G.R. No.
L-37453 May 25, 1979 were bequeathed all properties and estate, real or personal
RIZALINA GABRIEL GONZALES, petitioner, 
 satisfying the expenses, debts and legacies as aforementioned.
vs.HONORABLE COURT OF APPEALS and LUTGARDA
SANTIAGO, respondents.
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,
already acquired, or to be acquired, in her testatrix name, after
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.
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.
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.
G.R. No. L-26317 January 29, 1927
Estate of Miguel Mamuyac, deceased. 
 after his death. It will not be presumed that such will has been
FRANCISCO GAGO, petitioner-appellant, 
 destroyed by any other person without the knowledge or authority
vs.CORNELIO MAMUYAC, AMBROSIO LARIOSA, 
 of the testator. The force of the presumption of cancellation or
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-
appellees.
The purpose of this action was to obtain the probation of a last will
and testament of Miguel Mamuyac, who died on the 2d day of
January, 1922, in the municipality of Agoo of the Province of La
Union. It appears from the record that on or about the 27th day of
July, 1918, the said Miguel Mamuyac executed a last will and
testament (Exhibit A). In the month of January, 1922, the said
Francisco Gago presented a petition in the Court of First Instance
of the Province of La Union for the probation of that will. The
probation of the same was opposed by Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil
cause No. 1144, Province of La Union). After hearing all of the
parties the petition for the probation of said will was denied by the
Honorable C. M. Villareal on the 2d day of November, 1923, upon
the ground that the deceased had on the 16th day of April, 1919,
executed a new will and testament.
On the 21st day of February, 1925, the present action was
commenced. Its purpose was to secure the probation of the said
will of the 16th day of April, 1919 (Exhibit 1). To said petition
Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and
Catalina Mamuyac presented their oppositions, alleging (a) that
the said will is a copy of the second will and testament executed
by the said Miguel Mamuyac; (b) that the same had been
cancelled and revoked during the lifetime of Miguel Mamuyac and
(c) that the said will was not the last will and testament of the
deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R.
Teodoro, judge, after hearing the respective parties, denied the
probation of said will of April 16, 1919, upon the ground that the
same had been cancelled and revoked in the year 1920. Judge
Teodoro, after examining the evidence adduced, found that the
following facts had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in
the possession of the deceased testator Miguel Mamuyac, who
revoked it before his death as per testimony of witness Jose
Fenoy, who typed the will of the testator on April 16, 1919, and
Carlos Bejar, who saw on December 30, 1920, the original Exhibit
A (will of 1919) actually cancelled by the testator Miguel
Mamuyac, who assured Carlos Bejar that inasmuch as he had
sold him a house and the land where the house was built, he had
to cancel it (the will of 1919), executing thereby a new testament.
Narcisa Gago in a way corroborates the testimony of Jose Fenoy,
admitting that the will executed by the deceased (Miguel
Mamuyac) in 1919 was found in the possession of father Miguel
Mamuyac. The opponents have successfully established the fact
that father Miguel Mamuyac had executed in 1920 another will.
The same Narcisa Gago, the sister of the deceased, who was
living in the house with him, when cross-examined by attorney for
the opponents, testified that the original Exhibit A could not be
found. For the foregoing consideration and for the reason that the
original of Exhibit A has been cancelled by the deceased father
Miguel Mamuyac, the court disallows the probate of Exhibit A for
the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in
not finding from the evidence that the will in question had been
executed with all the formalities required by the law; that the same
had been revoked and cancelled in 1920 before his death; that
the said will was a mere carbon copy and that the oppositors were
not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there
is positive proof, not denied, which was accepted by the lower
court, that will in question had been cancelled in 1920. The law
does not require any evidence of the revocation or cancellation of
a will to be preserved. It therefore becomes difficult at times to
prove the revocation or cancellation of wills. The fact that such
cancellation or revocation has taken place must either remain
unproved of be inferred from evidence showing that after due
search the original will cannot be found. Where a will which
cannot be found is shown to have been in the possession of the
testator, when last seen, the presumption is, in the absence of
other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that
the testator had ready access to the will and it cannot be found
revocation by the testator, while varying greatly, being weak or
strong according to the circumstances, is never conclusive, but
may be overcome by proof that the will was not destroyed by the
testator with intent to revoke it.
In view of the fat that the original will of 1919 could not be found
after the death of the testator Miguel Mamuyac and in view of the
positive proof that the same had been cancelled, we are forced to
the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence. In a proceeding to
probate a will the burden of proofs is upon the proponent clearly
to establish not only its execution but its existence. Having proved
its execution by the proponents, the burden is on the contestant to
show that it has been revoked. In a great majority of instances in
which wills are destroyed for the purpose of revoking them there
is no witness to the act of cancellation or destruction and all
evidence of its cancellation perishes with the testator. Copies of
wills should be admitted by the courts with great caution. When it
is proven, however, by proper testimony that a will was executed
in duplicate and each copy was executed with all the formalities
and requirements of the law, then the duplicate may be admitted
in evidence when it is made to appear that the original has been
lost and was not cancelled or destroyed by the testator.
(Borromeo vs. Casquijo, G.R. No. L-26063.)1
After a careful examination of the entire record, we are fully
persuaded that the will presented for probate had been cancelled
by the testator in 1920. Therefore the judgment appealed from is
hereby affirmed. And without any finding as to costs, it is so
ordered.
G.R. No. L-2538 September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI.
JUANA JUAN VDA. DE MOLO, petitioner-appellee, 
 June 20, 1939, in order to enable her to obtain the probate of the
vs.
 will executed by the deceased on August 17, 1918, pointing out
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
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
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
G.R. No. 17714 May 31, 1922
In the mater of the estate of Jesus de Leon. 

IGNACIA DIAZ, petitioner-appellant, 

vs.ANA DE LEON, opponent-appellee.
The only question raised in this case is whether or to the will
executed by Jesus de Leon, now, was revoked by him.
The petitioner denies such revocation, while the contestant affirms
the same by alleging that the testator revoked his will by
destroying it, and by executing another will expressly revoking the
former.
We find that the second will Exhibit 1 executed by the deceased is
not cloth with all the necessary requisites to constitute a sufficient
revocation.
But according to the statute governing the subject in this
jurisdiction, the destruction of a will animo revocandi constitutes,
in itself, a sufficient revocation. (Sec. 623, Code of Civil
Procedure.)lävvphì1·né+
From the evidence submitted in this case, it appears that the
testator, shortly after the execution of the first will in question,
asked that the same be returned to him. The instrument was
returned to the testator who ordered his servant to tear the
document. This was done in his presence and before a nurse who
testified to this effect. After some time, the testator, being asked
by Dr. Cornelio Mapa about the will, said that it had been
destroyed.
The intention of revoking the will is manifest from the established
fact that the testator was anxious to withdraw or change the
provisions he had made in his first will. This fact is disclosed by
the testator's own statements to the witnesses Canto and the
Mother Superior of the Hospital where he was confined.
The original will herein presented for probate having been
destroyed with animo revocandi, cannot now be probated as the
will and last testament of Jesus de Leon.
Judgement is affirmed with costs against the petitioner. So
ordered.