of a public duty, most especially when the public right
involved is mandated by the Constitution.16 As the quoted provision instructs, mandamus will lie if
the tribunal, corporation, board, officer, or person unlawfully neglects the performance of an act
which the law enjoins as a duty resulting from an office, trust or station.17
The writ of mandamus, however, will not issue to compel an official to do anything which is not
his duty to do or which it is his duty not to do, or to give to the applicant anything to which he is
not entitled by law.18 Nor will mandamus issue to enforce a right which is in substantial dispute or
as to which a substantial doubt exists, although objection raising a mere technical question will
be disregarded if the right is clear and the case is meritorious.19 As a rule, mandamus will not lie
in the absence of any of the following grounds: [a] that the court, officer, board, or person against
whom the action is taken unlawfully neglected the performance of an act which the law
specifically enjoins as a duty resulting from office, trust, or station; or [b] that such court, officer,
board, or person has unlawfully excluded petitioner/relator from the use and enjoyment of a right
or office to which he is entitled.20 On the part of the relator, it is essential to the issuance of a writ
of mandamus that he should have a clear legal right to the thing demanded and it must be the
imperative duty of respondent to perform the act required.21
Recognized further in this jurisdiction is the principle that mandamus cannot be used to enforce
contractual obligations.22 Generally, mandamus will not lie to enforce purely private contract
rights, and will not lie against an individual unless some obligation in the nature of a public or
quasi-public duty is imposed.23 The writ is not appropriate to enforce a private right against an
individual.24 The writ of mandamus lies to enforce the execution of an act, when, otherwise,
justice would be obstructed; and, regularly, issues only in cases relating to the public and to the
government; hence, it is called a prerogative writ.25 To preserve its prerogative character,
mandamus is not used for the redress of private wrongs, but only in matters relating to the
public.26
Moreover, an important principle followed in the issuance of the writ is that there should be no
plain, speedy and adequate remedy in the ordinary course of law other than the remedy of
mandamus being invoked.27 In other words, mandamus can be issued only in cases where the
usual modes of procedure and forms of remedy are powerless to afford relief.28 Although
classified as a legal remedy, mandamus is equitable in its nature and its issuance is generally
controlled by equitable principles.29 Indeed, the grant of the writ of mandamus lies in the sound
discretion of the court.
In the instant case, the Court, without unnecessarily ascertaining whether the obligation involved
here—the production of the original holographic will—is in the nature of a public or a private duty,
rules that the remedy of mandamus cannot be availed of by respondent Lee because there lies
another plain, speedy and adequate remedy in the ordinary course of law. Let it be noted that
respondent has a photocopy of the will and that he seeks the production of the original for
purposes of probate. The Rules of Court, however, does not prevent him from instituting probate
proceedings for the allowance of the will whether the same is in his possession or not. Rule 76,
Section 1 relevantly provides:
Section 1. Who may petition for the allowance of will.—Any executor, devisee, or legatee named
in a will, or any other person interested in the estate, may, at any time, after the death of the
testator, petition the court having jurisdiction to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed.
An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production of the
original holographic will. Thus—
SEC. 2. Custodian of will to deliver.—The person who has custody of a will shall, within twenty
(20) days after he knows of the death of the testator, deliver the will to the court having
jurisdiction, or to the executor named in the will.
SEC. 3. Executor to present will and accept or refuse trust.—A person named as executor in a
will shall within twenty (20) days after he knows of the death of the testator, or within twenty (20)
days after he knows that he is named executor if he obtained such knowledge after the death of
the testator, present such will to the court having jurisdiction, unless the will has reached the
court in any other manner, and shall, within such period, signify to the court in writing his
acceptance of the trust or his refusal to accept it.
SEC. 4. Custodian and executor subject to fine for neglect.—A person who neglects any of the
duties required in the two last preceding sections without excuse satisfactory to the court shall be
fined not exceeding two thousand pesos.
SEC. 5. Person retaining will may be committed.—A person having custody of a will after the
death of the testator who neglects without reasonable cause to deliver the same, when ordered
so to do, to the court having jurisdiction, may be committed to prison and there kept until he
delivers the will.30
There being a plain, speedy and adequate remedy in the ordinary course of law for the
production of the subject will, the remedy of mandamus cannot be availed of. Suffice it to state
that respondent Lee lacks a cause of action in his petition. Thus, the Court grants the demurrer.
WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The
August 23, 2006 Amended Decision and the February 23, 2007 Resolution of the Court of
Appeals in CA-G.R. SP No. 91725 are REVERSED and SET ASIDE. Civil Case No. 01100939
before the Regional Trial Court of Manila is DISMISSED.
SO ORDERED.
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 2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.
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 (Sgd) Matilde Vda de Ramonal
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 August 30, 1978
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
3. My jewelry's shall be divided among:
personal letters of the deceased to her creditors.
1. Eufemia Patigas
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 2. Josefina Salcedo
the signatures in said will, were that of the deceased.
3. Evangeline Calugay
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 (Sgd) Matilde Vda de Ramonal
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 August 30, 1978
similar to that of the deceased, Matilde Seño Vda. de Ramonal, but he can not be sure.
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay
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 (Sgd) Matilde Vda de Ramonal
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. August 30, 1978

Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the 5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R.
deceased since birth, and was in fact adopted by the latter. That after a long period of time she Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.
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. (Sgd) Matilde Vda de Ramonal
The holographic will which was written in Visayan, is translated in English as follows:
August 30, 1978
Instruction 6. Bury me where my husband Justo is ever buried.
August 30, 1978
(Sgd) Matilde Vda de Ramonal
1. My share at Cogon, Raminal Street, for Evangeline Calugay. August 30, 1978
(Sgd) Matilde Vda de Ramonal Gene and Manuel:
August 30, 1978
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 A. From the land rentals and commercial buildings at Pabayo-Gomez streets.12
holographic will of Matilde Seño Vda. de Ramonal.
xxx xxx xxx
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 Q. Who sometime accompany her?
holographic will, that at least three witnesses explicitly declare that the signature in the will is the
genuine signature of the testator. 1âw phi 1.nêt

A. I sometimes accompany her.

We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. Q. In collecting rentals does she issue receipts?
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
A. Yes, sir.13
presumption is that the word "shall," when used in a statute is mandatory.11
xxx xxx xxx
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 Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring
will employ means to defeat the wishes of the testator. to as one of the receipts which she issued to them?

So, we believe that the paramount consideration in the present petition is to determine the true A. Yes, sir.
intent of the deceased. An exhaustive and objective consideration of the evidence is imperative
to establish the true intent of the testator. Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs.
Binanay?
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, A. Matilde vda. De Ramonal.
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 Q. Why do you say that is the signature of Matilde Vda. De Ramonal?
appearing in the holographic was that of the deceased.
A. I am familiar with her signature.
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 Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal
longer available. kept records of the accounts of her tenants?

Matilde Ramonal Binanay, on the other hand, testified that: A. Yes, sir.

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your Q. Why do you say so?
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. Because we sometimes post a record of accounts in behalf of Matilde Vda. De
Ramonal.
A. Collecting rentals.
Q. How is this record of accounts made? How is this reflected?
Q. From where?
A. In handwritten.14
 xxx xxx xxx 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.
Q. In addition to collection of rentals, posting records of accounts of tenants and deed Binanay. She testified that:
of sale which you said what else did you do to acquire familiarity of the signature of
Matilde Vda De Ramonal? 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. Posting records.
A. Yes, sir.
Q. Aside from that?
Q. Who was in possession of that will?
A. Carrying letters.
A. I.
Q. Letters of whom?
Q. Since when did you have the possession of the will?
A. Matilde.
A. It was in my mother's possession.
Q. To whom?
Q. So, it was not in your possession?
A. To her creditors.15
A. Sorry, yes.
xxx xxx xxx
Q. And when did you come into possession since as you said this was originally in the
Q. You testified that at time of her death she left a will. I am showing to you a document possession of your mother?
with its title "tugon" is this the document you are referring to?
A. 1985.17
A. Yes, sir.
xxx xxx xxx
Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting
is this? 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. My Aunt.
A. It was not given to me by my mother, I took that in the aparador when she died.
Q. Why do you say this is the handwriting of your aunt?
Q. After taking that document you kept it with you?
A. Because I am familiar with her signature. 16

A. I presented it to the fiscal.

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 Q. For what purpose?
or write a note.
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, 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?

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that A. In writing.
correct?
Q. How did you know that she was exhausted when you were not present and you just
A. Yes, sir. tried to explain yourself out because of the apparent inconsistencies?

Q. She was up and about and was still uprightly and she could walk agilely and she A. That was I think. (sic).
could go to her building to collect rentals, is that correct?
Q. Now, you already observed this signature dated 1978, the same year as the alleged
A. Yes, sir.19 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
xxx xxx xxx Eufemia R. Patigas here refers to one of the petitioners?

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are A. Yes, sir.
retracings in the word Vda.?
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature
A. Yes, a little. The letter L is continuous. 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?
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.21
A. Yes, sir.
Evangeline Calugay declared that the holographic will was written, dated and signed in the
handwriting of the testator. She testified that:
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is
continued towards letter D.
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
A. Yes, sir.
rendered to Matilde Ramonal?
Q. And there is a retracing in the word Vda.?
A. During my stay I used to go with her to the church, to market and then to her
transactions.
A. Yes, sir.20
Q. What else? What services that you rendered?
xxx xxx xxx
 A. After my college days I assisted her in going to the bank, paying taxes and to her xxx xxx xxx
lawyer.
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal
Q. What was your purpose of going to her lawyer? have legitimate children?

A. I used to be her personal driver. A. As far as I know they have no legitimate children.25

Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting xxx xxx xxx
of Matilde Vda de Ramonal?
Q. You said after becoming a lawyer you practice your profession? Where?
A. Yes, sir.
A. Here in Cagayan de Oro City.
Q. How come that you acquired familiarity?
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. Because I lived with her since birth.22
A. I assisted her in terminating the partition, of properties.
xxx xxx xxx
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what
Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, case is that, Fiscal?
1978 there is a signature here below item No. 1, will you tell this court whose signature is
this? A. It is about the project partition to terminate the property, which was under the court
before.26
A. Yes, sir, that is her signature.
xxx xxx xxx
Q. Why do you say that is her signature?
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked
A. I am familiar with her signature.23 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?
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 A. That is the signature of Matilde Vda de Ramonal.
deceased write a note or sign a document.
Q. Also in exhibit n-3, whose signature is this?
The former lawyer of the deceased, Fiscal Waga, testified that:
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27
Q. Do you know Matilde Vda de Ramonal?
xxx xxx xxx
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. 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
Q. Can you tell the name of the husband? Matilde Vda de Ramonal?

A. The late husband is Justo Ramonal.24

A. I can not remember if I have assisted her in other matters but if there are documents
to show that I have assisted then I can recall.28
xxx xxx xxx
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this
document, Fiscal Waga and tell the court whether you are familiar with the handwriting
contained in that document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de
Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you
tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the
court whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.29
xxx xxx xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de
Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are
merely supposing that it seems to be her signature because it is similar to the signature
of the project of partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and
disregard the requirement of three witnesses in case of contested holographic will, citing the
decision in Azaola vs. Singson,31ruling that the requirement is merely directory and not
mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way as to attain these primordial ends. But
on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will of
the testator, which is why if the holographic will is contested, that law requires three witnesses to
declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of Ms.
Binanay, she revealed that the will was in her possession as early as 1985, or five years before
the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the
deceased with other documents signed and executed by her during her lifetime. The only chance
at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners
asked Ms. Binanay to compare the documents which contained the signature of the deceased
with that of the holographic will and she is not a handwriting expert. Even the former lawyer of
the deceased expressed doubts as to the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different when
compared with other documents written by the testator. The signature of the testator in some of
the disposition is not readable. There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,33 and the signatures in
several documents such as the application letter for pasture permit dated December 30,
1980,34 and a letter dated June 16, 1978,35the 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 married to Nicolas Potot", and that "while each of the testators is yet living, he or she will
handwriting by the deceased. continue to enjoy the fruits of the two lands aforementioned", the said two parcels of land
being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered Lugo, municipality of Borbon, province of Cebu. Bernabe dela Serna died on August 30,
remanded to the court of origin with instructions to allow petitioners to adduce evidence in 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela
support of their opposition to the probate of the holographic will of the deceased Matilde Seño before the Court of First Instance of Cebu which, after due publication as required by law
vda. de Ramonal. 1âwphi 1.nêt
and there being no opposition, heard the evidence, and, by Order of October 31, 1939; in
Special Proceedings No. 499, "declara legalizado el documento Exhibit A como el
No costs. testamento y ultima voluntad del finado Bernabe de la Serna con derecho por parte du
su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A
de gozar de los frutos de los terranos descritos en dicho documents; y habido
SO ORDERED.
consideracion de la cuantia de dichos bienes, se decreta la distribucion sumaria de los
mismos en favor de la logataria universal Manuela Rebaca de Potot previa prestacion
Republic of the Philippines por parte de la misma de una fianza en la sum de P500.00 para responder de
SUPREME COURT cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de
Manila la Serna de los años desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de
la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition for
EN BANC the probate of the same will insofar as Gervasia was concerned was filed on November
6, 1952, being Special Proceedings No. 1016-R of the same Court of First Instance of
G.R. No. L-20234 December 23, 1964 Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to
appear, for the hearing of said petition, the case was dismissed on March 30, 1954 Spec.
PAULA DE LA CERNA, ET AL., petitioners, Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca).
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF The Court of First Instance ordered the petition heard and declared the testament null and void,
APPEALS, respondents. for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code
of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the
Philip M. Alo and Crispin M. Menchavez for petitioners. Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a
Nicolas Jumapao for respondents. court of probate jurisdiction and conclusive on the due execution of the testament. Further, the
Court of Appeals declared that:
REYES, J.B.L., J.:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division making of a will jointly by two or more persons either for their reciprocal benefit or for the
(C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R- benefit of a third person. However, this form of will has long been sanctioned by use, and
3819) and ordering the dismissal of an action for partition. the same has continued to be used; and when, as in the present case, one such joint last
will and testament has been admitted to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to give effect to the provisions
The factual background appears in the following portion of the decision of the Court of Appeals
(Petition, Annex A, pp. 2-4): thereof that are not contrary to law, as was done in the case of Macrohon vs. Saavedra,
51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will
therein mentioned, saying, "assuming that the joint will in question is valid."
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia
Rebaca, executed a joint last will and testament in the local dialect whereby they willed
that "our two parcels of land acquired during our marriage together with all improvements Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.
thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since
childhood, because God did not give us any child in our union, Manuela Rebaca being The appealed decision correctly held that the final decree of probate, entered in 1939 by the
Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive
effect as to his last will and testament despite the fact that even then the Civil Code already
decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor
of a third party (Art. 669, old Civil Code). The error thus committed by the probate court was an
error of law, that should have been corrected by appeal, but which did not affect the jurisdiction
of the probate court, nor the conclusive effect of its final decision, however erroneous. A final
judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo
vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound
practice demand that at the risk of occasional errors judgment of courts should become final at
some definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38
Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939
decree admitting his will to probate. The contention that being void the will cannot be validated,
overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and
here they have spoken with finality when the will was probated in 1939. On this court, the
dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future misunderstanding,
that the probate decree in 1989 could only affect the share of the deceased husband, Bernabe
de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who
was then still alive, and over whose interest in the conjugal properties the probate court acquired
no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that
prior to the new Civil Code, a will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must
be, on her death, reexamined and adjudicated de novo, since a joint will is considered a
separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu
that the joint will is one prohibited by law was correct as to the participation of the deceased
Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our
decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs.
Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common usage could not
make them valid when our Civil Codes consistently invalidated them, because laws are only
repealed by other subsequent laws, and no usage to the contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No.
23763-R is affirmed. No Costs.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First Division,1 promulgated
on May 4, 1973 in CA G.R. No. 36523-R which reversed the decision of the Court of First
Instance of Rizal dated December 15, 1964 and allowed the probate of the last will and
testament of the deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition
with the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the
probate of a will alleged to have been executed by the deceased Isabel Gabriel and designating
therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and
without issue in the municipality of Navotas, province of Rizal her place of residence, on June 7,
1961 at the age of eighty-five (85), having been born in 1876. It is likewise not controverted that
herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces
of the deceased, and that private respondent, with her husband and children, lived with the
deceased at the latters residence prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have
been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the
death of Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation
clause and the acknowledgment of the notary public were written. The signatures of the
deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of all
the pages. The attestation clause, which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay
pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na
ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang
dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15
ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang
nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon
(page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat at
bawat dahon (and on the left hand margin of each and every page), sa harap ng
lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng
testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D.
Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading
"Tirahan", are their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia,
and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the
left margin of all the other pages. The WW is paged by typewritten words as follows: "Unang
Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc.,
appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas,
Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from
her estate; that all her obligations, if any, be paid; that legacies in specified amounts be given to
her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews
and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed
Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed
Santiago. To herein private respondent Lutgarda Santiago, who was described in the will by the
testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng
isang tunay na anak" and named as universal heir and executor, were bequeathed all properties
and estate, real or personal already acquired, or to be acquired, in her testatrix name, after
satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the
document purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported wilt the decedent
lacked testamentary capacity due to old age and sickness; and in the second
alternative
4. That the purported WW was procured through undue and improper pressure
and influence on the part of the principal beneficiary, and/or of some other person
for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a
quo rendered judgment, the summary and dispositive portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court
finds:
1. That there is no iota of evidence to support the contentio that the purported will
of the deceased was procured through undue and improper pressure and
influence on the part of the petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the contention that at the time of
the alleged execution of the purported will, the deceased lacked testamentary
capacity due to old age and sickness;
3. That sufficient and abundant evidence warrants conclusively the fact that the
purported will of the deceased was not executed and attested as required by law;
4. That the evidence is likewise conclusive that the document presented for
probate, Exhibit 'F' is not the purported win allegedly dictated by the deceased,
executed and signed by her, and attested by her three attesting witnesses on
April 15, 1961.
WHEREFORE, Exhibit "F", the document presented for probate as the last wig
and testament of the deceased Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence,
the only issue decided on appeal was whether or not the will in question was executed and
attested as required by law. The Court of Appeals, upon consideration of the evidence adduced
by both parties, rendered the decision now under review, holding that the will in question was
signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the
three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and
witnessing the document in the presence of the deceased and of each other as required by law,
hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and
such motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties
submitted their respective Memoranda, 5and on August 28, 1973, respondent Court, Former
Special First Division, by Resolution 6 denied the motion for reconsideration stating that:
The oppositor-appellee contends that the preponderance of evidence shows that
the supposed last wig and testament of Isabel Gabriel was not executed in
accordance with law because the same was signed on several occasions, that
the testatrix did not sign the will in the presence of all the instrumental witnesses
did not sign the will in the presence of each other.
The resolution of the factual issue raised in the motion for reconsideration hinges
on the appreciation of the evidence. We have carefully re-examined the oral and
documentary evidence of record, There is no reason to alter the findings of fact in
the decision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent
Court abused its discretion and/or acted without or in excess of its jurisdiction in reverssing the
findings of fact and conclusions of the trial court. The Court, after deliberating on the petition but
without giving due course resolved, in the Resolution dated Oct. 11, 1973 to require the
respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon
consideration of the allegations, the issues raised and the arguments adduced in the petition, as
well as the Comment 8 of private respondent thereon, We denied the petition by Resolution on
November 26, 1973, 9 the question raised being factual and for insufficient showing that the
findings of fact by respondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for
Reconsideration 10 which private respondent answered by way of her Comment or
Opposition 11 filed on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on
March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed
and attested as required by law when there was absolutely no proof that the three instrumental
witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and
execution of the win Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that
Isabel Gabriel could have dictated the wilt Exhibit "F , without any note or document, to Atty.
Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was
not physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the
deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the
picture takings as proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from
the accepted and usual course of judicial proceedings, as to call for an exercise of the power of
supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate
Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in
character and content. Hence, at the very outset, We must again state the oft-repeated and well-
established rule that in this jurisdiction, the factual findings of the Court of Appeals are not
reviewable, the same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA
737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more
recent cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda.
de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the
case of Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it
has been well-settled that the jurisdiction of tills Court in cases brought to us from the Court of
Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact
being conclusive. More specifically, in a decision exactly a month later, this Court, speaking
through the then Justice Laurel, it was held that the same principle is applicable, even if the
Court of Appeals was in disagreement with the lower court as to the weight of the evidence with
a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive
evidence are not reviewable on appeal by certiorari. Said findings of the appellate court are final
and cannot be disturbed by Us particularly because its premises are borne out by the record or
based upon substantial evidence and what is more, when such findings are correct. Assignments
of errors involving factual issues cannot be ventilated in a review of the decision of the Court of
Appeals because only legal questions may be raised. The Supreme Court is not at liberty to alter
or modify the facts as set forth in the decision of the Court of Appeals sought to be reversed.
Where the findings of the Court of Appeals are contrary to those of the trial court, a minute
scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes
necessary. The general rule We have thus stated above is not without some recognized
exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider
petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in
holding that the document, Exhibit "F", was executed and attested as required by law when there
was absolutely no proof that the three instrumental witnesses were credible witnesses. She
argues that the require. ment in Article 806, Civil Code, that the witnesses must be credible is an
absolute requirement which must be complied with before an alleged last will and testament may
be admitted to probate and that to be a credible witness, there must be evidence on record that
the witness has a good standing in his community, or that he is honest and upright, or reputed to
be trustworthy and reliable. According to petitioner, unless the qualifications of the witness are
first established, his testimony may not be favorably considered. Petitioner contends that the
term "credible" is not synonymous with "competent" for a witness may be competent under
Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the
same Code. It is further urged that the term "credible" as used in the Civil Code should receive
the same settled and well- known meaning it has under the Naturalization Law, the latter being a
kindred legislation with the Civil Code provisions on wigs with respect to the qualifications of
witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification
from being a witness to a win. These Articles state:
Art. 820. Any person of sound mind and of the age of eighteen years or more,
and not blind, deaf or dumb, and able to read and write, may be a witness to the
execution of a will mentioned in article 806 of this Code. "Art. 821. The following
are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or false
testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time
during the trial as to his good standing in the community, his reputation for trustworthythiness
and reliableness, his honesty and uprightness in order that his testimony may be believed and
accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the
Civil Code are complied with, such that the soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him, that his age (18 years or more) is shown
from his appearance, testimony , or competently proved otherwise, as well as the fact that he is
not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and
that he has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's
contention that it must first be established in the record the good standing of the witness in the
community, his reputation for trustworthiness and reliableness, his honesty and uprightness,
because such attributes are presumed of the witness unless the contrary is proved otherwise by
the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil
Code should be given the same meaning it has under the Naturalization Law where the law is
mandatory that the petition for naturalization must be supported by two character witnesses who
must prove their good standing in the community, reputation for trustworthiness and reliableness,
their honesty and uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the petitioner to be a
resident of the Philippines for the period of time required by the Act and a person of good repute
and morally irreproachable and that said petitioner has in their opinion all the qualifications
necessary to become a citizen of the Philippines and is not in any way disqualified under the
provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely
attest the execution of a will or testament and affirm the formalities attendant to said execution.
And We agree with the respondent that the rulings laid down in the cases cited by petitioner
concerning character witnesses in naturalization proceedings are not applicable to instrumental
witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses,
namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is
satisfactorily supported by the evidence as found by the respondent Court of Appeals, which
findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not
pointed to any disqualification of any of the said witnesses, much less has it been shown that
anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or
write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will,
must be subscribed at the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another, While the
petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a
witness due to his qualifications under the first Article and none of the disqualifications under the
second Article, whereas Article 805 requires the attestation of three or more credible witnesses,
petitioner concludes that the term credible requires something more than just being competent
and, therefore, a witness in addition to being competent under Articles 820 and 821 must also be
a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses are
credible in themselves, that is, that they are of good standing in the community since one was a
family driver by profession and the second the wife of the driver, a housekeeper. It is true that
Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a
housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix But the
relation of employer and employee much less the humble or financial position of a person do not
disqualify him to be a competent testamentary witness. (Molo Pekson and Perez Nable vs.
Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code,
this being obvious from that portion of Article 820 which says "may be Q witness to the execution
of a will mentioned in Article 805 of this Code," and cites authorities that the word "credible"
insofar as witnesses to a will are concerned simply means " competent." Thus, in the case
of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly
executed and that it was in existence at the time of, and not revoked before, the death of the
testator, still the provisions of the lost wig must be clearly and distinctly proved by at least two
credible witnesses. 'Credible witnesses' mean competent witnesses and not those who testify to
facts from or upon hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held
that "Section 620 of the same Code of Civil Procedure provides that any person of sound mind,
and of the age of eighteen years or more, and not blind, deaf, or dumb and able to read and
write, may be a witness to the execution of a will. This same provision is reproduced in our New
Civil Code of 1950, under Art. 820. The relation of employer and employee, or being a relative to
the beneficiary in a win, does not disqualify one to be a witness to a will. The main qualification
of a witness in the attestation of wills, if other qualifications as to age, mental capacity and
literacy are present, is that said witness must be credible, that is to say, his testimony may be
entitled to credence. There is a long line of authorities on this point, a few of which we may cite:
A 'credible witness is one who is not is not to testify by mental incapacity, crime,
or other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix
16, 134 Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will means a
'competent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A,
837. (lbid, p. 341).
Expression 'credible witness' in relation to attestation of wins means 'competent
witness that is, one competent under the law to testify to fact of execution of will.
Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ.
App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills requiring that a will shall be
attested by two credible witnesses means competent; witnesses who, at the time
of attesting the will, are legally competent to testify, in a court of justice, to the
facts attested by subscribing the will, the competency being determined as of the
date of the execution of the will and not of the timr it is offered for probate, Smith
vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills, means competent
witnesses — that is, such persons as are not legally disqualified from testifying in
courts of justice, by reason of mental incapacity, interest, or the commission of
crimes, or other cause excluding them from testifying generally, or rendering
them incompetent in respect of the particular subject matter or in the particular
suit. Hill vs. Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p,
343)
In the strict sense, the competency of a person to be an instrumental witness to a will is
determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends
On the appreciation of his testimony and arises from the belief and conclusion of the Court that
said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo
Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that:
"Competency as a witness is one thing, and it is another to be a credible witness, so credible that
the Court must accept what he says. Trial courts may allow a person to testify as a witness upon
a given matter because he is competent, but may thereafter decide whether to believe or not to
believe his testimony." In fine, We state the rule that the instrumental witnesses in Order to be
competent must be shown to have the qualifications under Article 820 of the Civil Code and none
of the disqualifications under Article 821 and for their testimony to be credible, that is worthy of
belief and entitled to credence, it is not mandatory that evidence be first established on record
that the witnesses have a good standing in the community or that they are honest and upright or
reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is
established otherwise. In other words, the instrumental witnesses must be competent and their
testimonies must be credible before the court allows the probate of the will they have attested.
We, therefore, reject petitioner's position that it was fatal for respondent not to have introduced
prior and independent proof of the fact that the witnesses were "credible witnesses that is, that
they have a good standing in the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution
of the will was expected and not coincidental, in finding that Atty. Paraiso was not previously
furnished with the names and residence certificates of the witnesses as to enable him to type
such data into the document Exhibit "F", in holding that the fact that the three typewritten lines
under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that
the three attesting witnesses were all present in the same occasion, in holding credible that
Isabel Gabriel could have dictated the will without note or document to Atty. Paraiso, in holding
that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the
deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in holding
that the trial court gave undue importance to the picture takings as proof that the will was
improperly executed, and in holding that the grave contradictions, evasions and
misrepresentations of the witnesses (subscribing and notary) presented by the petitioner had
been explained away.
Since the above errors are factual We must repeat what We have previously laid down that the
findings of fact of the appellate court are binding and controlling which We cannot review, subject
to certain exceptions which We win consider and discuss hereinafter. We are convinced that the
appellate court's findings are sufficiently justified and supported by the evidence on record. Thus,
the alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and
bringing all the witnesses without previous appointment for the preparation and execution of the
win and that it was coincidental that Atty. Paraiso was available at the moment impugns the
finding of the Court of Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and
of her companions to his office on April 15, 1961 was unexpected as there was no prior
appointment with him, but he explained that he was available for any business transaction on
that day and that Isabel Gabriel had earlier requested him to help her prepare her will. The
finding of the appellate court is amply based on the testimony of Celso Gimpaya that he was not
only informed on the morning of the day that he witnessed the will but that it was the third time
when Isabel Gabriel told him that he was going to witness the making of her will, as well as the
testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya to proceed to
Isabel Gabriel's house which was nearby and from said house, they left in a car to the lawyer's
office, which testimonies are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria
Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso
Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961
while Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on
April 14, 1961. The respondent Court correctly observed that there was nothing surprising in
these facts and that the securing of these residence certificates two days and one day,
respectively, before the execution of the will on April 15, 1961, far from showing an amazing
coincidence, reveals that the spouses were earlier notified that they would be witnesses to the
execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the office of Atty.
Paraiso was planned by the deceased, which conclusion was correctly drawn from the testimony
of the Gimpaya spouses that they started from the Navotas residence of the deceased with a
photographer and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house
in Philamlife, Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and
Orobia) passed by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the
clinic of Dr. Chikiamco before they proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that.
the will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the
execution of her will and that he told her that if she really wanted to execute her will, she should
bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that
he (Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the fact that he
believed her to be of sound and disposition mind. From this evidence, the appellate court rightly
concluded, thus: "It is, therefore, clear that the presence of Isabel Gabriel and her witnesses
Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer in the law office
of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel
herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names
and residence certificates of the witnesses as to enable him to type such data into the document
Exhibit ' L which the petitioner assails as contradictory and irreconcilable with the statement of
the Court that Atty. Paraiso was handed a list (containing the names of the witnesses and their
respective residence certificates) immediately upon their arrival in the law office by Isabel Gabriel
and this was corroborated by Atty. Paraiso himself who testified that it was only on said occasion
that he received such list from Isabel Gabriel, We cannot agree with petitioner's contention. We
find no contradiction for the, respondent Court held that on the occasion of the will making on
April 15, 1961, the list was given immediately to Atty. Paraiso and that no such list was given the
lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of
the witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the
will was executed, is of no moment for such data appear in the notarial acknowledgment of
Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961
following the attestation clause duly executed and signed on the same occasion, April 15, 1961.
And since Exhibit "F" is a notarial will duly acknowledged by the testatrix and the witnesses
before a notary public, the same is a public document executed and attested through the
intervention of the notary public and as such public document is evidence of the facts in clear,
unequivocal manner therein expressed. It has in its favor the presumption of regularity. To
contradict all these, there must be evidence that is clear, convincing and more than merely
preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by
petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten
lines under the typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil
that the three attesting witnesses were all present in the same occasion merits Our approval
because tills conclusion is supported and borne out by the evidence found by the appellate court,
thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date
issued" and place issued the only name of Isabel Gabriel with Residence Tax certificate No. A-
5113274 issued on February 24, 1961 at Navotas Rizal appears to be in typewritten form while
the names, residence tax certificate numbers, dates and places of issuance of said certificates
pertaining to the three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this
coincides with Atty. Paraiso's even the sale must be made to close relatives; and the seventh
was the appointment of the appellant Santiago as executrix of the will without bond. The
technical description of the properties in paragraph 5 of Exhibit F was not given and the numbers
of the certificates of title were only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and
the docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted
were supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel
could have dictated the will Exhibit "F" without any note or document to Atty. Paraiso,
considering that Isabel Gabriel was an old and sickly woman more than eighty-one years old and
had been suffering from a brain injury caused by two severe blows at her head and died of
terminal cancer a few weeks after the execution of Exhibit "F". While we can rule that this is a
finding of fact which is within the competency of the respondent appellate court in determining
the testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion reached by the Court of Appeals that the
testatrix dictated her will without any note or memorandum appears to be fully supported by the
following facts or evidence appearing on record. Thus, Isabel Gabriel, despite her age, was
particularly active in her business affairs as she actively managed the affairs of the movie
business ISABELITA Theater, paying the aparatistas herself until June 4, 1961, 3 days before
her death. She was the widow of the late Eligio Naval, former Governor of Rizal Province and
acted as coadministratrix in the Intestate Estate of her deceased husband Eligio Naval. The text
of the win was in Tagalog, a dialect known and understood by her and in the light of all the
circumstances, We agree with the respondent Court that the testatrix dictated her will without
any note or memorandum, a fact unanimously testified to by the three attesting witnesses and
the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the testatrix and the other two
witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very
clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia was physically
present when the will was signed by Isabel Gabriel on April '15, 1961 along with her co-
witnesses Celso Gimpaya and Maria Gimpaya. The trial court's conclusion that Orobia's
admission that she gave piano lessons to the child of the appellant on Wednesdays and
Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia could not
have been present to witness the will on that — day is purely conjectural. Witness Orobia did not
admit having given piano lessons to the appellant's child every Wednesday and Saturday without
fail. It is highly probable that even if April 15, 1961 were a Saturday, she gave no piano lessons
on that day for which reason she could have witnessed the execution of the will. Orobia spoke of
occasions when she missed giving piano lessons and had to make up for the same. Anyway, her
presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and there was
nothing to preclude her from giving piano lessons on the afternoon of the same day in Navotas,
Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde
was present on April 15, 1961 and that she signed the attestation clause to the will and on the
left-hand margin of each of the pages of the will, the documentary evidence which is the will
itself, the attestation clause and the notarial acknowledgment overwhelmingly and convincingly
prove such fact that Matilde Orobia was present on that day of April 15, 1961 and that she
witnessed the will by signing her name thereon and acknowledged the same before the notary
public, Atty. Cipriano P. Paraiso. The attestation clause which Matilde Orobia signed is the best
evidence as to the date of signing because it preserves in permanent form a recital of all the
material facts attending the execution of the will. This is the very purpose of the attestation
clause which is made for the purpose of preserving in permanent form a record of the facts
attending the execution of the will, so that in case of failure in the memory of the subscribing
witnesses, or other casualty they may still be proved. (Thompson on Wills, 2nd ed., Sec. 132;
Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the
trial court gave undue importance to the picture-takings as proof that the win was improperly
executed, We agree with the reasoning of the respondent court that: "Matilde Orobia's
Identification of the photographer as "Cesar Mendoza", contrary to what the other two witnesses
(Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra,
Jr., is at worst a minor mistake attributable to lapse of time. The law does not require a
photographer for the execution and attestation of the will. The fact that Miss Orobia mistakenly
Identified the photographer as Cesar Mendoza scarcely detracts from her testimony that she was
present when the will was signed because what matters here is not the photographer but the
photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso
Gimpaya. " Further, the respondent Court correctly held: "The trial court gave undue importance
to the picture takings, jumping therefrom to the conclusion that the will was improperly executed.
The evidence however, heavily points to only one occasion of the execution of the will on April
15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These
witnesses were quite emphatic and positive when they spoke of this occasion. Hence, their
Identification of some photographs wherein they all appeared along with Isabel Gabriel and Atty.
Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was
disclosed at the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as
a reenactment of the first incident upon the insistence of Isabel Gabriel. Such reenactment
where Matilde Orobia was admittedly no longer present was wholly unnecessary if not pointless.
What was important was that the will was duly executed and witnessed on the first occasion on
April 15, 1961 , " and We agree with the Court's rationalization in conformity with logic, law and
jurisprudence which do not require picture-taking as one of the legal requisites for the execution
or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses
in their respective testimonies before the trial court. On the other hand, the respondent Court of
Appeals held that said contradictions, evasions and misrepresentations had been explained
away. Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he
described as "elite" which to him meant big letters which are of the type in which the will was
typewritten but which was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in
mentioning the name of the photographer by Matilde Orobia to be Cesar Mendoza when actually
it was Benjamin Cifra, Jr.— these are indeed unimportant details which could have been affected
by the lapse of time and the treachery of human memory such that by themselves would not alter
the probative value of their testimonies on the true execution of the will, (Pascual vs. dela Cruz,
28 SCRA 421, 424) for it cannot be expected that the testimony of every person win be Identical
and coinciding with each other with regard to details of an incident and that witnesses are not
expected to remember all details. Human experience teach us "that contradictions of witnesses
generally occur in the details of certain incidents, after a long series of questionings, and far from
being an evidence of falsehood constitute a demonstration of good faith. In as much as not all
those who witness an incident are impressed in like manner, it is but natural that in relating their
impressions, they should not agree in the minor details; hence the contradictions in their
testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been
disturbed by the respondent appellate court because the trial court was in a better position to
weigh and evaluate the evidence presented in the course of the trial. As a general rule, petitioner
is correct but it is subject to well-established exceptions. The right of the Court of Appeals to
review, alter and reverse the findings of the trial court where the appellate court, in reviewing the
evidence has found that facts and circumstances of weight and influence have been ignored and
overlooked and the significance of which have been misinterpreted by the trial court, cannot be
disputed. Findings of facts made by trial courts particularly when they are based on conflicting
evidence whose evaluation hinges on questions of credibility of contending witnesses hes
peculiarly within the province of trial courts and generally, the appellate court should not interfere
with the same. In the instant case, however, the Court of Appeals found that the trial court had
overlooked and misinterpreted the facts and circumstances established in the record. Whereas
the appellate court said that "Nothing in the record supports the trial court's unbelief that Isabel
Gabriel dictated her will without any note or document to Atty. Paraiso;" that the trial court's
conclusion that Matilde Orobia could not have witnessed anybody signing the alleged will or that
she could not have witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she
witnessed only the deceased signing it, is a conclusion based not on facts but on inferences; that
the trial court gave undue importance to the picture-takings, jumping therefrom to the conclusion
that the will was improperly executed and that there is nothing in the entire record to support the
conclusion of the court a quo that the will signing occasion was a mere coincidence and that
Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing of her will,
then it becomes the duty of the appellate court to reverse findings of fact of the trial court in the
exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the
Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court.
Again We agree with the petitioner that among the exceptions are: (1) when the conclusion is a
finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is
manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4)
when the presence of each other as required by law. " Specifically, We affirm that on April 15,
1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife
Maria Gimpaya, and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at
the Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel Gabriel
obtained a medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon
arriving at the latter's office and told the lawyer that she wanted her will to be made; that Atty.
Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and the attorney
wrote down the dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her;
that Atty. Paraiso read back to her what he wrote as dictated and she affirmed their correctness;
the lawyer then typed the will and after finishing the document, he read it to her and she told him
that it was alright; that thereafter, Isabel Gabriel signed her name at the end of the will in the
presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at
the left-hand margin of each and every page of the document in the presence also of the said
three witnesses; that thereafter Matilde Orobia attested the will by signing her name at the end of
the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the
presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya;
then, Celso Gimpaya signed also the will at the bottom of the attestation clause and at the left-
hand margin of the other pages of the document in the presence of Isabel Gabriel, Matilde
Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the
attestation clause and at the left-hand margin of every page in the presence of Isabel Gabriel,
Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No.
94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the execution and
attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde Orobia,
the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing
testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a
Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of
the three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on
April 15, 1961. Atty. Paraiso's claim which was not controverted that he wrote down in his own
hand the date appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared
and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel
Gabriel could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as
against the contention of petitioner that it was incredible. This ruling of the respondent court is
fully supported by the evidence on record as stated in the decision under review, thus: "Nothing
in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any
note or document to Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly
testified that Isabel Gabriel dictated her will to Atty. Paraiso and that other than the piece of
paper that she handed to said lawyer she had no note or document. This fact jibes with the
evidence — which the trial court itself believed was unshaken — that Isabel Gabriel was of
sound disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The
first was Isabel Gabriel's wish to be interred according to Catholic rites the second was a general
directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel
Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her
13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each
legatee the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal
heir mentioning in general terms seven (7) types of properties; the sixth disposed of the
remainder of her estate which she willed in favor of appellant Lutgarda Santiago but prohibiting
the sale of such properties to anyone except in extreme situations in which judgment is based on
a misapprehension of facts; (5) when the findings of fact are conflicting, (6) when the Court of
Appeals, in making its findings, went beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct.
31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs.
City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent
appellate court are fully supported by the evidence on record. The conclusions are fully
sustained by substantial evidence. We find no abuse of discretion and We discern no
misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence, the
well-established rule that the decision of the Court of Appeals and its findings of fact are binding
and conclusive and should not be disturbed by this Tribunal and it must be applied in the case at
bar in its full force and effect, without qualification or reservation. The above holding simply
synthesize the resolutions we have heretofore made in respect ' to petitioner's previous
assignments of error and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and
usual course of judicial proceedings as to call for the exercise of the power of supervision by the
Supreme Court, and as We find that the Court of Appeals did not err in reversing the decision of
the trial court and admitting to probate Exhibit "F", the last will and testament of the deceased
Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the
evidence on record is unassailable that: "From the welter of evidence presented, we are
convinced that the will in question was executed on April 15, 1961 in the presence of Matilde
Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the the will on a
table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty.
Paraiso, after finishing the notarial act, then delivered the original to Isabel Gabriel and retained
the other copies for his file and notarial register. A few days following the signing of the will,
Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of Atty. Paraiso
and told the lawyer that she wanted another picture taken because the first picture did not turn
out good. The lawyer told her that this cannot be done because the will was already signed but
Isabel Gabriel insisted that a picture be taken, so a simulated signing was performed during
which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the
witnesses for the proponent of the will, their alleged evasions, inconsistencies and
contradictions. But in the case at bar, the three instrumental witnesses who constitute the best
evidence of the will making have testified in favor of the probate of the will. So has the lawyer
who prepared it, one learned in the law and long in the practice thereof, who thereafter notarized
it. All of them are disinterested witnesses who stand to receive no benefit from the testament.
The signatures of the witnesses and the testatrix have been identified on the will and there is no
claim whatsoever and by anyone, much less the petitioner, that they were not genuine. In the
last and final analysis, the herein conflict is factual and we go back to the rule that the Supreme
Court cannot review and revise the findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby
AFFIRMED, with costs against the petitioner.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 17857 June 12, 1922
In re will of Josefa Zalamea y Abella, deceased.
PEDRO UNSON, petitioner-appellee,
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.
Crispin Oben for appellants.
Pedro Guevarra and Carlos Ledesma for appellee.
VILLAMOR, J.:
On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60 years old, who was residing in the
municipality of Pagsanjan, Province of Laguna, executed her last will and testament with an
attached inventory of her properties, Exhibits A and A-1, in the presence of three witnesses, who
signed with her all the pages of said documents. The testatrix died on the 6th of January, 1921,
and, as the record shows, the executor appointed in the will, Pedro Unson, filed in the court of
First Instance of Laguna on the 19th of January of the same year an application for the probate
of the will and the issuance of the proper letters of administration in his favor.
To said application an opposition was presently by Antonio Abella, Ignacia Abella, Avicencia
Abella, and Santiago Vito, alleging that the supposed will of the deceased Zalamea was not
executed in conformity with the provinces of the law, inasmuch as it was not paged correlatively
in letters, nor was there any attestation clause in it, nor was it signed by the testatrix and the
witnesses in the presence of each other.
Trial having been held, the judge a quo overruled the opposition of the contestants, and ordered
the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that both documents
contained the true and last will of the deceased Josefa Zalamea.
From the judgment of the court below, the contestants have appealed, and in their brief they
assign three errors, which, in their opinion, justify the reversal of the judgment appealed from.
The first error assigned by the appellants as committed by the court below is its finding to the
effect that Exhibit A, said to be the will of the deceased Josefa Zalamea, was executed with all
the solemnities required by the law.
The arguments advanced by appellants' counsel in support of the first assignment of error tend
to impeach the credibility of the witnesses for the proponent, specially that of Eugenio Zalamea.
We have made a careful examination of the evidence, but have not found anything that would
justify us in disturbing the finding of the court a quo. The attesting witnesses, Eugenio Zalamea
and Gonzalo Abaya, clearly testify that together with the other witness to the will, Pedro de
Jesus, they did sign each and every page of the will and of the inventory in the presence of each
other and of the testatrix, as the latter did likewise sign all the pages of the will and of the
inventory in their presence.
In their brief the appellants intimate that one of the pages of the will was not signed by the
testatrix, nor by the witnesses on the day of the execution of the will, that is, on the 19th of July,
1918, basing their contention on the testimony of Aurelio Palileo, who says that on one occasion
Gonzalo Abaya told him that one of the pages of the will had not been signed by the witnesses,
nor by the testatrix on the day of its execution. Palileo's testimony is entirely contradicted by
Gonzalo Abaya not only in the direct, but in the rebuttal, evidence as well. To our mind, Palileo's
testimony cannot prevail over that of the attesting witnesses, Gonzalo Avaya and Eugenio
Zalamea. The appellants impeach the credibility of Eugenio Zalamea, for having made a sworn
declaration before the justice of the peace of Santa Cruz, Laguna, before the trial of this case, to
the effect that he was really one of the witnesses to the will in question, which fact was
corroborated by himself at the trial. The appellants take Zalamea's testimony in connection with
the dismissal of a criminal case against a nephew of his, in whose success he was interested,
and infer from this fact the partiality of his testimony. We deem this allegation of little importance
to impeach the credibility of the witness Zalamea, especially because his testimony is
corroborated by the other attesting witness. Gonzalo Abaya, and by attorney Luis Abaya, who
had prepared the testament at the instance of the testatrix. The foregoing is sufficient for us to
conclude that the first assignment of error made by the appellants is groundless.
The appellants contend that the court below erred in admitting the will to probate notwithstanding
the omission of the proponent to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent stated to the court that they had
necessarily to omit the testimony of Pedro de Jesus, one of the persons who appear to have
witnessed the execution of the will, for there were reasonable grounds to believe that said
witness was openly hostile to the proponent, inasmuch as since the announcement of the trial of
the petition for the probate of the will, said witness has been in frequent communication with the
contestants and their attorney, and has refused to hold any conference with the attorneys for the
proponent. In reply to this, the attorney for the contestants, said to the court, "without discussing
for the present whether or not in view of those facts (the facts mentioned by the attorneys for the
petitioner), in the hypothesis that the same are proven, they are relieved from producing that
witness, for while it is a matter not decided, it is a recognized rule that the fact that a witness is
hostile does not justify a party to omit his testimony; without discussing this, I say, I move that
said statement be stricken out, and if the proponent wants these facts to stand to stand in the
record, let him prove them." The court a quo ruled, saying, "there is no need."
To this ruling of the court, the attorney for the appellants did not take any exception.
In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided by this court, in
deciding the question whether a will can be admitted to probate, where opposition is made, upon
the proof of a single attesting witness, without producing or accounting for the absence of the
other two, it was said; "while it is undoubtedly true that an uncontested will may be proved by the
testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34
Phil., 291), this court declared after an elaborate examination of the American and English
authorities that when a contest is instituted, all of the attesting witnesses must be examined, if
alive and within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three of the
attesting witnesses were not produced, but the probable reason is found in the fact that,
although the petition for the probate of this will had been pending from December 21,
1917, until the date set for the hearing, which was April 5, 1919, no formal contest was
entered until the very day set for the hearing; and it is probable that the attorney for the •
proponent, believing in good faith that probate would not be contested, repaired to the
court with only one of the three attesting witnesses at hand, and upon finding that the will
was contested, incautiously permitted the case to go to proof without asking for a
postponement of the trial in order that he might produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not produced, it
does not in itself supply any basis for changing the rule expounded in the case above
referred to; and were it not for a fact now to be mentioned, this court would probably be
compelled to reverse this case on the ground that the execution of the will had not been
proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lower court
either upon the submission of the cause for determination in that court or upon the
occasion of the filing of the motion for a new trial. Accordingly it is insisted for the
appellee that this question cannot now be raised for t he first time in this court. We
believe this point is well taken, and the first assignment of error must be declared not to
be well taken. This exact question has been decided by the Supreme Court of California
adversely to the contention of the appellant, and we see no reason why the same rule of
practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reasons why the appellate tribunals are disinclined to permit
certain questions to be raised for the first time in the second instance. In the first place it
eliminates the judicial criterion of the Court of First Instance upon the point there
presented and makes the appellate court in effect a court of first instance with reference
to that point, unless the case is remanded for a new trial. In the second place, it permits,
if it does not encourage, attorneys to trifle with the administration of justice by concealing
from the trial court and from their opponent the actual point upon which reliance is
placed, while they are engaged in other discussions more simulated than real. These
considerations are, we think, decisive.
In ruling upon the point above presented we do not wish to be understood as laying
down any hard and fast rule that would prove an embarrassment to this court in the
administration of justice in the future. In one way or another we are constantly here
considering aspects of cases and applying doctrines which have escaped the attention of
all persons concerned in the litigation below; and this is necessary if this court is to
contribute the part due from it in the correct decision of the cases brought before it. What
we mean to declare is that when we believe that substantial justice has been done in the
Court of First Instance, and the point relied on for reversal in this court appears to be one
which ought properly to have been presented in that court, we will in the exercise of a
sound discretion ignore such question upon appeal; and this is the more proper when the
question relates to a defect which might have been cured in the Court of First Instance if
attention had been called to it there. In the present case, if the appellant had raised this
question in the lower court, either at the hearing or upon a motion for a new trial, that
court would have had the power, and it would have been its duty, considering the tardy
institution of the contest, to have granted a new trial in order that all the witnesses to the
will might be brought into court. But instead of thus calling the error to the attention of the
court and his adversary, the point is first raised by the appellant in this court. We hold
that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing
inconsistent with the ruling we now make, for it appears from the opinion in that case that
the proponent of the will had obtained an order for a republication and new trial for the
avowed purpose of presenting the two additional attesting witnesses who had not been
previously examined, but nevertheless subsequently failed without any apparent reason
to take their testimony. Both parties in that case were therefore fully apprised that the
question of the number of witnesses necessar to prove the will was in issue in the lower
court.
In the case at bar, we do not think this question properly to have been raised at the trial, but in
the memorandum submitted by the attorney for the appellants to the trial court, he contended
that the will could not be admitted to probate because one of the witnesses to the will was not
produced, and that the voluntary non-production of this witness raises a presumption against the
pretension of the proponent. The trial court found that the evidence introduced by the proponent,
consisting of the testimony of the two attesting witnesses and the other witness who was present
at the execution, and had charge of the preparation of the will and the inventory, Exhibits A and
A-1, was sufficient. As announced in Cabang vs. Delfinado, supra, the general rule is that, where
opposition is made to the probate of a will, the attesting witnesses must be produced. But there
are exceptions to this rule, for instance, when a witness is dead, or cannot be served with
process of the court, or his reputation for truth has been questioned or he appears hostile to the
cause of the proponent. In such cases, the will may be admitted to probate without the testimony
of said witness, if, upon the other proofs adduced in the case, the court is satisfied that the will
has been duly executed. Wherefore, we find that the non-production of the attesting witness,
Pedro de Jesus, as accounted for by the attorney for the proponent at the trial, does not render
void the decree of the court a quo, allowing the probate.
But supposing that said witness, when cited, had testified adversely to the application, this would
not by itself have change the result reached by the court a quo, for section 632 of the Code of
Civil Procedure provides that a will can be admitted to probate, notwithstanding that one or more
witnesses do not remember having attested it, provided the court is satisfied upon the evidence
adduced that the will has been executed and signed in the manner prescribed by the law.
The last error assigned by the appellants is made to consist in the probate of the inventory,
Exhibit A-1, despite the fact that this exhibit has no attestation clause in it, and its paging is made
in Arabic numerals and not in letters.
In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the
bottom of said will, the testatrix Josefa Zalamea says:
In witness whereof, I sign this will composed of ten folios including the page containing
the signatures and the attestation of the witnesses; I have likewise signed the inventory
attached to this will composed of ten folios in the presence of Messrs. Gonzalo Abaya,
Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan, Laguna, Philippine
Islands, this 19th of July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one whereunto we have affixed
our signatures, as well as the inventory of the properties of Doña Josefa Zalamea y
Abella, was read to Doña Josefa Zalamea y Abella, and the latter affixed her name to the
last, and each and every page of this will and inventory composed of ten folios in our
presence; and she declared this to be her last will and testament and at her request we
have affixed hereunto our respective signatures in her presence and in the presence of
each other as witnesses to the will and the inventory this 19th of July, 1918, at
Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
In view of the fact that the inventory is referred to in the will as an integral part of it, we find that
the foregoing attestation clause is in compliance with section 1 of Act No. 2645, which requires
this solemnity for the validity of a will, and makes unnecessary any other attestation clause at the
end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine
announced in the case of Aldaba vs. Roque (p. 378, ante), recently decided by this court. In that
case the validity of the will was assailed on the ground that its folios were paged with the letters
A, B, C, etc., instead of with the letters "one," two," "three," etc. It was held that this way of
numbering the pages of a will is in compliance with the spirit of the law, inasmuch as either one
of these methods indicates the correlation of the pages and serves to prevent the abstraction of
any of them. In the course of the decision, we said: "It might be said that the object of the law in
requiring that the paging be made in letters is to make falsification more difficult, but it should be
noted that since all the pages of the testament are signed at the margin by the testatrix and the
witnesses, the difficulty of forging the signatures in either case remains the same. In other words
the more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make
for the easiness to forge the signatures. And as in the present case there exists the guaranty of
the authenticity of the testament, consisting in the signatures on the left margins of the testament
and the paging thereof as declared in the attestation clause, the holding of this court in Abangan
vs. Abangan (40 Phil., 476), might as well be repeated:
"The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore the laws on this subject should be interpreted in
such a way as to attain these primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise
of the right to make a will. So when an interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless, and frustrative of the testator's
last will, must be disregarded."
In that case the testament was written on one page, and the attestation clause on another.
Neither one of these pages was numbered in any way, and it was held: "In a will consisting of
two sheets the first of which contains all the testamentary dispositions and is signed at the
bottom by the testator and three witnesses, and the second contains only the attestation clause
and is signed also at the bottom by the three witnesses it is not necessary that both sheets be
further signed on their margins by the testator and the witnesses, or be paged."
This means that, according to the particular case, the emission of paging does not necessarily
render the testament invalid.
The law provides that the numbering of the pages should be in letters placed on the upper part of
the sheet, but if the paging should be placed in the lower part, would the testament be void for
this sole reason? We believe not. The law also provides that the testator and the witnesses must
sign the left margin of each of the sheets of the testament; but if they should sign on the right
margin, would this fact also annul the testament? Evidently not. This court has already held
in Avera vs. Garcia and Rodriguez (42 Phi., 145):
"It is true that the statute says that the testator and the instrumental witnesses shall sign
their names on the left margin of each and every page; and it is undeniable that the
general doctrine is to the effect that all statutory requirements as to the execution of wills
must be fully complied with. The same execution for wills must be fully complied with.
The same doctrine is also deducible from cases heretofore decided by this court."
"Still some details at time creep into legislative enactments which are so trivial that it
would be absurd to suppose that the Legislature could have attached any decisive
importance to them. The provision to the effect that the signatures of the testator and
witnesses shall be written on the left margin of each page — rather than on the margin
— seems to be of this character. So far as concerns the authentication of the will, and of
 every part thereof, it can make no possible difference whether the names appear on the
left or on the right margin, provided they are on one or the other. In Craig vs. Tatlonghari
(G. R. No. 12558, decided March 23, 1918, not reported), this court declared a will void
which was totally lacking in the signatures required to be written on its several pages;
and in the case of Re Estate of Saguinsin (41 Phil., 875) a will was likewise declared void
which contained the necessary signatures on the margin of each leaf (folio), but not in
the margin of each page containing written matter."
We do not desire to intimate that the numbering in letters is a requisite of no importance. But
since its principal object is to give the correlation of the pages, we hold that his object may be
attained by writing one, two, three, etc., as well as by writing A, B, C, etc.
We see no reason why the same rule should not be applied where the paging is in Arabic
numerals, instead of in letters, as in the inventory in question. So that, adhering to the view taken
by this court in the case of Abangan vs. Abangan, and followed in Aldava vs. Roque, with regard
to the appreciation of the solemnities of a will, we find that the judgement appealed from should
be, as is hereby, affirmed with the costs against the appellants. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,
CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF
MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and involving
the same parties had already been decided by us in the past. In G.R. No. L-30479, 1 which was a petition for certiorari and mandamus
instituted by the petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the petitioners is a separate
proceeding for the probate of the will in question. Pursuant to the said ruling, the petitioners commenced in the then Court of First
Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed by the private respondents
presently, Panfilo and Felino both surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the
dismissal, again, the petitioners came to this Court on a petition for review by certiorari. 2 Acting on the said petition, we set aside the
trial court's order and directed it to proceed to hear the case on the merits. The trial court, after hearing, found the will to have already
been revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The petitioners appealed the trial court's decision to the
Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The petitioners' motion for reconsideration of the adverse
decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the
petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents Panfilo
Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and
testament, these four heirs commenced on November 4, 1963 an intestate proceeding for the
settlement of their aunt's estate. The case was instituted in the then Court of First Instance of
Iloilo and was docketed as Special Proceeding No. 1736. However, while the case was still in
progress, or to be exact on February 1, 1964, the parties — Aldina, Constancio, Panfilo, and
Felino — executed an agreement of extrajudicial settlement of Adriana's estate. The agreement
provided for the division of the estate into four equal parts among the parties. The Malotos then
presented the extrajudicial settlement agreement to the trial court for approval which the court
did on March 21, 1964. That should have signalled the end of the controversy, but, unfortunately,
it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of
Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN
NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will
and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy,
while he was going through some materials inside the cabinet drawer formerly used by Atty.
Hervas. The document was submitted to the office of the clerk of the Court of First Instance of
Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said
will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate
of Adriana than what they received by virtue of the agreement of extrajudicial settlement they
had earlier signed. The will likewise gives devises and legacies to other parties, among them
being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion
Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees
named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of the will When the trial court
denied their motion, the petitioner came to us by way of a petition for certiorari and mandamus
assailing the orders of the trial court . 3 As we stated earlier, we dismissed that petition and
advised that a separate proceeding for the probate of the alleged will would be the appropriate
vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the
document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de
Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the
will had been revoked. The respondent court stated that the presence of animus revocandi in the
destruction of the will had, nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in Adriana's residence, by the
testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's
possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up.
For reasons shortly to be explained, we do not view such facts, even considered collectively, as
sufficient bases for the conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the
will. The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence, and
by his express direction. If burned, torn cancelled, or obliterated by some other
person, without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court. (Emphasis
Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per se
constitute an effective revocation, unless the destruction is coupled with animus revocandi on the
part of the testator. It is not imperative that the physical destruction be done by the testator
himself. It may be performed by another person but under theexpress direction and in
the presence of the testator. Of course, it goes without saying that the document destroyed must
be the will itself.
In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a
state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the
necessary elements for the effective revocation of a last will and testament. The intention to
revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his presence and under his
express direction. There is paucity of evidence to show compliance with these requirements. For
one, the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana Maloto. For another, the burning was
not proven to have been done under the express direction of Adriana. And then, the burning was
not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were
the only ones present at the place where the stove (presumably in the kitchen) was located in
which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private respondents
as oppositors in the trial court, concluded that the testimony of the two witnesses who testified in
favor of the will's revocation appear "inconclusive." We share the same view. Nowhere in the
records before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio
Itchon, both illiterates, were unequivocably positive that the document burned was indeed
Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the will only
because, according to her, Adriana told her so. Eladio, on the other hand, obtained his
information that the burned document was the will because Guadalupe told him so, thus, his
testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win
is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its very foundations ...."4
The private respondents in their bid for the dismissal of the present action for probate instituted
by the petitioners argue that the same is already barred by res adjudicata. They claim that this
bar was brought about by the petitioners' failure to appeal timely from the order dated November
16, 1968 of the trial court in the intestate proceeding (Special Proceeding No. 1736) denying
their (petitioners') motion to reopen the case, and their prayer to annul the previous proceedings
therein and to allow the last will and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment to
be a bar to a subsequent case, the following requisites must concur: (1) the presence of a final
former judgment; (2) the former judgment was rendered by a court having jurisdiction over the
subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there
is, between the first and the second action, Identity of parties, of subject matter, and of cause of
action. 5 We do not find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of
Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding No.
1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that
judgment could not in any manner be construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action
for probate. This is understandably so because the trial court, in the intestate proceeding, was
without jurisdiction to rule on the probate of the contested will . 6 After all, an action for probate,
as it implies, is founded on the presence of a will and with the objective of proving its due
execution and validity, something which can not be properly done in an intestate settlement of
estate proceeding which is predicated on the assumption that the decedent left no will. Thus,
there is likewise no Identity between the cause of action in intestate proceeding and that in an
action for probate. Be that as it may, it would be remembered that it was precisely because of
our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate
of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the fact
that "(a) major and substantial bulk of the properties mentioned in the will had been disposed of:
while an insignificant portion of the properties remained at the time of death (of the testatrix);
and, furthermore, more valuable properties have been acquired after the execution of the will on
January 3,1940." 7 Suffice it to state here that as these additional matters raised by the private
respondents are extraneous to this special proceeding, they could only be appropriately taken up
after the will has been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision
dated June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of
Appeals, and a new one ENTERED for the allowance of Adriana Maloto's last will and testament.
Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2538 September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the
last will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918.
The oppositors-appellants brought the case on appeal to this Court for the reason that the value
of the properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of
Rizal, without leaving any forced heir either in the descending or ascending line. He was
survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces
and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were
the legitimate children of Candido Molo y Legaspi, deceased brother of the testator. Mariano
Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another
executed on June 20, 1939. (Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a
petition, which was docketed as special proceeding No. 8022 seeking the probate of the will
executed by the deceased on June 20, 1939. There being no opposition, the will was probated.
However, upon petition filed by the herein oppositors, the order of the court admitting the will to
probate was set aside and the case was reopened. After hearing, at which both parties
presented their evidence, the court rendered decision denying the probate of said will on the
ground that the petitioner failed to prove that the same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on February 24,
1944, filed another petition for the probate of the will executed by the deceased on August 17,
1918, which was docketed as special proceeding No. 56, in the same court. Again, the same
oppositors filed an opposition to the petition based on three grounds: (1) that petitioner is now
estopped from seeking the probate of the will of 1918; (2) that said will has not been executed in
the manner required by law and (3) that the will has been subsequently revoked. But before the
second petition could be heard, the battle for liberation came and the records of the case were
destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be
impossible because neither petitioner nor oppositors could produce the copies required for its
reconstitution. As a result, petitioner filed a new petition on September 14, 1946, similar to the
one destroyed, to which the oppositors filed an opposition based on the same grounds as those
contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the
court issued an order admitting the will to probate already stated in the early part of this decision.
From this order the oppositors appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in special proceeding
No. 8022, in order to enable her to obtain the probate of another alleged will of Molo
dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped from seeking
the probate of Molo's alleged will of 1918.
 III. The lower court erred in not holding that petitioner herein has come to court with
"unclean hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was
not executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918 was deliberately
revoked by Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was subsequently
revoked by the decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate court erred in
not holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated
June 20, 1939, in order to enable her to obtain the probate of the will executed by the deceased
on August 17, 1918, pointing out certain facts and circumstances with their opinion indicate that
petitioner connived with the witness Canuto Perez in an effort to defeat and frustrate the probate
of the 1939 will because of her knowledge that said will intrinsically defective in that "the one and
only testamentory disposition thereof was a "disposicion captatoria". These circumstances,
counsel for the appellants contend, constitute a series of steps deliberately taken by petitioner
with a view to insuring the realization of her plan of securing the probate of the 1918 will which
she believed would better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with special
proceedings No. 8022, now closed and terminated, are vigorously met by counsel for petitioner
who contends that to raise them in these proceedings which are entirely new and distinct and
completely independent from the other is improper and unfair as they find no support whatsoever
in any evidence submitted by the parties in this case. They are merely based on the
presumptions and conjectures not supported by any proof. For this reason, counsel, contends,
the lower court was justified in disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this contention.
There is indeed no evidence which may justify the insinuation that petitioner had deliberately
intended to frustrate the probate of the 1939 will of the deceased to enable her to seek the
probate of another will other than a mere conjecture drawn from the apparently unexpected
testimony of Canuto Perez that he went out of the room to answer an urgent call of nature when
Artemio Reyes was signing the will and the failure of petitioner later to impeach the character of
said witness in spite of the opportunity given her by the court to do so. Apart from this
insufficiency of evidence, the record discloses that this failure has been explained by petitioner
when she informed the court that she was unable to impeach the character of her witness
Canuto Perez because of her inability to find witnesses who may impeach him, and this
explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now,
for us to determine. It is an incident that comes within the province of the former case. The
failure of petitioner to present the testimony of Artemio Reyes at the hearing has also been
explained, and it appears that petitioner has filed because his whereabouts could not be found.
Whether this is true or not is also for this Court to determine. It is likewise within the province and
function of the court in the former case. And the unfairness of this imputation becomes more
glaring when we stock of the developments that had taken place in these proceedings which
show in bold relief the true nature of the conduct, behavior and character of the petitioner so
bitterly assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20, 1939,
was filed on February 7, 1941, by the petitioner. There being no opposition, the will was
probated. Subsequently, however, upon petition of the herein oppositors, the order of the court
admitting said will to probate was set aside, over the vigorous opposition of the herein petitioner,
and the case was reopened. The reopening was ordered because of the strong opposition of the
oppositors who contended that he will had not been executed as required by law. After the
evidence of both parties had been presented, the oppositors filed an extensive memorandum
wherein they reiterated their view that the will should be denied probate. And on the strenght of
this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make the
testamentary disposition in her favor invalid and ineffective, because it is a "disposicion
captatoria", which knowledge she may easily acquire through consultation with a lawyer, there
was no need her to go through the order of filing the petition for the probate of the will. She could
accomplish her desire by merely suppressing the will or tearing or destroying it, and then take
steps leading to the probate of the will executed in 1918. But for her conscience was clear and
bade her to take the only proper step possible under the circumstances, which is to institute the
necessary proceedings for the probate of the 1939 will. This she did and the will was admitted to
probate. But then the unexpected happened. Over her vigorous opposition, the herein appellants
filed a petition for reopening, and over her vigorous objection, the same was granted and the
case was reopened. Her motion for reconsideration was denied. Is it her fault that the case was
reopened? Is it her fault that the order admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants not filed their opposition to the
probate of the will and had they limited their objection to the intrinsic validity of said will, their
plan to defeat the will and secure the intestacy of the deceased would have perhaps been
accomplished. But they failed in their strategy. If said will was denied probate it is due to their
own effort. It is now unfair to impute bad faith petitioner simply because she exerted every effort
to protect her own interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the second
and third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be
considered guilty or estoppel which would prevent her from seeking the probate of the 1918 will
simply because of her effort to obtain the allowance of the 1939 will has failed considering that in
both the 1918 and 1939 wills she was in by her husband as his universal heir. Nor can she be
charged with bad faith far having done so because of her desire to prevent the intestacy of her
husband. She cannot be blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will of the
deceased which was denied probate. They contend that, notwithstanding the disallowance of
said will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case
of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all
fours with the facts of this case. Hence, the doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson case
we are indeed impressed by their striking similarity with the facts of this case. We do not need to
recite here what those facts are; it is enough to point out that they contain many points and
circumstances in common. No reason, therefore, is seen by the doctrine laid down in that case
(which we quote hereunder) should not apply and control the present case.
A subsequent will, containing a clause revoking a previous will, having been disallowed,
for the reason that it was not executed in conformity with the provisions of section 618 of
the Code of Civil Procedure as to the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not
disagree with the soundness of the ruling laid down in the Samson case, there is reason to
abandon said ruling because it is archaic or antiquated and runs counter to the modern trend
prevailing in American jurisprudence. They maintain that said ruling is no longer controlling but
merely represents the point of view of the minority and should, therefore, be abandoned, more
so if we consider the fact that section 623 of our Code of Civil Procedure, which governs the
revocation of wills, is of American origin and as such should follow the prevailing trend of the
majority view in the United States. A long line of authorities is cited in support of this contention.
And these authorities hold the view, that "an express revocation is immediately effective upon
the execution of the subsequent will, and does not require that it first undergo the formality of a
probate proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors, and
that view appears to be in controlling the states where the decisions had been promulgated,
however, we are reluctant to fall in line with the assertion that is now the prevailing view in the
United States. In the search we have made of American authorities on the subject, we found
ourselves in a pool of conflicting opinions perhaps because of the peculiar provisions contained
in the statutes adopted by each State in the subject of revocation of wills. But the impression we
gathered from a review and the study of the pertinent authorities is that the doctrine laid down in
the Samson case is still a good law. On page 328 of the American Jurisprudence Vol. 57, which
is a revision Published in 1948, we found the following passages which in our opinion truly reflect
the present trend of American jurisprudence on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes
which permit the revocation of a will by another writing provide that to be effective as a
revocation, the writing must be executed with the same formalities which are required to
be observed in the execution of a will. Accordingly, where, under the statutes, attestation
is necessary to the making of a valid will, an unattested non testamentary writing is not
effective to revoke a prior will. It has been held that a writing fails as a revoking
instrument where it is not executed with the formalities requisite for the execution of a
will, even though it is inscribed on the will itself, although it may effect a revocation by
cancellation or obliteration of the words of the will. A testator cannot reserve to himself
the power to modify a will by a written instrument subsequently prepared but not
executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which
is invalid because of the incapacity of the testator, or of undue influence can have no
effect whatever as a revoking will. Moreover, a will is not revoked by the unexecuted
draft of a later one. Nor is a will revoked by a defectively executed will or codicil, even
though the latter contains a clause expressly revoking the former will, in a jurisdiction
where it is provided by a controlling statute that no writing other than a testamentary
instrument is sufficient to revoke a will, for the simple reason that there is no revoking
will. Similarly where the statute provides that a will may be revoked by a subsequent will
or other writing executed with the same formalities as are required in the execution of
wills, a defectively executed will does not revoke a prior will, since it cannot be said that
there is a writing which complies with the statute. Moreover, a will or codicil which, on
account of the manner in which it is executed, is sufficient to pass only personally does
not affect dispositions of real estate made by a former will, even though it may expressly
purport to do so. The intent of the testator to revoke is immaterial, if he has not complied
with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page
1400, Volume 123, there appear many authorities on the "application of rules where second will
is invalid", among which a typical one is the following:
It is universally agreed that where the second will is invalid on account of not being
executed in accordance with the provisions of the statute, or where the testator who has
not sufficient mental capacity to make a will or the will is procured through undue
influence, or the such, in other words, where the second will is really no will, it does not
revoke the first will or affect it in any manner. Mort vs. Baker University (193-5) 229 Mo.
App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson
case is predicated. They reflect the opinion that this ruling is sound and good and for this reason,
we see no justification for abondoning it as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be
some will, codicil, or other writing executed as proved in case of wills" but it cannot be said that
the 1939 will should be regarded, not as a will within the meaning of said word, but as "other
writing executed as provided in the case of wills", simply because it was denied probate. And
even if it be regarded as any other writing within the meaning of said clause, there is authority for
holding that unless said writing is admitted to probate, it cannot have the effect of revocation.
(See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause, said will of
1918 cannot still be given effect because of the presumption that it was deliberately revoked by
the testator himself. The oppositors contend that the testator, after executing the 1939 will, and
with full knowledge of the recovatory clause contained said will, himself deliberately destroyed
the original of the 1918 will, and for that reason the will submitted by petitioner for probate in
these proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately destroyed the
original of the 1918 will because of his knowledge of the revocatory clause contained in the will
he executed in 1939. The only evidence we have is that when the first will was executed in 1918,
Juan Salcedo, who prepared it, gave the original and copies to the testator himself and
apparently they remained in his possession until he executed his second will in 1939. And when
the 1939 will was denied probate on November 29, 1943, and petitioner was asked by her
attorney to look for another will, she found the duplicate copy (Exhibit A) among the papers or
files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his
knowledge of the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy
thereof to his wife, the herein petitioner, the most logical step for the testator to take is to recall
said duplicate copy in order that it may likewise be destroyed. But this was not done as shown by
the fact that said duplicate copy remained in the possession of petitioner. It is possible that
because of the long lapse of twenty-one (21) years since the first will was executed, the original
of the will had been misplaced or lost, and forgetting that there was a copy, the testator deemed
it wise to execute another will containing exactly the same testamentary dispositions. Whatever
may be the conclusion we may draw from this chain of circumstances, the stubborn fact is that
there is no direct evidence of voluntary or deliberate destruction of the first will by the testator.
This matter cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator
after the execution of the second will, which revoked the first, could there be any doubt, under
this theory, that said earlier will was destroyed by the testator in the honest belief that it was no
longer necessary because he had expressly revoked it in his will of 1939? In other words, can
we not say that the destruction of the earlier will was but the necessary consequence of the
testator's belief that the revocatory clause contained in the subsequent will was valid and the
latter would be given effect? If such is the case, then it is our opinion that the earlier will can still
be admitted to probate under the principle of "dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and is usually applied
where the testator cancels or destroys a will or executes an instrument intended to
revoke a will with a present intention to make a new testamentary disposition as a
substitute for the old, and the new disposition is not made or, if made, fails of effect for
same reason. The doctrine is n limited to the existence of some other document,
however, and has been applied where a will was destroyed as a consequence of a
mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the making of
another will so as fairly to raise the inference that the testator meant the revocation of the
old to depend upon the efficacy of a new disposition intended to be substituted, the
revocation will be conditional and dependent upon the efficacy of the new disposition;
and if, for any reason, the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a new testamentary
disposition upon whose validity the revocation depends, is equivalent to the non-
fulfillment of a suspensive conditions, and hence prevents the revocation of the original
will. But a mere intent to make at some time a will in the place of that destroyed will not
render the destruction conditional. It must appear that the revocation is dependent upon
the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the original will by the
testator could be presumed from the failure of the petitioner to produce it in court, such
destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is
founded on the mistaken belief that the will of 1939 has been validly executed and would be
given due effect. The theory on which this principle is predicated is that the testator did not
intend to die intestate. And this intention is clearly manifest when he executed two wills on two
different occasion and instituted his wife as his universal heir. There can therefore be no mistake
as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to prove the
due execution of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo Morales,
Rufino Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of
the present proceedings. So the only instrumental witness available was Angel Cuenca and
under our law and precedents, his testimony is sufficient to prove the due execution of the will.
However, petitioner presented not only the testimony of Cuenca but placed on the witness stand
Juan Salcedo, the notary public who prepared and notarized the will upon the express desire
and instruction of the testator, The testimony of these witnesses shows that the will had been
executed in the manner required by law. We have read their testimony and we were impressed
by their readiness and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the appellants. 1âwphïl.nêt
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 45629 September 22, 1938
ANTILANO G. MERCADO, petitioner,
vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.
Claro M. Recto and Benigno S. Aquino for petitioner.
Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.
LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition
for the probate of the will of his deceased wife, Ines Basa. Without any opposition, and upon the
testimony of Benigno F. Gabino, one of the attesting witnesses, the probate court, on June
27,1931, admitted the will to probate. Almost three years later, on April 11, 1934, the five
intervenors herein moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the
court to probate the will and to close the proceedings. Because filed ex parte, the motion was
denied. The same motion was filed a second time, but with notice to the adverse party. The
motion was nevertheless denied by the probate court on May 24, 1934. On appeal to this court,
the order of denial was affirmed on July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines
Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of San Fernando,
Pampanga, a complaint against the petitioner herein, for falsification or forgery of the will
probated as above indicated. The petitioner was arrested. He put up a bond in the sum of
P4,000 and engaged the services of an attorney to undertake his defense. Preliminary
investigation of the case was continued twice upon petition of the complainant. The complaint
was finally dismissed, at the instance of the complainant herself, in an order dated December 8,
1932. Three months later, or on March 2, 1933, the same intervenor charged the petitioner for
the second time with the same offense, presenting the complaint this time in the justice of the
peace court of Mexico, Pampanga. The petitioner was again arrested, again put up a bond in the
sum of P4,000, and engaged the services of counsel to defend him. This second complaint, after
investigation, was also dismissed, again at the instance of the complainant herself who alleged
that the petitioner was in poor health. That was on April 27, 1933. Some nine months later, on
February 2, 1934, to be exact, the same intervenor accused the same petitioner for the third time
of the same offense. The information was filed by the provincial fiscal of Pampanga in the justice
of the peace court of Mexico. The petitioner was again arrested, again put up a bond of P4,000,
and engaged the services of defense counsel. The case was dismissed on April 24, 1934, after
due investigation, on the ground that the will alleged to have been falsified had already been
probated and there was no evidence that the petitioner had forged the signature of the testatrix
appearing thereon, but that, on the contrary, the evidence satisfactorily established the
authenticity of the signature aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9,
1934, moved in the Court of First Instance of Pampanga for reinvestigation of the case. The
motion was granted on May 23, 1934, and, for the fourth time, the petitioner was arrested, filed a
bond and engaged the services of counsel to handle his defense. The reinvestigation dragged
on for almost a year until February 18, 1934, when the Court of First Instance ordered that the
case be tried on the merits. The petitioner interposed a demurrer on November 25, 1935, on the
ground that the will alleged to have been forged had already been probated. This demurrer was
overruled on December 24, 1935, whereupon an exception was taken and a motion for
reconsideration and notice of appeal were filed. The motion for reconsideration and the proposed
appeal were denied on January 14, 1936. The case proceeded to trial, and forthwith petitioner
moved to dismiss the case claiming again that the will alleged to have been forged had already
been probated and, further, that the order probating the will is conclusive as to the authenticity
and due execution thereof. The motion was overruled and the petitioner filed with the Court of
Appeals a petition for certiorari with preliminary injunction to enjoin the trial court from further
proceedings in the matter. The injunction was issued and thereafter, on June 19, 1937, the Court
of Appeals denied the petition for certiorari, and dissolved the writ of preliminary injunction.
Three justices dissented in a separate opinion. The case is now before this court for review
on certiorari.
Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal
prosecution for the alleged forgery of the said will; and, (2) that he has been denied the
constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.
SEC. 306. Effect of judgment. — The effect of a judgment or final order in an action or
special proceeding before a court or judge of the Philippine Islands or of the United
States, or of any State or Territory of the United States, having jurisdiction to pronounce
the judgment or order, may be as follows.
1. In case of a judgment or order against a specific thing, or in respect to the probate of a
will, or the administration of the estate of a deceased person, or in respect to the
personal, political, or legal condition or relation of a particular person, the judgment or
order is conclusive upon the title of the thing, the will or administration, or the condition or
 relation of the person Provided, That the probate of a will or granting of letters of
administration shall only be prima facie evidence of the death of the testator or intestate.
xxx xxx xxx
(Emphasis ours.)
Section 625 of the same Code is more explicit as to the conclusiveness of the due execution of a
probate will. It says.
SEC. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall pass
either the real or personal estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of
real and personal estate shall be conclusive as to its due execution. (Emphasis ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:
. . . The decree of probate is conclusive with respect to the due execution thereof and it
cannot be impugned on any of the grounds authorized by law, except that of fraud, in any
separate or independent action or proceeding. Sec. 625, Code of Civil Procedure;
Castañeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De
Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montañano vs. Suesa, 14
Phil., 676; in re Estate of Johnson, 39 Phil, 156; Riera vs. Palmaroli, 40 Phil., 105;
Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong
Jocsoy vs. Vano, 8 Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.
The probate of a will by the probate court having jurisdiction thereof is usually considered
as conclusive as to its due execution and validity, and is also conclusive that the testator
was of sound and disposing mind at the time when he executed the will, and was not
acting under duress, menace, fraud, or undue influence, and that the will is genuine and
not a forgery. (Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was
taken almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the
State relative to the effect of the probate of a will are of persuasive authority in this jurisdiction.
The Vermont statute as to the conclusiveness of the due execution of a probated will reads as
follows.
SEC. 2356. No will shall pass either real or personal estate, unless it is proved and
allowed in the probate court, or by appeal in the county or supreme court; and the
probate of a will of real or personal estate shall be conclusive as to its due execution.
(Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497,
504): "The probate of a will by the probate court having jurisdiction thereof, upon the due notice,
is conclusive as to its due execution against the whole world. (Vt. St., sec. 2336; Fosters
Exrs. vs. Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by
Publication as a prerequisite to the allowance of a will is constructive notice to the whole world,
and when probate is granted, the judgment of the court is binding upon everybody, even against
the State. This court held in the case of Manalo vs. Paredes and Philippine Food Co. (47 Phil.,
938):
The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court
acquires jurisdiction over all the persons interested, through the publication of the notice
prescribed by section 630 of the Code of Civil Procedure, and any order that may be
entered therein is binding against all of them.
Through the publication of the petition for the probate of the will, the court acquires
jurisdiction over all such persons as are interested in said will; and any judgment that
may be rendered after said proceeding is binding against the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.
In this State the probate of a will is a proceeding in rem being in form and substance
upon the will itself to determine its validity. The judgment determines the status of the
instrument, whether it is or is not the will of the testator. When the proper steps required
by law have been taken the judgment is binding upon everybody, and makes the
instrument as to all the world just what the judgment declares it to be.
(Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713, 715; Missionary
Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings before the probate
court are statutory and are not governed by common law rules as to parties or causes of
action. (Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdy vs. Estate of Purdy, 67 Vt.
50, 55; 30 Atl., 695.) No process is issued against anyone in such proceedings, but all
persons interested in determining the state or conditions of the instrument are
constructively notified by the publication of notice as required by G. L. 3219.
(Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)
Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible
presumption in favor of judgments declared by it to be conclusive.
 SEC. 333. Conclusive Presumptions. — The following presumptions or deductions,
which the law expressly directs to be made from particular facts, are deemed conclusive.
xxx xxx xxx
4. The judgment or order of a court, when declared by this code to be conclusive.
Conclusive presumptions are inferences which the law makes so peremptory that it will not allow
them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal Assn.,
80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13
N.Y.S., 311.) The will in question having been probated by a competent court, the law will not
admit any proof to overthrow the legal presumption that it is genuine and not a forgery.
The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion
that "the judgment admitting the will to probate is binding upon the whole world as to the due
execution and genuineness of the will insofar as civil rights and liabilities are concerned, but not
for the purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent, 93 English
Reports, Full Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier
English decisions to the effect that upon indictment for forging a will, the probating of the same is
conclusive evidence in the defendants favor of its genuine character. Reference is made,
however, to the cases of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a),
decided in 1802, and Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836,
decided in 1818, which establish a contrary rule. Citing these later cases, we find the following
quotation from Black on Judgments, Vol. II, page 764.
A judgment admitting a will to probate cannot be attacked collaterally although the will
was forged; and a payment to the executor named therein of a debt due the decedent
will discharge the same, notwithstanding the spurious character of the instrument
probated. It has also been held that, upon an indictment for forging a will, the probate of
the paper in question is conclusive evidence in the defendants favor of its genuine
character. But this particular point has lately been ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts
in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority
opinion, to hold that "according to later and sounder decisions, the probate, though conclusive
until set aside of the disposition of the property, does not protect the forger from punishment."
This was reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137
So., 711, 715), and Thompson vs. Freeman (149 So., 740, 742), also cited in support of the
majority opinion of the Court of Appeals. The dissenting opinion of the Court of Appeals in the
instant case under review makes a cursory study of the statutes obtaining in England,
Massachussetts and Florida, and comes to the conclusion that the decisions cited in the majority
opinion do not appear to "have been promulgated in the face of statutes similar to ours." The
dissenting opinion cites Whartons Criminal Evidence (11th ed., sec. 831), to show that the
probate of a will in England is only prima facie proof of the validity of the will (Op. Cit. quoting
Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp. 686689 and note), to show that
in Massachussetts there is no statute making the probate of a will conclusive, and that in Florida
the statute(sec. 1810, Revised Statutes) makes the probate conclusive evidence as to the
validity of the will with regard to personal, and prima facie as to real estate. The cases decided
by the Supreme Court of Florida cited by the majority opinion, supra, refer to wills of both
personal and real estate.
The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which
Justice Norton of the Supreme Court of California, makes the following review of the nature of
probate proceedings in England with respect to wills personal and real property.
In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts.
No probate of a will relating to real estate is there necessary. The real estate, upon the
death of the party seized, passes immediately to the devisee under the will if there be
one; or if there be no will, to the heir at law. The person who thus becomes entitled takes
possession. If one person claims to be the owner under a will, and another denies the
validity of the will and claims to be the owner as heir at law, an action of ejectment is
brought against the party who may be in possession by the adverse claimant; and on the
trial of such an action, the validity of the will is contested, and evidence may be given by
the respective parties as to the capacity of the testator to make a will, or as to any fraud
practiced upon him, or as to the actual execution of it, or as to any other circumstance
affecting its character as a valid devise of the real estate in dispute. The decision upon
the validity of the will in such action becomes res adjudicata, and is binding and
conclusive upon the parties to that action and upon any person who may subsequently
acquire the title from either of those parties; but the decision has no effect upon other
parties, and does not settle what may be called the status or character of the will, leaving
it subject to be enforced as a valid will, or defeated as invalid, whenever other parties
may have a contest depending upon it. A probate of a will of personal property, on the
contrary, is a judicial determination of the character of the will itself. It does not
necessarily or ordinarily arise from any controversy between adverse claimants, but is
necessary in order to authorize a disposition of the personal estate in pursuance of its
provisions. In case of any controversy between adverse claimants of the personal estate,
the probate is given in evidence and is binding upon the parties, who are not at liberty to
introduce any other evidence as to the validity of the will.
The intervenors, on the other hand, attempt to show that the English law on wills is different from
that stated in the case of State vs. McGlynn, supra, citing the following statutes.
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).
 3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to
be testamentary and executed in accordance with the statutory requirements . . . if it disposes of
property, whether personal or real." The Ecclesiastical Courts which took charge of testamentary
causes (Ewells Blackstone [1910], p. 460), were determined by the Court of Probate Act of 1857,
and the Court of Probate in turn was, together with other courts, incorporated into the Supreme
Court of Judicature, and transformed into the Probate Division thereof, by the Judicature Act of
1873. (Lord Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the
fact, however, that the case of Rex vs. Buttery and Macnamarra, supra, upon which they rely in
support of their theory that the probate of a forged will does not protect the forger from
punishment, was decided long before the foregoing amendatory statutes to the English law on
wills were enacted. The case of State vs. McGlynn may be considered, therefore, as more or
less authoritative on the law of England at the time of the promulgation of the decision in the
case of Rex vs. Buttery and Macnamarra.
In the case of State vs. McGlynn, the Attorney General of California filed an information to set
aside the probate of the will of one Broderick, after the lapse of one year provided by the law of
California for the review of an order probating a will, in order that the estate may be escheated to
the State of California for the review of an probated will was forged and that Broderick therefore
died intestate, leaving no heirs, representatives or devisees capable of inheriting his estate.
Upon these facts, the Supreme Court of California held.
The fact that a will purporting to be genuine will of Broderick, devising his estate to a
devisee capable of inheriting and holding it, has been admitted to probate and
established as a genuine will by the decree of a Probate Court having jurisdiction of the
case, renders it necessary to decide whether that decree, and the will established by it,
or either of them, can be set aside and vacated by the judgment of any other court. If it
shall be found that the decree of the Probate Court, not reversed by the appellate court,
is final and conclusive, and not liable to be vacated or questioned by any other court,
either incidentally or by any direct proceeding, for the purpose of impeaching it, and that
so long as the probate stands the will must be recognized and admitted in all courts to be
valid, then it will be immaterial and useless to inquire whether the will in question was in
fact genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.).
Although in the foregoing case the information filed by the State was to set aside the decree of
probate on the ground that the will was forged, we see no difference in principle between that
case and the case at bar. A subtle distinction could perhaps be drawn between setting aside a
decree of probate, and declaring a probated will to be a forgery. It is clear, however, that a duly
probated will cannot be declared to be a forgery without disturbing in a way the decree allowing
said will to probate. It is at least anomalous that a will should be regarded as genuine for one
purpose and spurious for another.
The American and English cases show a conflict of authorities on the question as to whether or
not the probate of a will bars criminal prosecution of the alleged forger of the probate will. We
have examined some important cases and have come to the conclusion that no fixed standard
maybe adopted or drawn therefrom, in view of the conflict no less than of diversity of statutory
provisions obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort,
to choose that rule most consistent with our statutory law, having in view the needed stability of
property rights and the public interest in general. To be sure, we have seriously reflected upon
the dangers of evasion from punishment of culprits deserving of the severity of the law in cases
where, as here, forgery is discovered after the probate of the will and the prosecution is had
before the prescription of the offense. By and large, however, the balance seems inclined in
favor of the view that we have taken. Not only does the law surround the execution of the will
with the necessary formalities and require probate to be made after an elaborate judicial
proceeding, but section 113, not to speak of section 513, of our Code of Civil Procedure provides
for an adequate remedy to any party who might have been adversely affected by the probate of
a forged will, much in the same way as other parties against whom a judgment is rendered under
the same or similar circumstances. (Pecson vs.Coronel, 43 Phil., 358.)The aggrieved party may
file an application for relief with the proper court within a reasonable time, but in no case
exceeding six months after said court has rendered the judgment of probate, on the ground of
mistake, inadvertence, surprise or excusable neglect. An appeal lies to review the action of a
court of first instance when that court refuses to grant relief. (Banco Español Filipino vs. Palanca,
37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56
Phil., 613.) After a judgment allowing a will to be probated has become final and unappealable,
and after the period fixed by section 113 of the Code of Civil Procedure has expired, the law as
an expression of the legislative wisdom goes no further and the case ends there.
. . . The court of chancery has no capacity, as the authorities have settled, to judge or
decide whether a will is or is not a forgery; and hence there would be an incongruity in its
assuming to set aside a probate decree establishing a will, on the ground that the decree
was procured by fraud, when it can only arrive at the fact of such fraud by first deciding
that the will was a forgery. There seems, therefore, to be a substantial reason, so long as
a court of chancery is not allowed to judge of the validity of a will, except as shown by the
probate, for the exception of probate decrees from the jurisdiction which courts of
chancery exercise in setting aside other judgments obtained by fraud. But whether the
exception be founded in good reason or otherwise, it has become too firmly established
to be disregarded. At the present day, it would not be a greater assumption to deny the
general rule that courts of chancery may set aside judgments procured by fraud, than to
deny the exception to that rule in the case of probate decrees. We must acquiesce in the
principle established by the authorities, if we are unable to approve of the reason. Judge
Story was a staunch advocate for the most enlarged jurisdiction of courts of chancery,
and was compelled to yield to the weight of authority. He says "No other excepted case
is known to exist; and it is not easy to discover the grounds upon which this exception
stands, in point of reason or principle, although it is clearly settled by authority. (1 Storys
Eq. Jur. sec. 440.)" (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. See, also,
Tracy vs. Muir, 121 American State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of
Civil Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had
been duly admitted to probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of the case. However, the
other legal question with reference to the denial to the accused of his right to a speedy trial
having been squarely raised and submitted, we shall proceed to consider the same in the light of
cases already adjudicated by this court.
2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . . .
shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O.
No. 58, sec. 15, No. 7.) Similar provisions are to be found in the Presidents Instructions to the
Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par. 2) and
the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts
appear to have been taken from similar provisions in the Constitution of the United States (6th
Amendment) and those of the various states of the American Union. A similar injunction is
contained in the Malolos Constitution (art. 8, Title IV), not to speak of other constitutions. More
than once this court had occasion to set aside the proceedings in criminal cases to give effect to
the constitutional injunction of speedy trial. (Conde vs. Judge of First Instance and Fiscal of
Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and Unson[1924], 45 Phil., 650;
People vs. Castañeda and Fernandez[1936]), 35 Off. Gaz., 1269; Kalaw vs. Apostol, Oct. 15,
1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R. No. 46039.).
In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we said.
Philippine organic and statutory law expressly guarantee that in all criminal prosecutions
the accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other
accused persons, has a right to a speedy trial in order that if innocent she may go free,
and she has been deprived of that right in defiance of law. Dismissed from her humble
position, and compelled to dance attendance on courts while investigations and trials are
arbitrarily postponed without her consent, is palpably and openly unjust to her and a
detriment to the public. By the use of reasonable diligence, the prosecution could have
settled upon the appropriate information, could have attended to the formal preliminary
examination, and could have prepared the case for a trial free from vexatious, capricious,
and oppressive delays.
In People vs. Castañeda and Fernandez, supra, this court found that the accused had not been
given a fair and impartial trial. The case was to have been remanded to the court a quo for a new
trial before an impartial judge. This step, however, was found unnecessary. A review of the
evidence convinced this court that a judgment of conviction for theft, as charged, could not be
sustained and, having in view the right to a speedy trial guaranteed by the Constitution to every
person accused of crime, entered a judgment acquitting the accused, with costs de oficio. We
said.
. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every accused
person the right to a speedy trial. This criminal proceeding has been dragging on for
almost five years now. The accused have twice appealed to this court for redress from
the wrong that they have suffered at the hands of the trial court. At least one of them,
namely Pedro Fernandez alias Piro, had been con-fined in prison from July 20, 1932 to
November 27, 1934, for inability to post the required bond of P3,000 which was finally
reduced to P300. The Government should be the last to set an example of delay and
oppression in the administration of justice and it is the moral and legal obligation of this
court to see that the criminal proceedings against the accused come to an end and that
they be immediately dis-charged from the custody of the law. (Conde vs. Rivera and
Unson, 45 Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to the
doctrines stated in the second Conde case, supra. In granting the writs prayed for, this court,
after referring to the constitutional and statutory provisions guaranteeing to persons accused of
crime the right to a speedy trial, said:
Se infiere de los preceptos legales transcritos que todo acusado en causa criminal tiene
derecho a ser juzgado pronta y publicamente. Juicio rapido significa un juicioque se
celebra de acuerdo con la ley de procedimiento criminal y los reglamentos, libre de
dilaciones vejatorias, caprichosas y opersivas (Burnett vs.State, 76 Ark., 295; 88S. W.,
956; 113 AMSR, 94; Stewart vs. State, 13 Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28
N. W., 79; Nixon vs. State, 10 Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25;
109 P., 736; State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo.,
227, 98 p., 122;22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos admitidos resulta
que al recurrente se le concedio vista parcial del asunto, en el Juzgado de Primera
Instancia de Samar, solo despues de haber transcurrido ya mas de un año y medio
desde la presentacion de la primera querella y desde la recepcion de la causa en dicho
Juzgado, y despues de haberse transferido dos veces la vista delasunto sin su
consentimiento. A esto debe añadirse que laprimera transferencia de vista era
claramente injustificadaporque el motivo que se alego consistio unicamente en
laconveniencia personal del ofendido y su abogado, no habiendose probado
suficientemente la alegacion del primero de quese hallaba enfermo. Es cierto que el
recurrente habia pedido que, en vez de señalarse a vista el asunto para el mayo de
1936, lo fuera para el noviembre del mismo año; pero,aparte de que la razon que alego
era bastante fuerte porquesu abogado se oponia a comparecer por compromisos
urgentes contraidos con anterioridad y en tal circunstancia hubiera quedado indefenso si
hubiese sido obligado a entraren juicio, aparece que la vista se pospuso por el Juzgado
amotu proprio, por haber cancelado todo el calendario judicial preparado por el
Escribano para el mes de junio. Declaramos, con visto de estos hechos, que al
recurrents se leprivo de su derecho fundamental de ser juzgado prontamente.
Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent judge
of the Court of First Instance of Rizal to dismiss the complaint filed in a criminal case against the
petitioner, to cancel the bond put up by the said petitioner and to declare the costs de oficio. In
accepting the contention that the petitioner had been denied speedy trial, this court said:
Consta que en menos de un año el recurrente fue procesado criminalmente por el
alegado delito de abusos deshonestos, en el Juzgado de Paz del Municipio de Cainta,
Rizal. Como consecuencia de las denuncias que contra el se presentaron fue arrestado
tres veces y para gozar de libertad provisional, en espera de los juicios, se vio obligado
a prestartres fianzas por la suma de P1,000 cada una. Si no se da fin al proceso que
ultimamente se ha incoado contra el recurrente la incertidumbre continuara cerniendose
sobre el y las consiguientes molestias y preocupaciones continuaran igualmente
abrumandole. El Titulo III, articulo 1, No. 17,de la Constitucion preceptua que en todo
proceso criminalel acusado tiene derecho de ser juzgado pronta y publicamente. El
Articulo 15, No. 7, de la Orden General No. 58 dispone asimismo que en las causas
criminales el acusado tendra derecho a ser juzgado pronta y publicamente. Si el
recurrente era realmente culpable del delito que se le imputo, tenia de todos modos
derechos a que fuera juzgado pronta y publicamente y sin dilaciones arbitrarias y
vejatorias. Hemos declarado reiteradamente que existe un remedio positivo para los
casos en que se viola el derecho constitucional del acusado de ser juzgado
prontamente. El acusado que esprivado de su derecho fundomental de ser enjuiciado
rapidamente tiene derecho a pedir que se le ponga en libertad, si estuviese detenido, o a
que la causa que pende contra el sea sobreseida definitivamente. (Conde contra Rivera
y Unson, 45 Jur. Fil., 682; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox
[1880], 3 Mont., 512; Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937;
Pueblo contra Castañeda y Fernandez, 35 Gac. Of., 1357.)
We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the
present case may be at variance with those of the cases hereinabove referred to. Nevertheless,
we are of the opinion that, under the circumstances, we should consider the substance of the
right instead of indulging in more or less academic or undue factual differentiations. The
petitioner herein has been arrested four times, has put up a bond in the sum of P4,000 and has
engaged the services of counsel to undertake his defense an equal number of times. The first
arrest was made upon a complaint filed by one of the intervenors herein for alleged falsification
of a will which, sixteen months before, had been probated in court. This complaint, after
investigation, was dismissed at the complainant's own request. The second arrest was made
upon a complaint charging the same offense and this complaint, too, was dismissed at the
behest of the complainant herself who alleged the quite startling ground that the petitioner was in
poor health. The third arrest was made following the filing of an information by the provincial
fiscal of Pampanga, which information was dismissed, after due investigation, because of
insufficiency of the evidence. The fourth arrest was made when the provincial fiscal secured a
reinvestigation of the case against the petitioner on the pretext that he had additional evidence to
present, although such evidence does not appear to have ever been presented.
It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he
presented an information charging the petitioner, for the third time, of the offense of falsification.
This, however, does not matter. The prosecution of offenses is a matter of public interest and it is
the duty of the government or those acting in its behalf to prosecute all cases to their termination
without oppressive, capricious and vexatious delay. The Constitution does not say that the right
to a speedy trial may be availed of only where the prosecution for crime is commenced and
undertaken by the fiscal. It does not exclude from its operation cases commenced by private
individuals. Where once a person is prosecuted criminally, he is entitled to a speedy trial,
irrespective of the nature of the offense or the manner in which it is authorized to be
commenced. In any event, even the actuations of the fiscal himself in this case is not entirely
free from criticism. From October 27, 1932, when the first complaint was filed in the justice of the
peace court of San Fernando, to February 2, 1934, when the provincial fiscal filed his information
with the justice of the peace of Mexico, one year, three months and six days transpired; and from
April 27, 1933, when the second criminal complaint was dismissed by the justice of the peace of
Mexico, to February 2, 1934, nine months and six days elapsed. The investigation following the
fourth arrest, made after the fiscal had secured a reinvestigation of the case, appears also to
have dragged on for about a year. There obviously has been a delay, and considering the
antecedent facts and circumstances within the knowledge of the fiscal, the delay may not at all
be regarded as permissible. In Kalaw vs. Apostol, supra, we observed that the prosecuting
officer all prosecutions for public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and
that it is his duty to see that criminal cases are heard without vexatious, capricious and
oppressive delays so that the courts of justice may dispose of them on the merits and determine
whether the accused is guilty or not. This is as clear an admonition as could be made. An
accused person is entitled to a trial at the earliest opportunity. (Sutherland on the Constitution, p.
664; United States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he
commencement of trial for an unreasonable length of time. If the proceedings pending trial are
deferred, the trial itself is necessarily delayed. It is not to be supposed, of course, that the
Constitution intends to remove from the prosecution every reasonable opportunity to prepare for
trial. Impossibilities cannot be expected or extraordinary efforts required on the part of the
prosecutor or the court. As stated by the Supreme Court of the United States, "The right of a
speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.
It secures rights to a defendant. It does not preclude the rights of public justice."
(Beavers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).
It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of his
brief, that the delay was due to "the efforts towards reaching an amicable extrajudicial
compromise," but this fact, we think, casts doubt instead upon the motive which led the
intervenors to bring criminal action against the petitioner. The petitioner claims that the intention
of the intervenors was to press upon settlement, with the continuous threat of criminal
prosecution, notwithstanding the probate of the will alleged to have been falsified. Argument of
counsel for the petitioner in this regard is not without justification. Thus after the filing of the
second complaint with the justice of the peace court of Mexico, complainant herself, as we have
seen, asked for dismissal of the complaint, on the ground that "el acusado tenia la salud
bastante delicada," and, apparently because of failure to arrive at any settlement, she decided to
renew her complaint.
Counsel for the intervenors contend — and the contention is sustained by the Court of Appeals
— that the petitioner did not complain heretofore of the denial of his constitutional right to a
speedy trial. This is a mistake. When the petitioner, for the fourth time, was ordered arrested by
the Court of First Instance of Pampanga, he moved for reconsideration of the order of arrest,
alleging, among other things, "Que por estas continuas acusaciones e investigaciones, el
acusado compareciente no obstante su mal estado de salud desde el año 1932 en que tuvo que
ser operado por padecer de tuberculosis ha tenido que sostener litigios y ha sufrido la mar de
humiliaciones y zozobras y ha incudo en enormes gastos y molestias y ha desatendido su
quebrantada salud." The foregoing allegation was inserted on page 6 of the amended petition
for certiorari presented to the Court of Appeals. The constitutional issue also appears to have
been actually raised and considered in the Court of Appeals. In the majority opinion of that court,
it is stated:
Upon the foregoing facts, counsel for the petitioner submits for the consideration of this
court the following questions of law: First, that the respondent court acted arbitrarily and
with abuse of its authority, with serious damage and prejudice to the rights and interests
of the petitioner, in allowing that the latter be prosecuted and arrested for the fourth time,
and that he be subjected, also for the fourth time, to a preliminary investigation for the
same offense, hereby converting the court into an instrument of oppression and
vengeance on the part of the alleged offended parties, Rosario Basa et al.; . . . .
And in the dissenting opinion, we find the following opening paragraph:
We cannot join in a decision declining to stop a prosecution that has dragged for about
five years and caused the arrest on four different occasions of a law abiding citizen for
the alleged offense of falsifying a will that years be competent jurisdiction.
From the view we take of the instant case, the petitioner is entitled to have the criminal
proceedings against him quashed. The judgment of the Court of Appeals is hereby reversed,
without pronouncement regarding costs. So ordered.
Republic of the Philippines
SUPREME COURT
THIRD DIVISION
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs.
JOSEFINA C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the burden of showing why
it should not be allowed. In the present case, petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot attribute any reversible error on the part of the
appellate tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse
and set aside the December 12, 2002 Decision2 and the March 7, 2003 Resolution3 of the Court of
Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision appealed from
is REVERSED and SET ASIDE. In its place judgment is rendered approving and allowing
probate to the said last will and testament of Placido Valmonte and ordering the issuance of
letters testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the
court a quo for further and concomitant proceedings."4
The assailed Resolution denied petitioner’s Motion for Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as follows:
"x x x: Like so many others before him, Placido toiled and lived for a long time in the United
States until he finally reached retirement. In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio Village,
Makati, which he owned in common with his sister Ciriaca Valmonte and titled in their names in
TCT 123468. Two years after his arrival from the United States and at the age of 80 he wed
Josefina who was then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on
February 5, 1982. But in a little more than two years of wedded bliss, Placido died on October 8,
1984 of a cause written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in English and consisting of two (2)
pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page
contains the entire testamentary dispositions and a part of the attestation clause, and was signed
at the end or bottom of that page by the testator and on the left hand margin by the three
instrumental witnesses. The second page contains the continuation of the attestation clause and
the acknowledgment, and was signed by the witnesses at the end of the attestation clause and
again on the left hand margin. It provides in the body that:
‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD
AMEN:
‘I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident
of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and disposing
mind and memory, do hereby declare this to be my last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic
Church in accordance with the rites and said Church and that a suitable monument to be erected
and provided my by executrix (wife) to perpetuate my memory in the minds of my family and
friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2)
portion of the follow-described properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro
Manila, described and covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-
Manila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having share
and share alike;
b. 2-storey building standing on the above-described property, made of strong and mixed
materials used as my residence and my wife and located at No. 9200 Catmon Street, Makati,
Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly in
the name of my deceased sister, Ciriaca Valmonte and myself as co-owners, share and share
alike or equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal properties, including my savings
account bank book in USA which is in the possession of my nephew, and all others whatsoever
and wherever found, I give, devise and bequeath to my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament,
and it is my will that said executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon
City, Philippines.’
"The allowance to probate of this will was opposed by Leticia on the grounds that:
1. Petitioner failed to allege all assets of the testator, especially those found in the USA;
2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give
them proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal solemnities and formalities
were not complied with;
4. Testator was mentally incapable to make a will at the time of the alleged execution he being in
an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure on the part of the petitioner
and/or her agents and/or assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument
should be his will at the time of affixing his signature thereto;’
and she also opposed the appointment as Executrix of Josefina alleging her want of
understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty.
Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses
Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor
Leticia and her daughter Mary Jane Ortega testified.
"According to Josefina after her marriage with the testator they lived in her parents house at
Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00 monthly
pension and stayed at the said Makati residence. There were times though when to shave off on
expenses, the testator would travel alone. And it was in one of his travels by his lonesome self
when the notarial will was made. The will was witnessed by the spouses Eugenio and Feliza
Gomez, who were their wedding sponsors, and by Josie Collado. Josefina said she had no
knowledge of the existence of the last will and testament of her husband, but just serendipitously
found it in his attache case after his death. It was only then that she learned that the testator
bequeathed to her his properties and she was named the executrix in the said will. To her
estimate, the value of property both real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never suffered mental infirmity because
despite his old age he went alone to the market which is two to three kilometers from their home
cooked and cleaned the kitchen and sometimes if she could not accompany him, even traveled
to Manila alone to claim his monthly pension. Josefina also asserts that her husband was in
good health and that he was hospitalized only because of a cold but which eventually resulted in
his death.
"Notary Public Floro Sarmiento, the notary public who notarized the testator’s will, testified that it
was in the first week of June 1983 when the testator together with the three witnesses of the will
went to his house cum law office and requested him to prepare his last will and testament. After
the testator instructed him on the terms and dispositions he wanted on the will, the notary public
told them to come back on June 15, 1983 to give him time to prepare it. After he had prepared "It then found these grounds extant and proven, and accordingly disallowed probate."5
the will the notary public kept it safely hidden and locked in his drawer. The testator and his
witnesses returned on the appointed date but the notary public was out of town so they were Ruling of the Court of Appeals
instructed by his wife to come back on August 9, 1983, and which they did. Before the testator
and his witnesses signed the prepared will, the notary public explained to them each and every Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate.
term thereof in Ilocano, a dialect which the testator spoke and understood. He likewise explained The CA upheld the credibility of the notary public and the subscribing witnesses who had
that though it appears that the will was signed by the testator and his witnesses on June 15, acknowledged the due execution of the will. Moreover, it held that the testator had testamentary
1983, the day when it should have been executed had he not gone out of town, the formal capacity at the time of the execution of the will. It added that his "sexual exhibitionism and
execution was actually on August 9, 1983. He reasoned that he no longer changed the unhygienic, crude and impolite ways"6 did not make him a person of unsound mind.
typewritten date of June 15, 1983 because he did not like the document to appear dirty. The
notary public also testified that to his observation the testator was physically and mentally
Hence, this Petition.7
capable at the time he affixed his signature on the will.
Issues
"The attesting witnesses to the will corroborated the testimony of the notary public, and testified
that the testator went alone to the house of spouses Eugenio and Feliza Gomez at GSIS Village,
Quezon City and requested them to accompany him to the house of Atty. Floro Sarmiento Petitioner raises the following issues for our consideration:
purposely for his intended will; that after giving his instructions to Atty. Floro Sarmiento, they
were told to return on June 15, 1983; that they returned on June 15, 1983 for the execution of "I.
the will but were asked to come back instead on August 9, 1983 because of the absence of the
notary public; that the testator executed the will in question in their presence while he was of Whether or not the findings of the probate court are entitled to great respect.
sound and disposing mind and that he was strong and in good health; that the contents of the
will was explained by the notary public in the Ilocano and Tagalog dialect and that all of them as "II.
witnesses attested and signed the will in the presence of the testator and of each other. And that
during the execution, the testator’s wife, Josefina was not with them. Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or
trickery, and that Placido Valmonte never intended that the instrument should be his last will and
"The oppositor Leticia declared that Josefina should not inherit alone because aside from her testament.
there are other children from the siblings of Placido who are just as entitled to inherit from him.
She attacked the mental capacity of the testator, declaring that at the time of the execution of the "III.
notarial will the testator was already 83 years old and was no longer of sound mind. She knew
whereof she spoke because in 1983 Placido lived in the Makati residence and asked Leticia’s
Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed
family to live with him and they took care of him. During that time, the testator’s physical and the subject will."8
mental condition showed deterioration, aberrations and senility. This was corroborated by her
daughter Mary Jane Ortega for whom Placido took a fancy and wanted to marry.
In short, petitioner assails the CA’s allowance of the probate of the will of Placido Valmonte.
"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the
opposition to two grounds, namely: This Court’s Ruling

1. Non-compliance with the legal solemnities and formalities in the execution and attestation of The Petition has no merit.
the will; and
Main Issue:
2. Mental incapacity of the testator at the time of the execution of the will as he was then in an
advanced state of senility Probate of a Will
At the outset, we stress that only questions of law may be raised in a Petition for Review under
Section 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence presented
during the trial may be examined and the factual matters resolved by this Court when, as in the
instant case, the findings of fact of the appellate court differ from those of the trial court.9
The fact that public policy favors the probate of a will does not necessarily mean that every will
presented for probate should be allowed. The law lays down the procedures and requisites that
must be satisfied for the probate of a will.10 Verily, Article 839 of the Civil Code states the
instances when a will may be disallowed, as follows:
"Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its
execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his
will at the time of affixing his signature thereto."
In the present case, petitioner assails the validity of Placido Valmonte’s will by imputing fraud in
its execution and challenging the testator’s state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the execution of the will, but
maintains that the circumstances surrounding it are indicative of the existence of fraud.
Particularly, she alleges that respondent, who is the testator’s wife and sole beneficiary,
conspired with the notary public and the three attesting witnesses in deceiving Placido to sign it.
Deception is allegedly reflected in the varying dates of the execution and the attestation of the
will.
Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to]
almost immediately plunge into marriage with a man who [was] thrice her age x x x and who
happened to be [a] Fil-American pensionado,"11 thus casting doubt on the intention of respondent
in seeking the probate of the will. Moreover, it supposedly "defies human reason, logic and
common experience"12 for an old man with a severe psychological condition to have willingly
signed a last will and testament.
We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the
subject of it is cheated. It may be of such character that the testator is misled or deceived as to
the nature or contents of the document which he executes, or it may relate to some extrinsic fact,
in consequence of the deception regarding which the testator is led to make a certain will which,
but for the fraud, he would not have made."13
We stress that the party challenging the will bears the burden of proving the existence of fraud at
the time of its execution.14 The burden to show otherwise shifts to the proponent of the will only
upon a showing of credible evidence of fraud.15 Unfortunately in this case, other than the self-
serving allegations of petitioner, no evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not affect the due execution of a
will.16 That the testator was tricked into signing it was not sufficiently established by the fact that
he had instituted his wife, who was more than fifty years his junior, as the sole beneficiary; and
disregarded petitioner and her family, who were the ones who had taken "the cudgels of taking
care of [the testator] in his twilight years."17
Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on
the will does not invalidate the document, "because the law does not even require that a
[notarial] will x x x be executed and acknowledged on the same occasion."18 More important, the
will must be subscribed by the testator, as well as by three or more credible witnesses who must
also attest to it in the presence of the testator and of one another.19Furthermore, the testator and
the witnesses must acknowledge the will before a notary public.20 In any event, we agree with the
CA that "the variance in the dates of the will as to its supposed execution and attestation was
satisfactorily and persuasively explained by the notary public and the instrumental witnesses."21
The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985,
October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced respectively
as follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15 when the testator and his
witnesses were supposed to be in your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your house? Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

A They did as of agreement but unfortunately, I was out of town. xxxxxxxxx

xxxxxxxxx A The reason why we went there three times is that, the first week of June was out first time. We
went there to talk to Atty. Sarmiento and Placido Valmonte about the last will and testament.
Q The document has been acknowledged on August 9, 1983 as per acknowledgement After that what they have talked what will be placed in the testament, what Atty. Sarmiento said
appearing therein. Was this the actual date when the document was acknowledged? was that he will go back on the 15th of June. When we returned on June 15, Atty. Sarmiento was
not there so we were not able to sign it, the will. That is why, for the third time we went there on
A Yes sir. August 9 and that was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6)

Q What about the date when the testator and the three witnesses affixed their respective Josie Collado:
signature on the first and second pages of exhibit C?
Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?
A On that particular date when it was acknowledged, August 9, 1983.
A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.
Q Why did you not make the necessary correction on the date appearing on the body of the
document as well as the attestation clause? Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?

A Because I do not like anymore to make some alterations so I put it in my own handwriting A Yes, Sir.
August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)
Q For what purpose?
Eugenio Gomez:
A Our purpose is just to sign the will.
Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the
acknowledgement it is dated August 9, 1983, will you look at this document and tell us this Q Were you able to sign the will you mentioned?
discrepancy in the date?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was
first week of June and Atty. Sarmiento told us to return on the 15th of June but when we Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a
returned, Atty. Sarmiento was not there. fraud. There was no showing that the witnesses of the proponent stood to receive any benefit
from the allowance of the will. The testimonies of the three subscribing witnesses and the notary
Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back? are credible evidence of its due execution.23 Their testimony favoring it and the finding that it was
executed in accordance with the formalities required by law should be affirmed, absent any
A We returned on the 9th of August and there we signed. showing of ill motives.24

Q This August 9, 1983 where you said it is there where you signed, who were your companions? Capacity to Make a Will

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8) In determining the capacity of the testator to make a will, the Civil Code gives the following
guidelines:
Felisa Gomez on cross-examination:
"Article 798. In order to make a will it is essential that the testator be of sound mind at the time of WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of
its execution. Appeals are AFFIRMED. Costs against petitioner.

"Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all SO ORDERED.
his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered by
disease, injury or other cause.

"It shall be sufficient if the testator was able at the time of making the will to know the nature of
the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.

"Article 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.

"The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be insane, the person who maintains the
SECOND DIVISION
validity of the will must prove that the testator made it during a lucid interval."
G.R. Nos. 140371-72 November 27, 2006
According to Article 799, the three things that the testator must have the ability to know to be
considered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the
proper objects of the testator’s bounty, and (3) the character of the testamentary act. Applying DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,
this test to the present case, we find that the appellate court was correct in holding that Placido vs.
had testamentary capacity at the time of the execution of his will. HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National
Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D.
SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO,
It must be noted that despite his advanced age, he was still able to identify accurately the kinds SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D.
of property he owned, the extent of his shares in them and even their locations. As regards the
SEANGIO, Respondents.
proper objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. As we
have stated earlier, the omission of some relatives from the will did not affect its formal validity.
There being no showing of fraud in its execution, intent in its disposition becomes irrelevant. DECISION

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held thus: AZCUNA, J.:

"Between the highest degree of soundness of mind and memory which unquestionably carries
with it full testamentary capacity, and that degrees of mental aberration generally known as
insanity or idiocy, there are numberless degrees of mental capacity or incapacity and while on
one hand it has been held that mere weakness of mind, or partial imbecility from disease of
body, or from age, will not render a person incapable of making a will; a weak or feebleminded
person may make a valid will, provided he has understanding and memory sufficient to enable
him to know what he is about to do and how or to whom he is disposing of his property. To
constitute a sound and disposing mind, it is not necessary that the mind be unbroken or
unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity
does not necessarily require that a person shall actually be insane or of unsound mind."26
This is a petition for certiorari1 with application for the issuance of a writ of preliminary injunction
and/or temporary restraining order seeking the nullification of the orders, dated August 10, 1999
and October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing
the petition for probate on the ground of preterition, in the consolidated cases, docketed as SP.
Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the Intestate
Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of the Probate of
the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of the intestate
estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98–90870 of the RTC, and
praying for the appointment of private respondent Elisa D. Seangio–Santos as special
administrator and guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They
contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the
deceased Segundo executed a general power of attorney in favor of Virginia giving her the
power to manage and exercise control and supervision over his business in the Philippines; 3)
Virginia is the most competent and qualified to serve as the administrator of the estate of
Segundo because she is a certified public accountant; and, 4) Segundo left a holographic will,
dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for
cause. In view of the purported holographic will, petitioners averred that in the event the
decedent is found to have left a will, the intestate proceedings are to be automatically suspended
and replaced by the proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP.
Proc. No. 99–93396, was filed by petitioners before the RTC. They likewise reiterated that the
probate proceedings should take precedence over SP. Proc. No. 98–90870 because testate
proceedings take precedence and enjoy priority over intestate proceedings.2
The document that petitioners refer to as Segundo’s holographic will is quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at
nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng
lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging
lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya
na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako
nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na
kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon
pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa
mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel
Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at
hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong
saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc. No. 99–
93396 were consolidated.4
On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings5 primarily on the ground that the document purporting to be the holographic will of
Segundo does not contain any disposition of the estate of the deceased and thus does not meet
the definition of a will under Article 783 of the Civil Code. According to private respondents, the
will only shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and
nothing else; that all other compulsory heirs were not named nor instituted as heir, devisee or
legatee, hence, there is preterition which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called upon to rule only on the
extrinsic validity of the will, it is not barred from delving into the intrinsic validity of the same, and
ordering the dismissal of the petition for probate when on the face of the will it is clear that it
contains no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the
authority of the probate court is limited only to a determination of the extrinsic validity of the will;
2) private respondents question the intrinsic and not the extrinsic validity of the will; 3)
disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on preterition
does not apply because Segundo’s will does not constitute a universal heir or heirs to the
exclusion of one or more compulsory heirs.6
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate
proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al.,
clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and
Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus applies.
However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she
not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an
abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court
[155 SCRA 100 (1987)] has made its position clear: "for … respondents to have tolerated the
probate of the will and allowed the case to progress when, on its face, the will appears to be
intrinsically void … would have been an exercise in futility. It would have meant a waste of time,
effort, expense, plus added futility. The trial court could have denied its probate outright or could
have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity
of the will was resolved(underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for
lack of merit. Special Proceedings No. 99–93396 is hereby DISMISSED without pronouncement
as to costs.
SO ORDERED.7
Petitioners’ motion for reconsideration was denied by the RTC in its order dated October 14,
1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN
ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999
(ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF
RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE
CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL
FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE
TESTATOR’S WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION,
WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT
IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO
A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATOR’S TESTAMENTARY CAPACITY AND THE
COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO
RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS
INDUBITABLE FROM THE FACE OF THE TESTATOR’S WILL THAT NO PRETERITON
EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE
INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE
PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court
which respectively mandate the court to: a) fix the time and place for proving the will when all
concerned may appear to contest the allowance thereof, and cause notice of such time and
place to be published three weeks successively previous to the appointed time in a newspaper of
general circulation; and, b) cause the mailing of said notice to the heirs, legatees and devisees of
the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its title
clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a
compulsory heir. Thus, there is no preterition in the decedent’s will and the holographic will on its
face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private respondents alike,
with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the direct
line of Segundo were preterited in the holographic will since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the hearing
of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners,
and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was dated, signed
and written by him in his own handwriting. Except on the ground of preterition, private
respondents did not raise any issue as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo’s
intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited
therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be
effected through a will wherein the legal cause therefor shall be specified. With regard to the
reasons for the disinheritance that were stated by Segundo in his document, the Court believes
that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by
his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child
or descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with the
spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence
causes the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who disinherit
such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant;8
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo can be
considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, 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.
Segundo’s document, although it may initially come across as a mere disinheritance instrument,
conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed
by the hand of Segundo himself. An intent to dispose mortis causa[9] can be clearly deduced
from the terms of the instrument, and while it does not make an affirmative disposition of the
latter’s property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In
other words, the disinheritance results in the disposition of the property of the testator Segundo
in favor of those who would succeed in the absence of Alfredo.10
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the
form and within the limits prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain and give effect to that intention. It
is only when the intention of the testator is contrary to law, morals, or public policy that it cannot
be given effect.11
Holographic wills, therefore, being usually prepared by one who is not learned in the law, as
illustrated in the present case, should be construed more liberally than the ones drawn by an
expert, taking into account the circumstances surrounding the execution of the instrument and
the intention of the testator.12 In this regard, the Court is convinced that the document, even if
captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last
testamentary act and was executed by him in accordance with law in the form of a holographic
will. Unless the will is probated,13 the disinheritance cannot be given effect.14
With regard to the issue on preterition,15 the Court believes that the compulsory heirs in the direct
line were not preterited in the will. It was, in the Court’s opinion, Segundo’s last expression to
bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo
did not institute an heir16 to the exclusion of his other compulsory heirs. The mere mention of the
name of one of the petitioners, Virginia, in the document did not operate to institute her as the
universal heir. Her name was included plainly as a witness to the altercation between Segundo
and his son, Alfredo.1âw phi 1
Considering that the questioned document is Segundo’s holographic will, and that the law favors
testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil
Code provides that no will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a
person to dispose of his property may be rendered nugatory.17
In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the full
probated. It is settled that testate proceedings for the settlement of the estate of the decedent exercise of my mental faculties, do hereby make my last will and testament, and revoke
take precedence over intestate proceedings for the same purpose.18 all former wills by me executed.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila,
Branch 21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is
directed to reinstate and hear SP Proc. No. 99-93396 for the allowance of the holographic will of
Segundo Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the
termination of the aforesaid testate proceedings.
No costs.
SO ORDERED.
I direct and order that my body be buried in conformity with my social standing.
That having no forced heirs, I will all my properties, both movable and immovable, to my
nephew, Lorenzo Pecson, who is married to my niece Angela Coronel, in consideration
of the good services with he has rendered, and is rendering to me with good will and
disinterestedness and to my full satisfaction.
I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed
and ordained in this my will, without bond. Should he not be able to discharge his duties
as such executor for any reason whatsoever, I name and appoint as substitute executor
my grandson Victor Pecson, a native and resident of the town of Betis, without requiring
him to give bond. 1aw ph!l.net

Republic of the Philippines

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

EN BANC In testimony whereof and as I do not know how to write my name, I have requested
Vicente J. Francisco to write my name at the foot hereof and on the left margin of each of
its sheet before me and all the undersigned witnesses this July 1, 1918.
G.R. No. L-20374 October 11, 1923
VICENTE J. FRANCISCO
In re of Dolores Coronel, deceased.
"For the testatrix Dolores Coronel
LORENZO PECSON, applicant-appellee,
vs.
AGUSTIN CORONEL, ET AL., opponents-appellants. The foregoing document was executed and declared by Dolores Coronel to be her last
will and testament in our presence, and as the testatrix does not know how to write her
name, she requested Vicente J. Francisco to sign her name under her express direction
Fisher, DeWitt, Perkins and Brady for appellants.
in our presence, at the foot, and on the left margin of each and every sheet, hereof. In
Ross and Lawrence and Guillermo Lualhati for appellee.
testimony whereof, each of us signed these presents in the presence of others and of the
testatrix at the foot hereof and on the margin of each and everyone of the two sheets of
which this document is composed, which are numbered "one" and "two" on the upper
part of the face thereof.

ROMUALDEZ, J.: (Sgd.) "MAXIMO VERGARA SOTERO DUMAUAL MARCOS DE LOS

SANTOS
On November 28, 1922, the Court of First Instance of Pampanga probated as the last will and
testament of Dolores Coronel, the document Exhibit A, which translated is as follows: MARIANO L. CRISOSTOMO PABLO BARTOLOME MARCOS
DE LA CRUZ DAMIAN CRISOSTOMO
In the name of God, Amen:
On the left margin of the two sheets of the will the following signatures also appear:
 Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel,
M. Vergara, Pablo Bartolome, Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos
de los Santos.
The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel, who is a
niece of the deceased Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow of the
deceased Macario Gozum, in her own behalf and that of her three minor children, Hilarion
Coronel, Geronimo Coronel, Maria Coronel and her husband Eladio Gongco, Juana Bituin,
widow of the deceased Hipolito Coronel, in her own behalf and that of her three children,
Generosa, Maria, and Jose, all minors, Rosario Coronel, Agustin Coronel, Filomeno Coronel,
Casimiro Coronel, Alejo Coronel, Maria Coronel, Severina Coronel, Serapia Coronel, Maria
Juana de Ocampo, widow of the deceased Manuel Coronel, Dionisia Coronel, and her husband
Pantaleon Gunlao.
The probate of this will is impugned on the following grounds: (a) That the proof does not that the
document Exhibit A above copied contains the last will of Dolores Coronel, and (b) that the
attestation clause is not in accordance with the provisions of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645.
These are the two principal questions which are debated in this case and which we will now
examine separately.
As to the first, which is the one raised in the first assignment of error, the appellants argue: First,
that it was improbable and exceptional that Dolores Coronel should dispose of her estate, as set
forth in the document Exhibit A, her true being that the same be distributed among her blood
relatives; and second, that if such will not expressed in fact, it was due to extraneous illegal
influence.
Let us examine the first point.
The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not
natural nor usual that she should completely exclude her blood relatives from her vast estate, in
order to will the same to one who is only a relative by affinity, there appearing no sufficient
motive for such exclusion, inasmuch as until the death of Dolores Coronel, she maintained very
cordial relations with the aforesaid relatives who had helped her in the management and
direction of her lands. It appears, however, from the testimony of Attorney Francisco (page 71,
transcript of the stenographic notes) that Dolores Coronel revealed to him her suspicion against
some of her nephews as having been accomplices in a robbery of which she had been a victim.
As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the opponents
admit that he rendered them at least from the year 1914, although there is proof showing that he
rendered such services long before that time.
The appellants emphasize the fact that family ties in this country are very strongly knit and that
the exclusion of relative one's estate an exceptional case. It is true that ties of relationship in the
Philippines are very strong, but we understand that cases of preterition of relatives from the
inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced
heirs is rendered sacred by the civil Code in force in the Philippines since 1889. It is so provided
in the first paragraph of article in the following terms:
Any person who was no forced heirs may dispose by will of all his property or any part of
it in favor of any person qualified to acquire it.
Even ignoring the precedents of this legal precept, the Code embodying it has been in force in
the Philippines for more than a quarter of a century, and for this reason it is not tenable to say
that the excercise of the liberty thereby granted is necessarily exceptional, where it is not shown
that the inhabitants of this country whose customs must have been take into consideration by the
legislator in adopting this legal precept, are averse to such a liberty.
As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of
the moment. The proof adduced by this appelle, although contradicted, shows by a
preponderance of evidence that besides the services which the opponents admit had been
rendered by him to Dolores Coronel since the year 1914, he had also rendered services prior to
that time and was the administrator and manager of the affairs of said Dolores in the last years of
her life. And that this was not a whim of the moment is shown by the fact that six years before
the execution of the will in question, said Lorenzo Pecson was named and appointed by Dolores
Coronel as her sole heir in the document Exhibit B, which, translated, is as follows:
1. That my present property was acquired by me by inheritance from my parents, but a
great part thereof was acquired by me by my own efforts and exertions;
2. That I have made no inventory of my properties, but they can be seen in the title
deeds in my possession and in the declarations of ownership;
3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known resident of
the town, my heir to succeed to all my properties;
4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default, Victor
Pecson, a resident of the same town;
5. That as to my burial and other things connected with the eternal rest of my soul, I
leave them to the sound direction of the aforesaid Lorenzo Pecson;
 6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town,
to write this will in accordance with my wishes and precise instructions.
In testimony whereof I had the said Martin Pangilinan write my name and surname, and
affixed my mark between my name and surname, and don Francisco Dumaual, Don
Mariano Sunglao, Don Sotero Dumaual, Don Marcos de la Cruz and Don Martin
Pangilinan signed as witnesses, they having been present at the beginning of, during,
and after, the execution of this my last will.
(Sgd.) "DOLORES CORONEL
Witnesses:
(Sgd.) "MARIANO SUNGLAO
MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"
The appellants find in the testament Exhibit B something to support their contention that the
intention of Dolores Coronel was to institute the said Pecson not as sole beneficiary, but simply
as executor and distributor of all her estate among her heirs, for while Lorenzo Pecson's
contention that he was appointed sold beneficiary is based on the fact that he enjoyed the
confidence of Dolores Coronel in 1918 and administered all her property, he did not exclusively
have this confidence and administration in the year 1912. Although such administration and
confidence were enjoyed by Pecson always jointly with others and never exclusively, this fact
does not show that the will of the testatrix was to appoint Pecson only as executor and distributor
of her estate among the heirs, nor does it prevent her, the testatrix, from instituting him in 1912
or 1918 as sole beneficiary; nor does it constitute, lastly, a test for determining whether or not
such institution in favor of Pecson was the true will of the testatrix.
We find, therefore, nothing strange in the preterition made by Dolores Coronel of her blood
relatives, nor in the designation of Lorenzo Pecson as her sole beneficiary. Furthermore,
although the institution of the beneficiary here would not seem the most usual and customary,
still this would not be null per se.
In the absence of any statutory restriction every person possesses absolute dominion
over his property, and may bestow it upon whomsoever he pleases without regard to
natural or legal claim upon his bounty. If the testator possesses the requisite capacity to
make a will, and the disposition of his property is not affected by fraud of undue
influence, the will is not rendered invalid by the fact that it is unnatural, unreasonable, or
unjust. Nothing can prevent the testator from making a will as eccentric, as injudicious, or
as unjust as caprice, frivolity, or revenge can dictate. However, as has already been
shown, the unreasonable or unjustice of a will may be considered on the question of
testamentary capacity. (40 Cyc., 1079.)
The testamentary capacity of Dolores Coronel is not disputed in this case.
Passing to the second question, to wit, whether or not the true last will of Dolores Coronel was
expressed in the testament Exhibit A, we will begin with expounding how the idea of making the
aforesaid will here controverted was borne and carried out.
About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney Francisco who
was then her legal adviser and who, considering that in order to make the expression of her last
will more legally valid, though it necessary that the statement be prepared in conformity with the
laws in force at time of the death of the testatrix, and observing that the will Exhibit B lacked the
extrinsic formalities required by Act No. 2645 enacted after its execution, advised Dolores
Coronel that the will be remade. She followed the advice, and Attorney Francisco, after receiving
her instructions, drew the will Exhibit A in accordance therewith, and brought it to the house of
Dolores Coronel for its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the witnesses
and asked her whether the will was in accordance with her wishes. Dolores Coronel answer that
it was, and requested her attorney, Mr. Francisco, to sign the will for her, which the attorney
accordingly did in the presence of the witnesses, who in turn signed it before the testatrix and in
the presence of each other.
Upon the filing of the motion for a rehearing on the first order allowing the probate of the will, the
opponents presented an affidavit of Pablo Bartolome to the effect that, following instructions of
Lorenzo Pecson, he had informed the testatrix that the contents of the will were that she
entrusted Pecson with the distribution of all her property among the relatives of the said Dolores.
But during the new trial Pablo Bartolome, in spite of being present in the court room on the day
of the trial, was not introduced as a witness, without such an omission having been satisfactorily
accounted for.
While it is true that the petitioner was bound to present Pablo Bartolome, being one of the
witnesses who signed the will, at the second hearing when the probate was controverted, yet we
cannot consider this point against the appellee for this was not raised in any of the assignments
of error made by the appellants. (Art. 20, Rules of the Supreme Court.)
On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to prove
before the court the statement by him in his affidavit, since it was their duty to prove what they
alleged, which was that Dolores Coronel had not understood the true contents of the will Exhibit
A. Having suppressed, without explanation, the testimony of Pablo Bartolome, the presumption
is against the opponents and that is, that such a testimony would have been adverse had it been
produced at the hearing of the case before the court. (Sec 334, subsec. 5, Code of Civil
Procedure.)
The opponents call our attention to the fourth clause of the document which says: "I name and
appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this
my will, without bond. Should he not be able to discharge his duties as such executor for any
reason whatsoever, I name and appoint as a substitute executor my grandson Victor Pecson,
resident of the town of Betis, without requiring him to give bond," and contend that this clause is
repugnant to the institution of Lorenzo Pecson as sole beneficiary of all her estate, for if such
was the intention of the testatrix, there would have been no necessity of appointing an executor,
nor any reason for designating a substitute in case that the first one should not be able to
discharge his duties, and they perceived in this clause the idea which, according to them, was
not expressed in the document, and which was that Pecson was simply to be a mere executor
entrusted with the distribution to the estate among the relatives of the testatrix, and that should
he not be able to do so, this duty would devolved upon his substitutes.
But it is not the sole duty of an executor to distribute the estate, which in estate succession, such
as the instant case, has to be distributed with the intervention of the court. All executor has,
besides, other duties and general and special powers intended for the preservation, defense,
and liquidation of the estate so long as the same has not reached, by order of the court, the
hands of those entitled thereto.
The fact that Dolores Coronel foresaw the necessity of an executor does not imply a negation of
her desire to will all her estate to Lorenzo Pecson. It is to be noted, furthermore, that in the will, it
was ordered that her body be given a burial in accordance with her social standing and she had
a perfect right to designate a person who should see to it that this order was complied with. One
of the functions of an executor is the fulfillment of what is ordained in the will.
It is argued that the will of the testatrix was to will her estate to her blood relatives, for such was
the promise made to Maria Coronel, whom Rosario Coronel tends to corroborate. We do not find
such a promise to have been sufficiently proven, and much less to have been seriously made
and coupled with a positive intention on the part of Dolores Coronel to fulfill the same. In the
absence of sufficient proof of fraud, or undue influence, we cannot take such a promise into
account, for even if such a promise was in fact made, Dolores Coronel could retract or forget it
afterwards and dispose of her estate as she pleased. Wills themselves, which contain more than
mere promises, are essentially revocable.
It is said that the true will of Dolores Coronel not expressed in the will can be inferred from the
phrase used by Jose M. Reyes in his deposition when speaking of the purpose for which
Lorenzo Pecson was to receive the estate, to wit:
in order that the latter might dispose of the estate in the most appropriate manner
Weight is given to this phrase from the circumstance that its author was requested by Attorney
Francisco to explain the contents of Exhibit B and had acted as interpreter between Dolores
Coronel and Attorney Francisco at their interviews previous to the preparation of Exhibit A, and
had translated into the Pampango dialect this last document, and, lastly, was present at the
execution of the will in question.
The disputed phrase "in order that the latter might dispose of the estate in the most appropriate
manner" was used by the witness Reyes while sick in a hospital and testifying in the course of
the taking of his deposition.
The appellants interpret the expression "dispose in the most appropriate manner" as meaning to
say "distribute it among the heirs." Limiting ourselves to its meaning, the expression is a broad
one, for the disposition may be effected in several and various ways, which may not necessarily
be a "distribution among the heirs," and still be a "disposition in the most appropriate manner."
"To dispose" is not the same as "to distribute."
To judge correctly the import of this phrase, the circumstances under which it was used must be
taken into account in this particular instance. The witness Reyes, the author of the phrase, was
not expressing his own original ideas when he used it, but was translating into Spanish what
Dolores Coronel had told him. According to the facts, the said witness is not a Spaniard, that is
to say, the Spanish language is not his native tongue, but, perhaps, the Pampango dialect. It is
an admitted fact based on reason and experience that when a person translates from one
language to another, it is easier for him to express with precision and accuracy when the version
is from a foreign language to a native one than vice-versa. The witness Reyes translated from
the Pampango dialect, which must be more familiar to him, to the Spanish language which is not
his own tongue. And judging from the language used by him during his testimony in this case, it
cannot be said that this witness masters the Spanish language. Thus is explained the fact that
when asked to give the reason for the appointment of an executor in the will, he should say at
the morning session that "Dolores Coronel did appoint Don Lorenzo Pecson and in his default,
Victor Pecson, to act during her lifetime, but not after he death," which was explained at the
afternoon session by saying "that Dolores Coronel did appoint Don Lorenzo Pecson executor of
all her estate during his lifetime and that in his default, either through death or incapacity, Mr.
Victor Pecson was appointed executor." Taking into account all the circumstances of this
witness, there is ground to attribute his inaccuracy as to the discharge of the duties of an
executor, not to ignorance of the elementary rule of law on the matter, for the practice of which
he was qualified, but to a non-mastery of the Spanish language. We find in this detail of
translation made by the witness Reyes no sufficient reason to believe that the will expressed by
Dolores Coronel at the said interview with Attorney Francisco was to appoint Lorenzo Pecson
executor and mere distributor of her estate among her heirs.
As to whether or not the burden of proof was on the petitioner to establish that he was the sole
legatee to the exclusion of the relatives of Dolores Coronel, we understand that it was not his
duty to show the reasons which the testatrix may have had for excluding her relatives from her
estate, giving preference to him. His duty was to prove that the will was voluntary and authentic
and he, who alleges that the estate was willed to another, has the burden of proving his
allegation.
Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson
appear in the will as sole beneficiary. However, after an examination of all the proceedings had,
we cannot find anything in the behavior of this lawyer, relative to the preparation and execution
of the will, that would justify an unfavorable conclusion as to his personal and professional
conduct, nor that he should harbor any wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other
than the last one, Exhibit B (in the drawing of which he does not appear to her intervened), so
that the instrument might be executed with all the new formalities required by the laws then in
force; nor in the preparation of the new will substantially in accordance with the old one; nor in
the selection of attesting witnesses who were persons other than the relatives of Dolores
Coronel. Knowing, as he did, that Dolores was excluding her blood relatives from the inheritance,
in spite of her having been asked by him whether their exclusion was due to a mere
inadvertence, there is a satisfactory explanation, compatible with honorable conduct, why said
attorney should prescind from such relatives in the attesting of the will, to the end that no
obstacle be placed in the way to the probating thereof.
The fact that this attorney should presume that Dolores was to ask him to sign the will for her
and that he should prepare it containing this detail is not in itself fraudulent. There was in this
case reason so to presume, and it appears that he asked her, through Pablo Bartolome, whom
she wanted to sign the document in her stead.
No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in the will,
because the latter was already his client at the execution of said will. Attorney Francisco denied
this fact, which we cannot consider proven after examining the evidence.
The conduct observed by this attorney after the death of Dolores Coronel in connection with the
attempted arrangement between Lorenzo Pecson and the opponents, does not, in our opinion,
constitute any data leading to the conclusion that an heir different from the true one intended by
the testatrix should have been fraudulently made to appear instituted in the will exhibit A. His
attitude towards the opponents, as can be gathered from the proceedings and especially from
his letter Exhibit D, does not show any perverse or fraudulent intent, but rather a conciliatory
purpose. It is said that such a step was well calculated to prevent every possible opposition to
the probate of the will. Even admitting that one of his objects in entering into such negotiations
was to avoid every possible to the probate of the will, such object is not incompatible with good
faith, nor does it necessarily justify the inference that the heir instituted in the instrument was not
the one whom the testatrix wanted appointed.
The appellants find rather suspicious the interest shown by the said attorney in trying to
persuade Lorenzo Pecson to give them some share of the estate. These negotiations were not
carried out by the attorney out of his own initiative, but at the instance of the same opponent,
Agustin Coronel, made by the latter in his own behalf and that of his coopponents.
As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he should have
tried, through fraud or any undue influence, to frustrate the alleged intention of the testatrix to
leave her estate to her blood relatives. The opponents insinuate that Lorenzo Pecson employed
Attorney Francisco to carry out his reproachable designs, but such depraved instrumentality was
not proven, nor was it shown that said lawyer, or Lorenzo Pecson, should have contrived or put
into execution any condemnable plan, nor that both should have conspired for illegal purposes at
the time of the preparation and execution of the will Exhibit A.
Although Norberto Paras testified having heard, when the will was being read to Dolores
Coronel, the provision whereby the estate was ordered distributed among the heirs, the
preponderance of the evidence is to the effect that said Norberto Paras was not present at such
reading of the will. Appellant do not insist on the probative force of the testimony of this witness,
and do not oppose its being stricken out.
The data furnished by the case do not show, to our mind, that Dolores Coronel should have had
the intention of giving her estate to her blood relatives instead of to Lorenzo Pecson at the time
of the execution of the will Exhibit A, nor that fraud or whatever other illegal cause or undue
influence should have intervened in the execution of said testament. Neither fraud nor evil is
presumed and the record does not show either.
Turning to the second assignment of error, which is made to consist in the will having been
probated in spite of the fact that the attestation clause was not in conformity with the provision of
section 618 of the Code of Civil Procedure, as amended by Act No. 2645, let us examine the
tenor of such clause which literally is as follows:
The foregoing document was executed and declared by Dolores Coronel to be her last
will testament in our presence, and as testatrix does not know how to write her name,
she requested Vicente J. Francisco to sign her name under her express direction in our
presence at the foot and on the left margin of each and every sheet hereof. In testimony
whereof, each of us signed these presents in the presence of others of the testatrix at the
foot hereof and on the margin of each and everyone of the two pages of which this
document is composed. These sheets are numbered correlatively with the words "one
and "two on the upper part of the face thereof.
(Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los Santos, Mariano
L. Crisostomo, Pablo Bartolome, Marcos de la Cruz, Damian Crisostomo."
Appellants remark that it is not stated in this clause that the will was signed by the witnesses in
the presence of the testatrix and of each other, as required by section 618 of the Code of Civil
Procedure, as amended, which on this particular point provides the following:
 The attestation shall state the number of sheets or pages used, upon which the will is
written, and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence of
three witnesses, and the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.
Stress is laid on the phrase used in the attestation clause above copied, to wit:
each of us signed in the presence of others.
Two interpretations can absolutely be given here to the expression "of others." One, that
insinuated by the appellants, namely, that it is equivalent to "of other persons," and the other,
that contended by the appellee, to wit, that the phrase should be held to mean "of the
others," the article "the" having inadvertently been omitted.
Should the first interpretation prevail and "other persons" be taken to mean persons different
from the attesting witnesses, then one of the solemnities required by law would be lacking.
Should the second be adopted and "of others" construed as meaning the other witnesses to the
will, then the law would have been complied with in this respect.
Including the concomitant words, the controverted phrase results thus: "each of us signed these
presents in the presence of others and of the testatrix."
If we should omit the words "of others and," the expression would be reduced to "each of us
signed these presents in the presence of the testatrix," and the statement that the witnesses
signed each in the presence of the others would be lacking. But as a matter of fact, these
words "of others and" are present. Then, what for are they there? Is it to say that the witnesses
signed in the presence of other persons foreign to the execution of the will, which is completely
useless and to no purpose in the case, or was it for some useful, rational, necessary object, such
as that of making it appear that the witnesses signed the will each in the presence of the others?
The first theory presupposes that the one who drew the will, who is Attorney Francisco, was an
unreasonable man, which is an inadmissible hypothesis, being repugnant to the facts shown by
the record. The second theory is the most obvious, logical and reasonable under the
circumstances. It is true that the expression proved to be deficient. The deficiency may have
been caused by the drawer of the will or by the typist. If by the typist, then it must be presumed
to have been merely accidental. If by the drawer, it is explainable taking into account that
Spanish is not only not the native language of the Filipinos, who, in general, still speak until
nowadays their own dialects, but also that such language is not even the only official language
since several years ago.
In Re will of Abangan (40 Phil., 476), this court said:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will. So when an interpretation already given assures
such ends, any other interpretation whatsoever, that adds nothing but demands more
requisite entirely unnecesary, useless and frustrative of the testator's last will, must be
disregarded.
We believe it to be more reasonable to construe the disputed phrase "of others" as meaning "of
the other witnesses," and that a grammatical or clerical error was committed consisting in the
omission of the article "the".
Grammatical or clerical errors are not usually considered of vital importance when the intention is
manifest in the will.
The court may correct clerical mistakes in writing, and disregard technical rules of
grammar as to the construction of the language of the will when it becomes necessary
for it to do so in order to effectuate the testators manifest intention as ascertained from
the context of the will. But unless a different construction is so required the ordinary rules
of grammar should be adhered to in construing the will. (40 Cyc., 1404).
And we understand that in the present case the interpretation we adopt is imperative, being the
most adequate and reasonable.
The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided by this
court and invoked by the appellants, refers so far as pertinent to the point herein at issue, to an
attestation clause wherein the statement that the witnesses signed the will in the presence of
each other is totally absent. In the case at bar, there is the expression "in the presence of
others" whose reasonable interpretation is, as we have said, "in the presence of the other
witnesses." We do not find any party between the present case and that of Re Estate of
Geronima Uy Coque above cited.
Finally, we will take up the question submitted by the opponents as to the alleged insufficiency of
the evidence to show that the attesting witnesses Damian Crisostomo and Sotero Dumaual were
present at the execution of the will in controversy. Although this point is raised in the first
assignment of error made by the appellants, and not in the second, it is discussed in this place
because it refers to the very fact of attestation. However, we do not believe it necessary to
analyze in detail the evidence of both parties on this particular point. The evidence leads us to
the conclusion that the two witnesses aforementioned were present at the execution and signing
of the will. Such is also the conclusion of the trial judge who, in this respect, states the following,
in his decision:
As to the question of whether or not the testatrix and witnesses signed the document Exhibit A in
accordance with the provisions of law on the matter, that is, whether or not the testatrix signed
the will, or caused it to be signed, in the presence of the witnesses, and the latter in turn signed
in her presence and that of each other, the court, after observing the demeanor of the witnesses
for both parties, is of the opinion that those for the petitioner spoke the truth. It is neither
probable nor likely that a man versed in the law, such as Attorney Francisco, who was present at
the execution of the will in question, and to whose conscientiousness in the matter of compliance
with all the extrinsic formalities of the execution of a will, and to nothing else, was due the fact
that the testatrix had cancelled her former will (Exhibit B) and had new one (Exhibit A) prepared
and executed, should have consented the omission of formality compliance with which would
have required little or no effort; namely, that of seeing to it that the testatrix and the attesting
witnesses were all present when their respective signatures were affixed to the will." And the
record does not furnish us sufficient ground for deviating from the line reasoning and findings of
the trial judge.
In conclusion we hold that the assignments of error made by the appellants are not supported by
the evidence of record.
The judgment appealed from if affirmed with costs against the appellants. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE PARISH
PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA
ESCOBAR DE FAUSTO, respondents-appellees.
D. Tañedo, Jr. for appellants.
J. Palanca, Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or enforceability of a devise of ricelands located at
Guimba, Nueva Ecija, with a total area of around forty- four hectares That devise was made in
the will of the late Father Pascual Rigor, a native of Victoria Tarlac, in favor of his nearest male
relative who would study for the priesthood.
The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this Court
from the decision of the Court of Appeals affirming the order of the probate court declaring that
the said devise was inoperative (Rigor vs. Parish Priest of the Roman Catholic Church of
Victoria, Tarlac, CA-G.R. No. 24319-R, August 1, 1963).
The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9,
1935, leaving a will executed on October 29, 1933 which was probated by the Court of First
Instance of Tarlac in its order of December 5, 1935. Named as devisees in the will were the
testators nearest relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina Rigor-
Manaloto and Nestora Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato
Gamalinda.
In addition, the will contained the following controversial bequest (paragraphing supplied to
facilitate comprehension of the testamentary provisions):
Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros situados
en el municipiooo de Guimba de la provinciaaa de NUEVA ECIJA, cuyo num. de
CERTIFICADO DE TRANSFERENCIA DE TITULO SON; — Titulo Num. 6530,
mide 16,249 m. cuadrados de superficie Titulo Num. 6548, mide 242,998 m.
cuadrados de superficie y annual 6525, mide 62,665 m. cuadrados de superficie;
y Titulo Num. 6521, mide 119,251 m. cuadrados de superficie; a cualquier
pariente mio varon mas cercano que estudie la carrera eclesiatica hasta
ordenarse de Presbiterado o sea Sacerdote; las condiciones de estate legado
son;
(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de
este legado;
(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a
gozar y administrar de este legado al principiar a curzar la Sagrada Teologio, y
ordenado de Sacerdote, hasta su muerte; pero que pierde el legatario este
derecho de administrar y gozar de este legado al dejar de continuar sus estudios
para ordenarse de Presbiterado (Sacerdote).
Que el legatario una vez Sacerdote ya estara obligado a celebrar cada año
VEINTE (20) Misas rezadas en sufragio de mi alma y de mis padres difuntos, y si
el actual legatario, quedase excomulgado, IPSO FACTO se le despoja este
 legado, y la administracion de esto pasara a cargo del actual Parroco y sus
sucesores de la Iglecia Catolica de Victoria, Tarlac. 6 4 . 7 9
5 5 2 3 0.
4 - 9 0 0
Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba 8 C 9 0
queda expresado, pasara la administracion de este legado a cargo del actual 8
Parroco Catolico y sus sucesores, de Victoria, Tarlac.
T 3 6 1 1,
El Parroco administrador de estate legado, acumulara, anualmente todos los - 6 . 8 8
productos que puede tener estate legado, ganando o sacando de los productos 6 7 2 7 8
anuales el CINCO (5) por ciento para su administracion, y los derechos 5 0 6 3 0.
correspondientes de las VEINTE (20) Misas rezadas que debiera el Parroco 2 6 6 0
celebrar cada año, depositando todo lo restante de los productos de estate 5 5 0
legado, en un banco, a nombre de estate legado.
T 3 1 1 3,
To implement the foregoing bequest, the administratix in 1940 submitted a project containing the - 6 1 8 5
following item: 6 6 . 7 8
5 6 9 3 0.
5. LEGACY OF THE CHURCH 2 2 3 0
1 5 0
That it be adjudicated in favor of the legacy purported to be given to the nearest 1
male relative who shall take the priesthood, and in the interim to be administered
by the actual Catholic Priest of the Roman Catholic Church of Victoria, Tarlac,
Philippines, or his successors, the real properties hereinbelow indicated, to wit: Total amount and value — 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition, directed
T L A T A
i that after payment of the obligations of the estate (including the sum of P3,132.26 due to the
t o r a ss church of the Victoria parish) the administratrix should deliver to the devisees their respective
l t e x . shares.
e
N
N a D V
o o in e al It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning
. . H c u and implications of Father Rigor's bequest to his nearest male relative who would study for the
a . e priesthood. Inasmuch as no nephew of the testator claimed the devise and as the administratrix
s. and the legal heirs believed that the parish priest of Victoria had no right to administer the
ricelands, the same were not delivered to that ecclesiastic. The testate proceeding remained
T 3 1 1 P pending.
- 6 . 8 3
6 6 6 7 4 About thirteen years after the approval of the project of partition, or on February 19, 1954, the
5 3 2 4 0. parish priest of Victoria filed in the pending testate proceeding a petition praying for the
3 4 0 0 appointment of a new administrator (succeeding the deceased administration Florencia Rigor),
0 9 0 who should deliver to the church the said ricelands, and further praying that the possessors
thereof be ordered to render an accounting of the fruits. The probate court granted the petition. A
T 3 2 1 7, new administrator was appointed. On January 31, 1957 the parish priest filed another petition for
- 4 4 8 2 the delivery of the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying that
the bequest be d inoperative and that they be adjudged as the persons entitled to the said
ricelands since, as admitted by the parish priest of Victoria, "no nearest male relative of" the
testator "has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal). That petition
was opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through Judge Bernabe de Aquino,
declared the bequest inoperative and adjudicated the ricelands to the testator's legal heirs in his
order of June 28, 1957. The parish priest filed two motions for reconsideration.
Judge De Aquino granted the respond motion for reconsideration in his order of December 10,
1957 on the ground that the testator had a grandnephew named Edgardo G. Cunanan (the
grandson of his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit
Fathers in Quezon City. The administrator was directed to deliver the ricelands to the parish
priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father Rigor
had created a testamentary trust for his nearest male relative who would take the holy orders but
that such trust could exist only for twenty years because to enforce it beyond that period would
violate "the rule against perpetuities. It ruled that since no legatee claimed the ricelands within
twenty years after the testator's death, the same should pass to his legal heirs, citing articles 888
and 912(2) of the old Civil Code and article 870 of the new Civil Code.
The parish priest in this appeal contends that the Court of Appeals erred in not finding that the
testator created a public charitable trust and in not liberally construing the testamentary
provisions so as to render the trust operative and to prevent intestacy.
As refutation, the legal heirs argue that the Court of Appeals d the bequest inoperative because
no one among the testator's nearest male relatives had studied for the priesthood and not
because the trust was a private charitable trust. According to the legal heirs, that factual finding
is binding on this Court. They point out that appellant priest's change of theory cannot be
countenanced in this appeal .
In this case, as in cases involving the law of contracts and statutory construction, where the
intention of the contracting parties or of the lawmaking body is to be ascertained, the primary
issue is the determination of the testator's intention which is the law of the case (dicat testor et
erit lex. Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L-28734,
March 28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter of testaments. When his
intention is clearly and precisely expressed, any interpretation must be in accord with the plain
and literal meaning of his words, except when it may certainly appear that his intention was
different from that literally expressed (In re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of wills." It is "the life and soul of
a will It is "the first greatest rule, the sovereign guide, the polestar, in giving effect to a will". (See
Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that "the testator's intention is to
be ascertained from the words of the wilt taking into consideration the circumstances under
which it was made", but excluding the testator's oral declarations as to his intention (Art. 789,
Civil Code of the Philippines).
To ascertain Father Rigor's intention, it may be useful to make the following re-statement of the
provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest male relatives who would pursue an
ecclesiastical career until his ordination as a priest.
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his studies in sacred theology could enjoy and administer
the ricelands, and once ordained as a priest, he could continue enjoying and administering the
same up to the time of his death but the devisee would cease to enjoy and administer the
ricelands if he discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to celebrate every year twenty
masses with prayers for the repose of the souls of Father Rigor and his parents.
5. That if the devisee is excommunicated, he would be divested of the legacy and the
administration of the riceland would pass to the incumbent parish priest of Victoria and his
successors.
6. That during the interval of time that there is no qualified devisee as contemplated above, the
administration of the ricelands would be under the responsibility of the incumbent parish priest of
Victoria and his successors, and
7. That the parish priest-administrator of the ricelands would accumulate annually the products
thereof, obtaining or getting from the annual produce five percent thereof for his administration
and the fees corresponding to the twenty masses with prayers that the parish priest would
celebrate for each year, depositing the balance of the income of the devise in the bank in the
name of his bequest.
From the foregoing testamentary provisions, it may be deduced that the testator intended to
devise the ricelands to his nearest male relative who would become a priest, who was forbidden
to sell the ricelands, who would lose the devise if he discontinued his studies for the priesthood,
or having been ordained a priest, he was excommunicated, and who would be obligated to say
annually twenty masses with prayers for the repose of the souls of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only
in two situations: one, during the interval of time that no nearest male relative of the testator was
studying for the priesthood and two, in case the testator's nephew became a priest and he was
excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no haya legatario acondicionado",
or how long after the testator's death would it be determined that he had a nephew who would
pursue an ecclesiastical vocation. It is that patent ambiguity that has brought about the
controversy between the parish priest of Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the nearest male relative who would
study for the priesthood should be determined. Did the testator contemplate only his nearest
male relative at the time of his death? Or did he have in mind any of his nearest male relatives
at anytime after his death?
We hold that the said bequest refers to the testator's nearest male relative living at the time of his
death and not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the succession opens, except in case of
representation, when it is proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or reasonably construed. To construe them
as referring to the testator's nearest male relative at anytime after his death would render the
provisions difficult to apply and create uncertainty as to the disposition of his estate. That could
not have been his intention.
In 1935, when the testator died, his nearest leagal heirs were his three sisters or second-degree
relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator
specified his nearest male relative, he must have had in mind his nephew or a son of his sister,
who would be his third-degree relative, or possibly a grandnephew. But since he could not
prognosticate the exact date of his death or state with certitude what category of nearest male
relative would be living at the time of his death, he could not specify that his nearest male
relative would be his nephew or grandnephews (the son of his nephew or niece) and so he had
to use the term "nearest male relative".
It is contended by the legal heirs that the said devise was in reality intended for Ramon
Quiambao, the testator's nephew and godchild, who was the son of his sister, Mrs. Quiambao.
To prove that contention, the legal heirs presented in the lower court the affidavit of Beatriz
Gamalinda, the maternal grandmother of Edgardo Cunanan, who deposed that after Father
Rigor's death her own son, Valentin Gamalinda, Jr., did not claim the devise, although he was
studying for the priesthood at the San Carlos Seminary, because she (Beatriz) knew that Father
Rigor had intended that devise for his nearest male relative beloning to the Rigor family (pp. 105-
114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not the one
contemplated in Father Rigor's will and that Edgardo's father told her that he was not consulted
by the parish priest of Victoria before the latter filed his second motion for reconsideration which
was based on the ground that the testator's grandnephew, Edgardo, was studying for the
priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in
1961. For that reason, the legal heirs apprised the Court of Appeals that the probate court's
order adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p.
84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the
testator's intention and which is hearsay, has no probative value. Our opinion that the said
bequest refers to the testator's nephew who was living at the time of his death, when his
succession was opened and the successional rights to his estate became vested, rests on a
judicious and unbiased reading of the terms of the will.
Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la
camera eclesiatica" would include indefinitely anyone of his nearest male relatives born after his
death, he could have so specified in his will He must have known that such a broad provision
would suspend for an unlimited period of time the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de tiempo que no haya legatario
acondicionado"? The reasonable view is that he was referring to a situation whereby his nephew
living at the time of his death, who would like to become a priest, was still in grade school or in
high school or was not yet in the seminary. In that case, the parish priest of Victoria would
administer the ricelands before the nephew entered the seminary. But the moment the testator's
nephew entered the seminary, then he would be entitled to enjoy and administer the ricelands
and receive the fruits thereof. In that event, the trusteeship would be terminated.
Following that interpretation of the will the inquiry would be whether at the time Father Rigor died
in 1935 he had a nephew who was studying for the priesthood or who had manifested his desire
to follow the ecclesiastical career. That query is categorically answered in paragraph 4 of
appellant priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged
therein that "not male relative of the late (Father) Pascual Rigor has ever studied for the
priesthood" (pp. 25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable
conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest of Victoria, as envisaged in the wilt was
likewise inoperative.
The appellant in contending that a public charitable trust was constituted by the testator in is
favor assumes that he was a trustee or a substitute devisee That contention is untenable. A
reading of the testamentary provisions regarding the disputed bequest not support the view that
the parish priest of Victoria was a trustee or a substitute devisee in the event that the testator
was not survived by a nephew who became a priest.
G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA
CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents.

It should be understood that the parish priest of Victoria could become a trustee only when the Salonga, Ordoñez, Yap, Sicat and Associates for petitioners.
testator's nephew living at the time of his death, who desired to become a priest, had not yet
entered the seminary or, having been ordained a priest, he was excommunicated. Those two Ruben Austria for himself and co-petitioners.
contingencies did not arise, and could not have arisen in this case because no nephew of the
testator manifested any intention to enter the seminary or ever became a priest.
De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.
The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code,
Villareal, Almacen, Navarra and Amores for other respondents.
now article 956, which provides that if "the bequest for any reason should be inoperative, it shall
be merged into the estate, except in cases of substitution and those in which the right of
accretion exists" ("el legado ... por qualquier causa, no tenga efecto se refundira en la masa de
la herencia, fuera de los casos de sustitucion y derecho de acrecer").
CASTRO, J.:
This case is also covered by article 912(2) of the old Civil Code, now article 960 (2), which
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal
provides that legal succession takes place when the will "does not dispose of all that belongs to
(Special Proceedings 2457) a petition for probate, ante mortem, of her last will and testament.
the testator." There being no substitution nor accretion as to the said ricelands the same should
The probate was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and
be distributed among the testator's legal heirs. The effect is as if the testator had made no
Lauro Austria Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia.
disposition as to the said ricelands.
This opposition was, however, dismissed and the probate of the will allowed after due hearing.
The Civil Code recognizes that a person may die partly testate and partly intestate, or that there
The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the
may be mixed succession. The old rule as to the indivisibility of the testator's win is no longer
respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz-
valid. Thus, if a conditional legacy does not take effect, there will be intestate succession as to
Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted
the property recovered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
children.
We find no merit in the appeal The Appellate Court's decision is affirmed. Costs against the
On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The
petitioner.
respondent Perfecto Cruz was appointed executor without bond by the same court in
accordance with the provisions of the decedent's will, notwithstanding the blocking attempt
SO ORDERED pursued by the petitioner Ruben Austria.

Republic of the Philippines Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in
SUPREME COURT intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that
Manila the five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in
accordance with law, in effect rendering these respondents mere strangers to the decedent and
EN BANC without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the
court a quo allowed the petitioners' intervention by its order of December 22, 1959, couched in
broad terms, as follows: "The Petition in Intervention for Partition filed by the above-named
oppositors [Ruben Austria, et al.,] dated November 5, 1959 is hereby granted."
In the meantime, the contending sides debated the matter of authenticity or lack of it of the
several adoption papers produced and presented by the respondents. On motion of the
petitioners Ruben Austria, et al., these documents were referred to the National Bureau of
Investigation for examination and advice. N.B.I. report seems to bear out the genuineness of the
documents, but the petitioners, evidently dissatisfied with the results, managed to obtain a
preliminary opinion from a Constabulary questioned-document examiner whose views
undermine the authenticity of the said documents. The petitioners Ruben Austria, et al., thus
moved the lower court to refer the adoption papers to the Philippine Constabulary for further
study. The petitioners likewise located former personnel of the court which appeared to have
granted the questioned adoption, and obtained written depositions from two of them denying any
knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after they were allowed to intervene, the petitioners
Ruben Austria, let al., moved the lower court to set for hearing the matter of the genuineness of
the adoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by
the court for hearing arrived, however, the respondent Benita Cruz-Meñez who entered an
appearance separately from that of her brother Perfecto Cruz, filed on February 28, 1963 a
motion asking the lower court, by way of alternative relief, to confine the petitioners' intervention,
should it be permitted, to properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides
subsequently submitted their respective memoranda, and finally, the lower court issued an order
on June 4, 1963, delimiting the petitioners' intervention to the properties of the deceased which
were not disposed of in the will.
The petitioners moved the lower court to reconsider this latest order, eliciting thereby an
opposition, from the respondents. On October 25, 1963 the same court denied the petitioners'
motion for reconsideration.
A second motion for reconsideration which set off a long exchange of memoranda from both
sides, was summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25,
1963 and the order of April 21, 1964, all restricting petitioners' intervention to properties that
were not included in the decedent's testamentary dispositions.
The uncontested premises are clear. Two interests are locked in dispute over the bulk of the
estate of the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo
Austria-Benta and Lauro Austria Mozo, three of a number of nephews and nieces who are
concededly the nearest surviving blood relatives of the decedent. On the other side are the
respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz
and Luz Cruz-Salonga, all of whom heirs in the will of the deceased Basilia, and all of whom
claim kinship with the decedent by virtue of legal adoption. At the heart of the controversy is
Basilia's last will — immaculate in its extrinsic validity since it bears the imprimatur of duly
conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of the tie which the
respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The
lower court had, however, assumed, by its orders in question, that the validity or invalidity of the
adoption is not material nor decisive on the efficacy of the institution of heirs; for, even if the
adoption in question were spurious, the respondents Perfecto Cruz, et al., will nevertheless
succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling
apparently finds support in article, 842 of the Civil Code which reads:
One who has no compulsory heirs may dispose of by will all his estate or any part
of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs.
The lower court must have assumed that since the petitioners nephews and niece are not
compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling
testamentary disposition. The petitioners' interest is confined to properties, if any, that have not
been disposed of in the will, for to that extent intestate succession can take place and the
question of the veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire estate should
descend to them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied
in the decedent's will. They have thus raised squarely the issue of whether or not such institution
of heirs would retain efficacy in the event there exists proof that the adoption of the same heirs
by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
The statement of a false cause for the institution of an heir shall be considered as
not written, unless it appears from the will that the testator would not have made
such institution if he had known the falsity of such cause.
Coming closer to the center of the controversy, the petitioners have called the attention of the
lower court and this Court to the following pertinent portions of the will of the deceased which
recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking
itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto,
Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga
ari-ariang maiiwan, sa kaparaanang sumusunod:
A.—Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto,
Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na parepareho
ang kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang
kanilang sapilitang mana (legiti[ma]), ang kalahati (½) ng aking kaparti sa lahat
ng aming ari-ariang gananciales ng aking yumaong asawang Pedro Cruz na
napapaloob sa Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng
Rizal at itinutukoy sa No. 1 ng parafo IV ng testamentong ito, ang kalahati (½) ng
mga lagay na lupa at palaisdaan na nasa Obando at Polo, Bulacan, na namana
ko sa aking yumaong ama na si Calixto Austria, at ang kalahati (½) ng ilang
lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana sa yumao
kong kapatid na si Fausto Austria.
The tenor of the language used, the petitioners argue, gives rise to the inference that the late
Basilia was deceived into believing that she was legally bound to bequeath one-half of her entire
estate to the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further
contend that had the deceased known the adoption to be spurious, she would not have instituted
the respondents at all — the basis of the institution being solely her belief that they were
compulsory heirs. Proof therefore of the falsity of the adoption would cause a nullity of the
institution of heirs and the opening of the estate wide to intestacy. Did the lower court then abuse
its discretion or act in violation of the rights of the parties in barring the petitioners nephews and
niece from registering their claim even to properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following
requisites must concur: First, the cause for the institution of heirs must be stated in the
will; second, the cause must be shown to be false; and third, it must appear from the face of the
will that the testator would not have made such institution if he had known the falsity of the
cause.
The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana"
(compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix's belief that under the law she could not do
otherwise. If this were indeed what prompted the testatrix in instituting the respondents, she did
not make it known in her will. Surely if she was aware that succession to the legitime takes place
by operation of law, independent of her own wishes, she would not have found it convenient to
name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on
legitimes should very well indicate her complete agreement with that statutory scheme. But even
this, like the petitioners' own proposition, is highly speculative of what was in the mind of the
testatrix when she executed her will. One fact prevails, however, and it is that the decedent's will
does not state in a specific or unequivocal manner the cause for such institution of heirs. We
cannot annul the same on the basis of guesswork or uncertain implications.
And even if we should accept the petitioners' theory that the decedent instituted the respondents
Perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the
false assumption that her adoption of these respondents was valid, still such institution must
stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false
cause the testator may have written in his will for the institution of heirs. Such institution may be
annulled only when one is satisfied, after an examination of the will, that the testator clearly
would not have made the institution if he had known the cause for it to be false. Now, would the
late Basilia have caused the revocation of the institution of heirs if she had known that she was
mistaken in treating these heirs as her legally adopted children? Or would she have instituted
them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this point or at best is
vague and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were
borrowed from the language of the law on succession and were used, respectively, to describe
the class of heirs instituted and the abstract object of the inheritance. They offer no absolute
indication that the decedent would have willed her estate other than the way she did if she had
known that she was not bound by law to make allowance for legitimes. Her disposition of the free
portion of her estate (libre disposicion) which largely favored the respondent Perfecto Cruz, the
latter's children, and the children of the respondent Benita Cruz, shows a perceptible inclination
on her part to give to the respondents more than what she thought the law enjoined her to give to
them. Compare this with the relatively small devise of land which the decedent had left for her
blood relatives, including the petitioners Consuelo Austria-Benta and Lauro Mozo and the
children of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et
al. from the inheritance, then the petitioners and the other nephews and nieces would succeed to
the bulk of the testate by intestacy — a result which would subvert the clear wishes of the
decedent.
Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in
the Civil Code: "The words of a will are to receive an interpretation which will give to every
expression some effect, rather than one which will render any of the expressions inoperative;
and of two modes of interpreting a will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the will evinces an
intention on the part of the testator to dispose of practically his whole estate,2 as was done in this
case. Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the
testator allowed to prevail, that we could even vary the language of the will for the purpose of giving it
effect.3 A probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was
possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or
undue influence. In this situation, it becomes our duty to give full expression to her will. 4
At all events, the legality of the adoption of the respondents by the testatrix can be assailed only
in a separate action brought for that purpose, and cannot be the subject of a collateral attack.5
To the petitioners' charge that the lower court had no power to reverse its order of December 22,
1959, suffice it to state that, as borne by the records, the subsequent orders complained of
served merely to clarify the first — an act which the court could legally do. Every court has the
inherent power to amend and control its processes and orders so as to make them conformable
to law and justices.6 That the court a quo has limited the extent of the petitioners' intervention is also
within its powers as articulated by the Rules of Court.7
ACCORDINGLY, the present petition is denied, at petitioners cost.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid
and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios,
Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years
before her demise. Petitioner prayed that said will be admitted to probate and that letters of
administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and
mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will.
Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal
heir of the deceased, oppositors — who are compulsory heirs of the deceased in the direct
ascending line — were illegally preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss. 1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in question is a complete nullity and
will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the
petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the
probate of a will. The court's area of inquiry is limited — to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity,
and the compliance with the requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the court. Said court at this stage of
the proceedings — is not called upon to rule on the intrinsic validity or efficacy of the provisions
of the will, the legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or
not the will should be allowed probate. For them, the meat of the case is the intrinsic validity of
the will. Normally, this comes only after the court has declared that the will has been duly
authenticated.2 But petitioner and oppositors, in the court below and here on appeal, travelled on
the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the record,
in the event of probate or if the court rejects the will, probability exists that the case will come up
once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste
of time, effort, expense, plus added anxiety. These are the practical considerations that induce
us to a belief that we might as well meet head-on the issue of the validity of the provisions of the
will in question.3 After all, there exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that
the will is a complete nullity. This exacts from us a study of the disputed will and the applicable
statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a
certain amount of property, do hereby give, devise, and bequeath all of the property which I may
have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga,
Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen
hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and legacies shall be valid
insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the
Civil Code of Spain of 1889, which is similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at
the time of the execution of the will or born after the death of the testator, shall void the
institution of heir; but the legacies and betterments4 shall be valid, in so far as they are
not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a
necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra
siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le
deshereda expresamente ni se le asigna parte alguna de los bienes, resultando privado
de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita
el testador a uno cualquiera de aquellos a quienes por su muerte corresponda la
herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision
sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem
before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343,
204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions of divorce
decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot
out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S.
2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to
nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771,
774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them:
They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither
were they expressly disinherited. This is a clear case of preterition. Such preterition in the words
of Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a este
ordenamiento referring to the mandate of Article 814, now 854 of the Civil Code.9 The one-
sentence will here institutes petitioner as the sole, universal heir — nothing more. No specific
legacies or bequests are therein provided for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo
o en parte? No se añade limitacion alguna, como en el articulo 851, en el que se
expresa que se anulara la institucion de heredero en cuanto prejudique a la legitima del
deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que este
articulo como especial en el caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion
de uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion
 intestada total o parcial. Sera total, cuando el testador que comete la pretericion,
hubiese dispuesto de todos los bienes por titulo universal de herencia en favor de los
herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del
precepto legal del art. 814, al determinar, como efecto de la pretericion, el de que
"anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results in totally
abrogating the will. Because, the nullification of such institution of universal heir — without any
other testamentary disposition in the will — amounts to a declaration that nothing at all was
written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential
interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the statute.
On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supreme,
correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos
equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el
hecho o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o
supuesto, y consiguientemente, en un testamento donde falte la institucion, es obligado
llamar a los herederos forzosos en todo caso, como habria que llamar a los de otra
clase, cuando el testador no hubiese distribudo todos sus bienes en legados, siendo
tanto mas obligada esta consecuencia legal cuanto que, en materia de testamentos,
sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no basta que sea
conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un
heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a
la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la
ley, pero no autoriza a una interpretacion contraria a sus terminos y a los principios que
informan la testamentifaccion, pues no porque parezca mejor una cosa en el terreno del
Derecho constituyente, hay razon para convereste juicio en regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding,
"the devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises
merit consideration only when they are so expressly given as such in a will. Nothing in Article
854 suggests that the mere institution of a universal heir in a will — void because of preterition
— would give the heir so instituted a share in the inheritance. As to him, the will is inexistent.
There must be, in addition to such institution, a testamentary disposition granting him bequests
or legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of
the two component parts of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests) "pero
subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion de heredero
... . 13 As Manresa puts it, annulment throws open to intestate succession the entire inheritance
including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of petitioner as
universal heir. That institution, by itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one
of preterition". 15From this, petitioner draws the conclusion that Article 854 "does not apply to the
case at bar". This argument fails to appreciate the distinction between pretention and
disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, though mentioned, they are neither instituted
as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heir of his share in the legitime for a cause authorized by law. " 17 In
Manresa's own words: "La privacion expresa de la legitima constituye la desheredacion. La
privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman emphasizes the
distinction by stating that disinheritance "es siempre voluntaria"; preterition, upon the other hand,
is presumed to be "involuntaria". 19 Express as disinheritance should be, the same must be
supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits
their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in
which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the
institution of heir". This annulment is in toto, unless in the will there are, in addition, testamentary
dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of
the same Code, such disinheritance shall also "annul the institution of heirs", put only "insofar as
it may prejudice the person disinherited", which last phrase was omitted in the case of
preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of the estate
of which the disinherited heirs have been illegally deprived. Manresa's expressive language, in
commenting on the rights of the preterited heirs in the case of preterition on the one hand and
legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their
legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so
instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case
heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted,
will result in a complete abrogation of Articles 814 and 851 of the Civil Code. If every
case of institution of heirs may be made to fall into the concept of legacies and
betterments reducing the bequest accordingly, then the provisions of Articles 814 and
851 regarding total or partial nullity of the institution, would. be absolutely meaningless
and will never have any application at all. And the remaining provisions contained in said
article concerning the reduction of inofficious legacies or betterments would be a
surplusage because they would be absorbed by Article 817. Thus, instead of construing,
we would be destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision.
With reference to article 814, which is the only provision material to the disposition of this
case, it must be observed that the institution of heirs is therein dealt with as a thing
separate and distinct from legacies or betterments. And they are separate and distinct
not only because they are distinctly and separately treated in said article but because
they are in themselves different. Institution of heirs is a bequest by universal title of
property that is undetermined. Legacy refers to specific property bequeathed by a
particular or special title. ... But again an institution of heirs cannot be taken as a
legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of
the Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the will
before us solely provides for the institution of petitioner as universal heir, and nothing more, the
result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.
PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No.
05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and
its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial
Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered
to dismiss the petition in Special Proceedings No. 591 ACEB No special
pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court, now
Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City
Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to
the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB
(Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his
brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were
instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was
written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner
without objection raised by private respondents. The will contained provisions on burial rites,
payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor
of the testament. On the disposition of the testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and
money which I earned jointly with my wife Rosa Diongson shall all be given by
me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently
residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo
Acain pre-deceased me, all the money properties, lands, houses there in
Bantayan and here in Cebu City which constitute my share shall be given to me
to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores,
Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming
to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the
latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds
for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal
heir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said
motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court, respondents
filed with the Supreme Court a petition for certiorari and prohibition with preliminary injunction
which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court
dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered the
trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special
Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for the
review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents'
Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum
for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the extrinsic
validity of the will sought to be probated and it cannot pass upon the intrinsic
validity thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate.
The preterition mentioned in Article 854 of the New Civil Code refers to preterition
of "compulsory heirs in the direct line," and does not apply to private respondents
who are not compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that
mere institution of a universal heir in the will would give the heir so instituted a
share in the inheritance but there is a definite distinct intention of the testator in
the case at bar, explicitly expressed in his will. This is what matters and should
be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the
petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devisees
and legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall
he effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them
either because they are not mentioned therein, or, though mentioned, they are neither instituted
as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v.
Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the
Civil Code may not apply as she does not ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no
preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854,
Civil code) however, the same thing cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has not been questioned by petitioner
(.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child
and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if
he were a legitimate child of the adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator
and that both adopted child and the widow were deprived of at least their legitime. Neither can it
be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of
the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession
the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado
mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals,
114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and
devises made in the will for they should stand valid and respected, except insofar as the
legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification of such
institution of universal heirs-without any other testamentary disposition in the will-amounts to a
declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the
Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies
nor devises having been provided in the will the whole property of the deceased has been left by
universal title to petitioner and his brothers and sisters. The effect of annulling the "Institution of
heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943])
except that proper legacies and devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a
probate proceeding he must have an interest iii the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of the estate and an interested party is one who
would be benefited by the estate such as an heir or one who has a claim against the estate like a
creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor,
neither a devisee or a legatee there being no mention in the testamentary disposition of any gift
of an individual item of personal or real property he is called upon to receive (Article 782, Civil
Code). At the outset, he appears to have an interest in the will as an heir, defined under Article
782 of the Civil Code as a person called to the succession either by the provision of a will or by
operation of law. However, intestacy having resulted from the preterition of respondent adopted
child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has
no legal standing to petition for the probate of the will left by the deceased and Special
Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned order
is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda.
de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA
308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies
of certiorari and prohibition are not available where the petitioner has the remedy of appeal or
some other plain, speedy and adequate remedy in the course of law (DD Comendador
Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies
to correct a grave abuse of discretion of the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137
[1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court,
the general rule is that the probate court's authority is limited only to the extrinsic validity of the
will, the due execution thereof, the testator's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only
after the Court has declared that the will has been duly authenticated. Said court at this stage of
the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of
the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v.
Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and
Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate
court is not powerless to do what the situation constrains it to do and pass upon certain
provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the
oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate
court acting on the motion held that the will in question was a complete nullity and dismissed the
petition without costs. On appeal the Supreme Court upheld the decision of the probate court,
induced by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And for
aught that appears in the record, in the event of probate or if the court rejects the
will, probability exists that the case will come up once again before us on the
same issue of the intrinsic validity or nullity of the will. Result: waste of time,
effort, expense, plus added anxiety. These are the practical considerations that
induce us to a belief that we might as well meet head-on the issue of the validity
of the provisions of the will in question. After all there exists a justiciable
controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the
surviving spouse was grounded on petitioner's lack of legal capacity to institute the proceedings
which was fully substantiated by the evidence during the hearing held in connection with said
motion. The Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition
deals with the validity of the provisions of the will. Respondent Judge allowed the probate of the
will. The Court held that as on its face the will appeared to have preterited the petitioner the
respondent judge should have denied its probate outright. Where circumstances demand that
intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of
the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court of
Appeals, supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings
No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no
legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow
and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in
an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are
matters properly to be resolved after a hearing on the issues in the course of the trial on the
merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial
court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case to
progress when on its face the will appears to be intrinsically void as petitioner and his brothers
and sisters were instituted as universal heirs coupled with the obvious fact that one of the private
respondents had been preterited would have been an exercise in futility. It would have meant a
waste of time, effort, expense, plus added futility. The trial court could have denied its probate
outright or could have passed upon the intrinsic validity of the testamentary provisions before the
extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra.
The remedies of certiorari and prohibition were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had
the right to resort to the more speedy, and adequate remedies of certiorari and prohibition to
correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court
in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the
existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of
justice, a petition for certiorari may be entertained, particularly where appeal would not afford
speedy and adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned
decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution
dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-47799 June 13, 1941
Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET
AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
Ozamiz & Capistrano for petitioners.
Gullas, Leuterio, Tanner & Laput for respondents.
MORAN, J.:
Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children
named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage
with Ignacia Akutin, five children named Gracia, Godofredo, Violeta, Estela Maria, and Emma.
Getulia, daughter in the first marriage, died on October 2, 1923, that is, a little less than eight
years before the death of said Agripino Neri y Chavez, and was survived by seven children
named Remedios, Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In Agripino Neri's
testament, which was admitted to probate on March 21, 1932, he willed that his children by the
first marriage shall have no longer any participation in his estate, as they had already received
their corresponding shares during his lifetime. At the hearing for the declaration of heirs, the trial
court found, contrary to what the testator had declared in his will, that all his children by the first
and second marriages intestate heirs of the deceased without prejudice to one-half of the
improvements introduced in the properties during the existence of the last conjugal partnership,
which should belong to Ignacia Akutin. The Court of Appeals affirmed the trial court's decision
with the modification that the will was "valid with respect to the two-thirds part which the testator
could freely dispose of. "This judgment of the Court of Appeals is now sought to be reviewed in
this petition for certiorari.
The decisive question here raised is whether, upon the foregoing facts, the omission of the
children of the first marriage annuls the institution of the children of the first marriage as sole
heirs of the testator, or whether the will may be held valid, at least with respect to one-third of the
estate which the testator may dispose of as legacy and to the other one-third which he may
bequeath as betterment, to said children of the second marriage.
The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read in part
as follows:
Disinheritance made without a statement of the cause, or for a cause the truth of which, if
contradicted, is not proven, ... shall annul the institution of the heir in so far as it
prejudices the person disinherited; but the legacies, betterments, and other testamentary
dispositions, in so far as they do no encroach upon the legitime, shall be valid.
The appellate court thus seemed to have rested its judgment upon the impression that the
testator had intended to disinherit, though ineffectively, the children of the first marriage. There is
nothing in the will that supports this conclusion. True, the testator expressly denied them any
share in his estate; but the denial was predicated, not upon the desire to disinherit, but upon the
belief, mistaken though it was, that the children by the first marriage had already received more
than their corresponding shares in his lifetime in the form of advancement. Such belief
conclusively negatives all inference as to any intention to disinherit, unless his statement to that
effect is prove to be deliberately fictitious, a fact not found by the Court of Appeals. The situation
contemplated in the above provision is one in which the purpose to disinherit is clear, but upon a
cause not stated or not proved, a situation which does not obtain in the instant case.
The Court of Appeals quotes Manresa thus:
 En el terreno de los principios, la solucion mas justa del problema que hemos hecho
notar al comentar el articulo, seria distinguir el caso en que el heredero omitido viviese al
otorgarse el testamento, siendo conocida su existencia por el testador, de aquel en que,
o naciese despues, o se ignorase su existencia, aplicando en el primer caso la doctrina
del articulo 851, y en el segundo la del 814. (6 Manresa, 354-355.)
But it must be observed that this opinion is founded on mere principles (en el terreno de los
principios) and not on the express provisions of the law. Manresa himself admits that according
to law, "no existe hoy cuestion alguna en esta materia: la pretericion produce siempre los
mismos efectos, ya se refiera a personas vivas al hacer el testamento o nacidas despues. Este
ultimo grupo solo puede hacer relacion a los descendientes legitimos, siempre que ademas
tengan derecho a legitima." (6 Manresa, 381.)
Appellants, on the other hand, maintain that the case is one of voluntary preterition of four of the
children by the first marriage, and of involuntary preterition of the children by the deceased
Getulia, also of the first marriage, and is thus governed by the provisions of article 814 of the
Civil Code, which read in part as follows:
The preterition of one or all of the forced heirs in the direct line, whether living at the time
of the execution of the will or born after the death of the testator, shall void the institution
of heir; but the legacies and betterments shall be valid, in so far as they are not
inofficious.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, though mentioned, they are neither instituted
as heirs nor are expressly disinherited.(Cf. 6 Manresa, 346.) In the instant case, while the
children of the first marriage were mentioned in the will, they were not accorded any share in the
heriditary property, without expressly being disinherited. It is, therefore, a clear case of preterition
as contended by appellants. The omission of the forced heirs or anyone of them, whether
voluntary or involuntary, is a preterition if the purpose to disinherit is not expressly made or is not
at least manifest.
Except as to "legacies and betterments" which "shall be valid in so far as they are not inofficious"
(art. 814 of the Civil Code), preterition avoids the institution of heirs and gives rise to intestate
succession. (Art. 814, Civil Code; Decisions of the Supreme Court of Spain of June 17, 1908 and
February 27, 1909.) In the instant case, no such legacies or betterments have been made by the
testator. "Mejoras" or betterments must be expressly provided, according to articles 825 and 828
of the Civil Code, and where no express provision therefor is made in the will, the law would
presume that the testator had no intention to that effect. (Cf. 6 Manresa, 479.) In the will here in
question, no express betterment is made in favor of the children by the second marriage; neither
is there any legacy expressly made in their behalf consisting of the third available for free
disposal. The whole inheritance is accorded the heirs by the second marriage upon the mistaken
belief that the heirs by the first marriage have already received their shares. Were it not for this
mistake, the testator's intention, as may be clearly inferred from his will, would have been to
divide his property equally among all his children.
Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without
prejudice to the widow's legal usufruct, with costs against respondents.
THIRD DIVISION
G.R. No. 137287 February 15, 2000
REBECCA VIADO NON, JOSE A. NON and DELIA VIADO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, ALICIA N. VIADO, CHERRI VIADO and FE FIDES
VIADO,respondents.
VITUG, J.:
Petitioners, in their petition for review on certiorari under Rule 45 of the Rules of Court, seek a
reversal of the 29th May 1996 decision of the Court of Appeals, basically affirming that rendered
on 30 April 1991 by the Regional Trial Court ("RTC") of Queron City, Branch 23, adjudicating the
property subject matter of the litigation to respondents. The case and the factual settings found
by the Court of Appeals do not appear to deviate significantly from that made by the trial court.
During their lifetime, the spouses Julian C. Viado and Virginia P. Viado owned several pieces of
property, among them a house and lot located at 147 Isarog Street, La Loma, Quezon City,
covered by Transfer Certificate of Title No. 42682. Virginia P. Viado died on 20 October 1982.
Julian C. Viado died three years later on 15 November 1985. Surviving them were their children
— Nilo Viado, Leah Viado Jacobs, and herein petitioners Rebecca Viado, married to Jose Non,
and Delia Viado. Nilo Viado and Leah Viado Jacobs both died on 22 April 1987. Nilo Viado left
behind as his own sole heirs herein respondents — his wife Alicia Viado and their two children
Cherri Viado and Fe Fides Viado.
Petitioners and respondents shared, since 1977, a common residence at the Isarog property.
Soon, however, tension would appear to have escalated between petitioner Rebecca Viado and
respondent Alicia Viado after the former had asked that the property be equally divided between
the two families to make room for the growing children. Respondents, forthwith, claimed absolute
ownership over the entire property and demanded that petitioners vacate the portion occupied by
the latter. On 01 February 1988, petitioners, asserting co-ownership over the property in
question, filed a case for partition before the Quezon City RTC (Branch 93). 1âwphi1.nêt
Respondents predicated their claim of absolute ownership over the subject property on two
documents — a deed of donation executed by the late Julian Viado covering his one-half
conjugal share of the Isarog property in favor of Nilo Viado and a deed of extrajudicial settlement
in which Julian Viado, Leah Viado Jacobs (through a power of attorney in favor of Nilo Viado)
and petitioner Rebecca Viado waived in favor of Nilo Viado their rights and interests over their
share of the property inherited from Virginia Viado. Both instruments were executed on 26
August 1983 and registered on 07 January 1988 by virtue of which Transfer Certificate of Title
No. 42682 was cancelled and new Transfer Certificate of Title No. 373646 was issued to the
heirs of Nilo Viado.
Petitioners, in their action for partition, attacked the validity of the foregoing instruments,
contending that the late Nilo Viado employed forgery and undue influence to coerce Julian Viado
to execute the deed of donation. Petitioner Rebecca Viado, in her particular case, averred that
her brother Nilo Viado employed fraud to procure her signature to the deed of extrajudicial
settlement. She added that the exclusion of her retardate sister, Delia Viado, in the extrajudicial
settlement, resulted in the latter's preterition that should warrant its annulment. Finally,
petitioners asseverated that the assailed instruments, although executed on 23 August 1983,
were registered only five years later, on 07 January 1988, when the three parties thereto,
namely, Julian Viado, Nilo Viado and Leah Viado Jacobs had already died.
Assessing the evidence before it, the trial court found for respondents and adjudged Alicia Viado
and her children as being the true owners of the disputed property.
On appeal, the Court of Appeals affirmed the decision of the trial court with modification by
ordering the remand of the records of the case to the court a quo for further proceedings to
determine the value of the property and the amount respondents should pay to petitioner Delia
Viado for having been preterited in the deed of extrajudicial settlement.
Petitioners are now before the Supreme Court to seek the reversal of the decision of the Court of
Appeals.
The appellate court ruled correctly.
When Virginia P. Viado died intestate in 1982, her part of the conjugal property, the Isarog
property in question included, was transmitted to her heirs — her husband Julian and their
children Nilo Viado, Rebecca Viado, Leah Viado and Delia Viado. The inheritance, which vested
from the moment of death of the decedent,1 remained under a co-ownership regime2 among the
heirs until partition.3 Every act intended to put an end to indivision among co-heirs and legatees
or devisees would be a partition although it would purport to be a sale, an exchange, a
compromise, a donation or an extrajudicial settlement.4
In debunking the continued existence of a co-ownership among the parties hereto, respondents
rely on the deed of donation and deed of extrajudicial settlement which consolidated the title
solely to Nilo Viado. Petitioners assail the due execution of the documents on the grounds
heretofore expressed.
Unfortunately for petitioners, the issues they have raised boil down to the appreciation of the
evidence, a matter that has been resolved by both the trial court and the appellate court. The
Court of Appeals, in sustaining the court a quo, has found the evidence submitted by petitioners
to be utterly wanting, consisting of, by and large, self-serving testimonies. While asserting that
Nilo Viado employed fraud, forgery and undue influence in procuring the signatures of the parties
to the deeds of donation and of extrajudicial settlement, petitioners are vague, however, on how
and in what manner those supposed vices occurred. Neither have petitioners shown proof why
Julian Viado should be held incapable of exercising sufficient judgment in ceding his rights and
interest over the property to Nilo Viado. The asseveration of petitioner Rebecca Viado that she
has signed the deed of extrajudicial settlement on the mistaken belief that the instrument merely
pertained to the administration of the property is too tenuous to accept. It is also quite difficult to
believe that Rebecca Viado, a teacher by profession, could have misunderstood the tenor of the
assailed document.
The fact alone that the two deeds were registered five years after the date of their execution did
not adversely affect their validity nor would such circumstance alone be indicative of fraud. The
registration of the documents was a ministerial act5 and merely created a constructive notice of
its contents against all third persons.6 Among the parties, the instruments remained completely
valid and binding.
The exclusion of petitioner Delia Viado, alleged to be a retardate, from the deed of extrajudicial
settlement verily has had the effect of preterition. This kind of preterition, however, in the
absence of proof of fraud and bad faith, does not justify a collateral attack on Transfer Certificate
of Title No. 373646. The relief, as so correctly pointed out by the Court of Appeals, instead rests
on Article 1104 of the Civil Code to the effect that where the preterition is not attended by bad
faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value
of the share pertaining to her. Again, the appellate court has thus acted properly in ordering the
remand of the case for further proceedings to make the proper valuation of the isarog property
and ascertainment of the amount due petitioner Delia Viado. 1âwphi1.nêt
WHEREFORE, the instant petition is DENIED, and the decision, dated 29 May 1996, in CA-G.R.
No. 37272 of the Court of Appeals is AFFIRMED. No special pronouncement on costs.
SO ORDERED. Believing that the decedent died intestate, the respondent heirs filed a petition with the Las Piñas
RTC for the partition of the decedent’s estate and the appointment of a special administrator on
July 4, 2003. The case was raffled to Branch 254 and docketed as Sp. Proc. Case No. SP-03-
0060.

On July 11, 2003, the RTC appointed Alfonso Juan O. Olondriz, Jr. as special administrator.

However, on July 28, 2003, Iris Morales filed a separate petition with the RTC alleging that the
decedent left a will dated July 23, 1991. Morales prayed for the probate of the will and for her
appointment as special administratrix. Her petition was also raffled to Branch 254 and docketed
as Sp. Proc. Case No. SP-03-0069.

The pertinent portions of the decedent’s will reads:

SECOND DIVISION
1. Upon my death, IRIS MORALES OLONDRIZ shall be the executor hereof and administrator of
my estate until its distribution in accordance herewith. x x x
February 3, 2016

G.R. No. 198994 2. My entire estate shall be divided into six (6) parts to be distributed equally among and
between (1) IRIS MORALES OLONDRIZ, my children (2) ALFONSO JUAN OLONDRIZ, JR., (3)
ALEJANDRO OLONDRIZ, (4) ISABEL OLONDRIZ, (5) ANGELO OLONDRIZ, and their mother
IRIS MORALES, Petitioner, (6) MARIA ORTEGAS OLONDRIZ, SR.3
vs.
ANA MARIA OLONDRIZ, ALFONSO JUAN OLONDRIZ, JR., ALEJANDRO MORENO
OLONDRIZ, ISABEL ROSA OLONDRIZ and FRANCISCO JAVIER MARIA Notably, the will omitted Francisco Javier Maria Bautista Olondriz, an illegitimate son of the
decedent.
OLONDRIZ, Respondents.
On September 1, 2003, Morales filed a manifestation in Sp. Proc. Case No. SP-03-0060 and
DECISION
moved to suspend the intestate proceedings in order to give way to the probate proceedings
in Sp. Proc. Case No. SP-03-0069. The respondent heirs opposed Morales’ motion for
BRION, J.: suspension and her petition for allowance of the will.

This is a petition for review on certiorari filed by Iris Morales from the May 27, 2011 decision and
October 12, 2011 resolution of the Court of Appeals (CA) in CA-G.R. SP No. 102358.1 The CA
denied Morales' petition for certiorarifrom the Regional Trial Court's (RTC) July 12, 2007 and
October 30, 2007 orders in SP. Proc. No. 03-0060 and SP. Proc. No. 03-0069.2
Antecedents
Alfonso Juan P. Olondriz, Sr. (the decedent) died on June 9, 2003. He was survived by his
widow, Ana Maria Ortigas de Olondriz, and his children: Alfonso Juan O. Olondriz, Jr., Alejandro
Marino O. Olondriz, Isabel Rosa O. Olondriz, Angelo Jose O. Olondriz, and Francisco Javier
Maria Bautista Olondriz. His widow and children are collectively referred to as the respondent
heirs.
On November 27, 2003, the RTC consolidated Sp. Proc. Case No. SP-03-0060 with Sp. Proc.
Case No. SP-03-0069.
On January 6, 2004, the respondent heirs moved to dismiss the probate proceedings because
Francisco was preterited from the will.
On January 10, 2006, Morales agreed to the holding of an evidentiary hearing to resolve the
issue of preterition. Thus, the RTC ordered the parties to submit their factual allegations to
support or negate the existence of preterition. Only the respondent heirs complied with this
order.
After several postponements at the instance of Morales, the reception of evidence for the
evidentiary hearing was scheduled on May 29, 2006. However, Morales failed to appear,
effectively waiving her right to present evidence on the issue of preterition.
On June 23, 2006, the RTC, through Judge Gloria Butay Aglugub, suspended the intestate
proceedings in Sp. Proc. Case No. SP-03-0060 and set the case for probate. The RTC
reasoned that probate proceedings take precedence over intestate proceedings.
The respondent heirs moved for reconsideration of the suspension order but the RTC denied the
motion on September 1, 2006. The RTC also summarily revoked the Letters of Administration
previously issued to Alfonso Jr.
The respondent heirs moved for reconsideration of the summary revocation of the Letters of
Administration. They also moved for the inhibition of Judge Aglugub of Branch 254.
On November 16, 2006, the RTC granted the motion for inhibition. The case was transferred
to Branch 253 presided by Judge Salvador V. Timbang, Jr.
On July 12, 2007, the RTC resolved (1) the respondent heirs’ motion for reconsideration of the
revocation of the Letters of Administration and (2) Morales’ motion to be appointed Special
Administratrix of the estate. The RTC noted that while testacy is preferred over intestacy, courts
will not hesitate to set aside probate proceedings if it appears that the probate of the will might
become an idle ceremony because the will is intrinsically void.
The RTC observed: (1) that Morales expressly admitted that Francisco Javier Maria Bautista
Olondriz is an heir of the decedent; (2) that Francisco was clearly omitted from the will; and (3)
that based on the evidentiary hearings, Francisco was clearly preterited. Thus, the RTC
reinstated Alfonso Jr. as administrator of the estate and ordered the case to proceed in intestacy.
Morales moved for reconsideration which the RTC denied on October 30, 2007, for lack of merit.
On February 7, 2008, Morales filed a petition for certiorari against the orders of the RTC.
Morales alleged that the RTC acted with grave abuse of discretion in proceeding intestate
despite the existence of the will. The petition was docketed as CA-G.R. SP No. 102358.
On May 27, 2011, the CA dismissed Morales’ petition for certiorari. The CA reasoned that while
probate proceedings take precedence over intestate proceedings, the preterition of a compulsory
heir in the direct line annuls the institution of heirs in the will and opens the entire inheritance into
intestate succession.4 Thus, the continuation of the probate proceedings would be superfluous
and impractical because the inheritance will be adjudicated intestate. The CA concluded that the
RTC did not act with grave abuse of discretion.
Morales moved for reconsideration which the CA denied on October 12, 2011. Hence, she filed
the present petition for review on certiorari on December 5, 2011.
The Petition
Morales maintains that the RTC committed grave abuse of discretion when it ordered the case to
proceed intestate because: (1) the probate of a decedent’s will is mandatory; (2) the RTC Branch
254 already ordered the case to proceed into probate; (3) the order setting the case for probate
already attained finality; (3) the probate court cannot touch on the intrinsic validity of the will; and
(4) there was no preterition because Francisco received a house and lot inter vivos as an
advance on his legitime.
The respondent heirs counter: (1) that it is within the RTC’s jurisdiction to reverse or modify an
interlocutory order setting the case for probate; (2) that the petitioner failed to mention that she
did not appear in any of the evidentiary hearings to disprove their allegation of preterition; (3) that
the RTC and the CA both found that Francisco was preterited from the will; and (4) that
Francisco’s preterition annulled the institution of heirs and opened the case into intestacy. They
conclude that the RTC did not exceed its jurisdiction or act with grave abuse of discretion when it
reinstated Alfonso Jr. as the administrator of the estate and ordered the case to proceed
intestate.
Our Ruling
We join the ruling of the CA.
Preterition consists in the omission of a compulsory heir from the will, either because he is not
named or, although he is named as a father, son, etc., he is neither instituted as an heir nor
assigned any part of the estate without expressly being disinherited – tacitly depriving the heir of
his legitime.5 Preterition requires that the omission is total, meaning the heir did not also receive
any legacies, devises, or advances on his legitime.6
In other words, preterition is the complete and total omission of a compulsory heir from the
testator’s inheritance without the heir’s express disinheritance.
Article 854 of the Civil Code states the legal effects of preterition:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual,
without prejudice to the right of representation. (emphasis supplied)
Under the Civil Code, the preterition of a compulsory heir in the direct line shall annul the
institution of heirs, but the devises and legacies shall remain valid insofar as the legitimes are not
impaired. Consequently, if a will does not institute any devisees or legatees, the preterition of a
compulsory heir in the direct line will result in total intestacy.7
In the present case, the decedent’s will evidently omitted Francisco Olondriz as an heir, legatee,
or devisee. As the decedent’s illegitimate son, Francisco is a compulsory heir in the direct line.
Unless Morales could show otherwise, Francisco’s omission from the will leads to the conclusion
of his preterition.
During the proceedings in the RTC, Morales had the opportunity to present evidence that
Francisco received donations inter vivos and advances on his legitime from the decedent.
However, Morales did not appear during the hearing dates, effectively waiving her right to
present evidence on the issue. We cannot fault the RTC for reaching the reasonable conclusion
that there was preterition.
We will not entertain the petitioner’s factual allegation that Francisco was not preterited because
this Court is not a trier of facts. Furthermore, the CA concurred with the RTC’s conclusion. We
1âw phi 1
see no cogent reason to deviate from the factual findings of the lower courts.
The remaining question is whether it was proper for the RTC to (1) pass upon the intrinsic
validity of the will during probate proceedings and (2) order the case to proceed intestate
because of preterition.
judgment does.13 An interlocutory order does not result in res judicata.14 It remains under the
control of the court and can be modified or rescinded at any time before final judgment.15
Certiorari is a limited form of review confined to errors of jurisdiction. An error of jurisdiction is
one where the officer or tribunal acted without or in excess of its jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction.16 As discussed, it is well within the
jurisdiction of the probate court to pass upon the intrinsic validity of the will if probate
proceedings might become an idle ceremony due to the nullity of the will.
On the other hand, grave abuse of discretion is the capricious and whimsical exercise of
judgment equivalent to an evasion of positive duty, or a virtual refusal to act at all in
contemplation of the law.17 It is present when power is exercised in a despotic manner by reason,
for instance, of passion and hostility. Morales failed to show that the R TC acted in such a
capricious and despotic manner that would have warranted the CA's grant of her petition
for certiorari. On the contrary, the RTC acted appropriately in accordance with the law and
jurisprudence.
WHEREFORE, the petition is DISMISSED. Costs against the petitioner.
SO ORDERED.

The general rule is that in probate proceedings, the scope of the court’s inquiry is limited to
questions on the extrinsic validity of the will; the probate court will only determine the will’s formal
validity and due execution.8However, this rule is not inflexible and absolute.9 It is not beyond the
probate court’s jurisdiction to pass upon the intrinsic validity of the will when so warranted by
exceptional circumstances.10 When practical considerations demand that the intrinsic validity of
the will be passed upon even before it is probated, the probate court should meet the issue.11

The decedent’s will does not contain specific legacies or devices and Francisco’s preterition
annulled the institution of heirs. The annulment effectively caused the total abrogation of the
1avvphi1

will, resulting in total intestacy of the inheritance.12 The decedent’s will, no matter how valid it may
appear extrinsically, is null and void. The conduct of separate proceedings to determine the
intrinsic validity of its testamentary provisions would be superfluous. Thus, we cannot attribute
error – much less grave abuse of discretion – on the RTC for ordering the case to proceed
intestate.

Finally, there is no merit in the petitioner’s argument that the previous order setting the case for
probate barred the RTC from ordering the case to proceed intestate. The disputed order is
merely interlocutory and can never become final and executory in the same manner that a final