Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of

Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the
instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente
Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their
children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They
alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue
influence, and was in every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in
decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was
procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose
Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that
said property could not be conveyed by decedent in its entirety, as she was not its sole owner.

Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:

Considering then that the probate proceedings herein must decide only the question of identity of the will,
its due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for
the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of
testamentary capacity of the testatrix.

For one, no evidence was presented to show that the will in question is different from the will actually
executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written
in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the
question of identity of will. No other will was alleged to have been executed by the testatrix other than the
will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for
probate must be accepted, i.e., the will submitted in Court must be deemed to be the will actually
executed by the testatrix.

xxx xxx xxx

 While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been
disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question
was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who
have convincingly shown knowledge of the handwriting of the testatrix have been presented and have
explicitly and categorically identified the handwriting with which the holographic will in question was written
to be the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of
the testatrix has been complied with.

xxx xxx xxx

As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand
himself has testified in Court that the testatrix was completely in her sound mind when he visited her
during her birthday celebration in 1981, at or around which time the holographic will in question was
executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the
will, knew the value of the estate to be disposed of, the proper object of her bounty, and the character of
the testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature
of her estate. She even identified the lot number and square meters of the lots she had conveyed by will.
The objects of her bounty were likewise identified explicitly. And considering that she had even written a
nursing book which contained the law and jurisprudence on will and succession, there is more than
sufficient showing that she knows the character of the testamentary act.

In this wise, the question of identity of the will, its due execution and the testamentary capacity of the
testatrix has to be resolved in favor of the allowance of probate of the will submitted herein.

Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic
will. While it was alleged that the said will was procured by undue and improper pressure and influence on
the part of the beneficiary or of some other person, the evidence adduced have not shown any instance
where improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand
has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the
time of her birth anniversary celebration in 1981. It was also established that she is a very intelligent
person and has a mind of her own. Her independence of character and to some extent, her sense of
superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or
improperly pressured to make the aforesaid will. It must be noted that the undue influence or improper
pressure in question herein only refer to the making of a will and not as to the specific testamentary
provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this
Court cannot find convincing reason for the disallowance of the will herein.

Considering then that it is a well-established doctrine in the law on succession that in case of doubt,
testate succession should be preferred over intestate succession, and the fact that no convincing grounds
were presented and proven for the disallowance of the holographic will of the late Annie Sand, the
aforesaid will submitted herein must be admitted to probate. 3 (Citations omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals
found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with
Articles 813 and 814 of the New Civil Code, which read, as follows:

Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated,
and the last disposition has a signature and date, such date validates the dispositions preceding it,
whatever be the time of prior dispositions.

Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must
authenticate the same by his full signature.

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found
that the erasures, alterations and cancellations made thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:

(a) If not executed and attested as required by law;

 (b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of
some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument
should be his will at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should
be his will at the time of affixing his signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to
probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its
signing were the voluntary acts of the decedent. 6

In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the
formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it
disallowed the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

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

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus:

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

Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in
the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article
814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an
identical commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of authentication will only result in
disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They read as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites
required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper corresponding to the year of its
execution, written in its entirety by the testator and signed by him, and must contain a statement of the
year, month and day of its execution.

If it should contain any erased, corrected, or interlined words, the testator must identify them over his
signature.

Foreigners may execute holographic wills in their own language.

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

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and
pass upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will
that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question
her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the
whole property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp.
Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the Cabadbaran property. No costs.

SO ORDERED.

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

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-40207 September 28, 1984

ROSA K. KALAW, petitioner,

vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW, respondents.

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister,
Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her
holographic Will executed on December 24, 1968.

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing mind and
memory, do hereby declare thus to be my last will and testament.

1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights of said
Church, and that my executrix hereinafter named provide and erect at the expose of my state a suitable monument to
perpetuate my memory.

xxx xxx xxx

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

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must
authenticate the same by his full signature.

ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the
sole heir thereunder.

After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:

The document Exhibit "C" was submitted to the National Bureau of Investigation for examination. The NBI
reported that the handwriting, the signature, the insertions and/or additions and the initial were made by
one and the same person. Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K.
Kalaw. The only question is whether the win, Exhibit 'C', should be admitted to probate although the
alterations and/or insertions or additions above-mentioned were not authenticated by the full signature of
the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru their counsel
 to submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree,
nor was it impliedly understood, that the oppositors would be in estoppel.

The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit "C".
Finding the insertions, alterations and/or additions in Exhibit "C" not to be authenticated by the full
signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit "C".

WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K. Kalaw is hereby
denied.

SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were the
testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November 2, 1973, on the ground that "Article 814 of the Civil Code being ,
clear and explicit, (it) requires no necessity for interpretation."

From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying
reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of whether or not the original
unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full
signature of the testatrix, should be probated or not, with her as sole heir.

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not
been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular
words erased, corrected or interlined.1 Manresa gave an Identical commentary when he said "la omision de la salvedad no
anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2

However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by
substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full
signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing
remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to
disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she
failed to authenticate it in the manner required by law by affixing her full signature,

The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic
Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is,
with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with
certitude. As Manresa had stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new
Civil Code was derived:

... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de
un testamento olografo que contenga palabras tachadas, enmendadas o entre renglones no salvadas por
el testador bajo su firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal omision
solo puede afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar
esa disposicion en parrafo aparte de aquel que determine las condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a
anular este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armonia y
congruencia con el art. 26 de la ley del Notariado que declara nulas las adiciones apostillas
entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre que no se salven en la
forma prevenida, paro no el documento que las contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin
trascendencia alguna(l).

Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras que no afecter4 alteren ni
uarien de modo substancial la express voluntad del testador manifiesta en el documento. Asi lo advierte
la sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada
por el testador la enmienda del guarismo ultimo del año en que fue extendido 3 (Emphasis ours).

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3, 1973, is hereby
affirmed in toto. No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

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

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

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

As found by the Court of Appeals:

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

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

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

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

(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by
law.

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

On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss
the petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the management and
improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.

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

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

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

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

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that
the dismissal of appellant's petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question
of fact and alleged that the trial court committed the following assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE
PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS
DEATH THE MISSING HOLOGRAPHIC WILL;

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

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

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

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

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

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON
R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

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

GUTIERREZ, JR., J.:

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

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503 entitled "In the
Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas,
the brother of the deceased Bibiana Roxas de Jesus.

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

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

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

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic
Will of Bibiana R. de Jesus because a it was not executed in accordance with law, (b) it was executed through force,
intimidation and/or under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake
and/or did not intend, nor could have intended the said Will to be her last Will and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic Will which
he found to have been duly executed in accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Will of the
deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law
requires that the Will should contain the day, month and year of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate of the
holographic Will on the ground that the word "dated" has generally been held to include the month, day, and year. The
dispositive portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de Jesus, is hereby
disallowed for not having been executed as required by the law. The order of August 24, 1973 is hereby
set aside.

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

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

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

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

We agree with the petitioner.

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

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

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

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he emphasized that:

xxx xxx xxx

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

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

xxx xxx xxx

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

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

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

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. ...

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

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

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

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the order
allowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.

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

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 176831               January 15, 2010

UY KIAO ENG, Petitioner,

vs.
NIXON LEE, Respondent.

DECISION

NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the August 23, 2006 Amended
Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 91725 and the February 23, 2007 Resolution, 2 denying the motion for
reconsideration thereof.

The relevant facts and proceedings follow.

Alleging that his father passed away on June 22, 1992 in Manila and left a holographic will, which is now in the custody of petitioner Uy
Kiao Eng, his mother, respondent Nixon Lee filed, on May 28, 2001, a petition for mandamus with damages, docketed as Civil Case No.
01100939, before the Regional Trial Court (RTC) of Manila, to compel petitioner to produce the will so that probate proceedings for the
allowance thereof could be instituted. Allegedly, respondent had already requested his mother to settle and liquidate the patriarch’s estate
and to deliver to the legal heirs their respective inheritance, but petitioner refused to do so without any justifiable reason. 3

In her answer with counterclaim, petitioner traversed the allegations in the complaint and posited that the same be dismissed for failure
to state a cause of action, for lack of cause of action, and for non-compliance with a condition precedent for the filing thereof. Petitioner
denied that she was in custody of the original holographic will and that she knew of its whereabouts. She, moreover, asserted that
photocopies of the will were given to respondent and to his siblings. As a matter of fact, respondent was able to introduce, as an exhibit,
a copy of the will in Civil Case No. 224-V-00 before the RTC of Valenzuela City. Petitioner further contended that respondent should
have first exerted earnest efforts to amicably settle the controversy with her before he filed the suit. 4

The RTC heard the case. After the presentation and formal offer of respondent’s evidence, petitioner demurred, contending that her son
failed to prove that she had in her custody the original holographic will. Importantly, she asserted that the pieces of documentary
evidence presented, aside from being hearsay, were all immaterial and irrelevant to the issue involved in the petition—they did not prove
or disprove that she unlawfully neglected the performance of an act which the law specifically enjoined as a duty resulting from an
office, trust or station, for the court to issue the writ of mandamus. 5

The RTC, at first, denied the demurrer to evidence. 6 In its February 4, 2005 Order,7 however, it granted the same on petitioner’s motion
for reconsideration. Respondent’s motion for reconsideration of this latter order was denied on September 20, 2005. 8 Hence, the petition
was dismissed.

Aggrieved, respondent sought review from the appellate court. On April 26, 2006, the CA initially denied the appeal for lack of merit. It
ruled that the writ of mandamus would issue only in instances when no other remedy would be available and sufficient to afford redress.
Under Rule 76, in an action for the settlement of the estate of his deceased father, respondent could ask for the presentation or production
and for the approval or probate of the holographic will. The CA further ruled that respondent, in the proceedings before the trial court,
failed to present sufficient evidence to prove that his mother had in her custody the original copy of the will. 91avvphi1

Respondent moved for reconsideration. The appellate court, in the assailed August 23, 2006 Amended Decision, 10 granted the motion, set
aside its earlier ruling, issued the writ, and ordered the production of the will and the payment of attorney’s fees. It ruled this time that
respondent was able to show by testimonial evidence that his mother had in her possession the holographic will.

Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The appellate court denied this motion in the further
assailed February 23, 2007 Resolution.11

Left with no other recourse, petitioner brought the matter before this Court, contending in the main that the petition for mandamus is not
the proper remedy and that the testimonial evidence used by the appellate court as basis for its ruling is inadmissible. 12
The Court cannot sustain the CA’s issuance of the writ.

The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides that—

SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act
required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful
acts of the respondent.13

Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or the sovereign, directed to
some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified,
which duty results from the official station of the party to whom the writ is directed or from operation of law. 14 This definition
recognizes the public character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose of enforcing the
performance of duties in which the public has no interest. 15 The writ is a proper recourse for citizens who seek to enforce a public right
and to compel the performance of a public duty, most especially when the public right involved is mandated by the Constitution. 16 As the
quoted provision instructs, mandamus will lie if the tribunal, corporation, board, officer, or person unlawfully neglects the performance
of an act which the law enjoins as a duty resulting from an office, trust or station. 17

The writ of mandamus, however, will not issue to compel an official to do anything which is not his duty to do or which it is his duty not
to do, or to give to the applicant anything to which he is not entitled by law. 18 Nor will mandamus issue to enforce a right which is in
substantial dispute or as to which a substantial doubt exists, although objection raising a mere technical question will be disregarded if
the right is clear and the case is meritorious. 19 As a rule, mandamus will not lie in the absence of any of the following grounds: [a] that
the court, officer, board, or person against whom the action is taken unlawfully neglected the performance of an act which the law
specifically enjoins as a duty resulting from office, trust, or station; or [b] that such court, officer, board, or person has unlawfully
excluded petitioner/relator from the use and enjoyment of a right or office to which he is entitled. 20 On the part of the relator, it is
essential to the issuance of a writ of mandamus that he should have a clear legal right to the thing demanded and it must be the
imperative duty of respondent to perform the act required. 21

Recognized further in this jurisdiction is the principle that mandamus cannot be used to enforce contractual obligations. 22 Generally,
mandamus will not lie to enforce purely private contract rights, and will not lie against an individual unless some obligation in the nature
of a public or quasi-public duty is imposed.23 The writ is not appropriate to enforce a private right against an individual. 24 The writ of
mandamus lies to enforce the execution of an act, when, otherwise, justice would be obstructed; and, regularly, issues only in cases
relating to the public and to the government; hence, it is called a prerogative writ. 25 To preserve its prerogative character, mandamus is
not used for the redress of private wrongs, but only in matters relating to the public. 26

Moreover, an important principle followed in the issuance of the writ is that there should be no plain, speedy and adequate remedy in the
ordinary course of law other than the remedy of mandamus being invoked. 27 In other words, mandamus can be issued only in cases
where the usual modes of procedure and forms of remedy are powerless to afford relief. 28 Although classified as a legal remedy,
mandamus is equitable in its nature and its issuance is generally controlled by equitable principles. 29 Indeed, the grant of the writ of
mandamus lies in the sound discretion of the court.

In the instant case, the Court, without unnecessarily ascertaining whether the obligation involved here—the production of the original
holographic will—is in the nature of a public or a private duty, rules that the remedy of mandamus cannot be availed of by respondent
Lee because there lies another plain, speedy and adequate remedy in the ordinary course of law. Let it be noted that respondent has a
photocopy of the will and that he seeks the production of the original for purposes of probate. The Rules of Court, however, does not
prevent him from instituting probate proceedings for the allowance of the will whether the same is in his possession or not. Rule 76,
Section 1 relevantly provides:

Section 1. Who may petition for the allowance of will.—Any executor, devisee, or legatee named in a will, or any other person interested
in the estate, may, at any time, after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the
same be in his possession or not, or is lost or destroyed.

An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production of the original holographic will. Thus—

SEC. 2. Custodian of will to deliver.—The person who has custody of a will shall, within twenty (20) days after he knows of the death of
the testator, deliver the will to the court having jurisdiction, or to the executor named in the will.

SEC. 3. Executor to present will and accept or refuse trust.—A person named as executor in a will shall within twenty (20) days after he
knows of the death of the testator, or within twenty (20) days after he knows that he is named executor if he obtained such knowledge
after the death of the testator, present such will to the court having jurisdiction, unless the will has reached the court in any other manner,
and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it.

SEC. 4. Custodian and executor subject to fine for neglect.—A person who neglects any of the duties required in the two last preceding
sections without excuse satisfactory to the court shall be fined not exceeding two thousand pesos.

SEC. 5. Person retaining will may be committed.—A person having custody of a will after the death of the testator who neglects without
reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept
until he delivers the will.30

There being a plain, speedy and adequate remedy in the ordinary course of law for the production of the subject will, the remedy of
mandamus cannot be availed of. Suffice it to state that respondent Lee lacks a cause of action in his petition. Thus, the Court grants the
demurrer.

WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The August 23, 2006 Amended Decision and
the February 23, 2007 Resolution of the Court of Appeals in CA-G.R. SP No. 91725 are REVERSED and SET ASIDE. Civil Case No.
01100939 before the Regional Trial Court of Manila is DISMISSED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 123486           August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,

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

PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its resolution denying reconsideration, ruling:

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

Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the holographic will of the
testator Matilde Seño Vda. de Ramonal.2

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the
deceased Matilde Seño Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition 3 for probate of the
holographic will of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seño Vda. de Ramonal, was of sound and disposing mind when she
executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and
will was written voluntarily.
The assessed value of the decedent's property, including all real and personal property was about P400,000.00, at the time of her death. 4

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition 5 to the petition for probate, alleging that the
holographic will was a forgery and that the same is even illegible. This gives an impression that a "third hand" of an interested party
other than the "true hand" of Matilde Seño Vda. de Ramonal executed the holographic will.

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

Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence, filed a
demurrer6 to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the holographic
will of the deceased Matilde Seño Vda. de Ramonal.

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

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

On December 12, 1990, respondents filed a notice of appeal, 8 and in support of their appeal, the respondents once again reiterated the
testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad;
(5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.

To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies.

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

Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's affidavit of the decedent.
However, the voters' affidavit was not produced for the same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de Ramonal was her aunt, and that after the death of Matilde's
husband, the latter lived with her in her parent's house for eleven (11) years from 1958 to 1969. During those eleven (11) years of close
association the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her (deceased Matilde
Seño Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings, and deceased always issued receipts. In
addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters of
the deceased to her creditors.

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

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

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

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

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

Instruction
August 30, 1978

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

(Sgd) Matilde Vda de Ramonal

August 30, 1978

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

(Sgd) Matilde Vda de Ramonal

August 30, 1978

3. My jewelry's shall be divided among:

1. Eufemia Patigas

2. Josefina Salcedo

3. Evangeline Calugay

(Sgd) Matilde Vda de Ramonal

August 30, 1978

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

(Sgd) Matilde Vda de Ramonal

August 30, 1978

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

(Sgd) Matilde Vda de Ramonal

August 30, 1978

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

(Sgd) Matilde Vda de Ramonal

August 30, 1978

Gene and Manuel:

Follow my instruction in order that I will rest peacefully.

Mama

Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was meritorious. Citing the decision in the case of
Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:

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

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to.

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

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

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

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

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no uncertain
terms testified that the handwriting and signature in the holographic will were those of the testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of Appeals
sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to probate.

Hence, this petition.

The petitioners raise the following issues:

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

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

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

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

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

So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An exhaustive and
objective consideration of the evidence is imperative to establish the true intent of the testator.

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

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in the voter's
affidavit, which was not even produced as it was no longer available.

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

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

A.   Collecting rentals.

Q.   From where?

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

xxx     xxx     xxx

Q.   Who sometime accompany her?

A.   I sometimes accompany her.

Q.   In collecting rentals does she issue receipts?

A.   Yes, sir.13

xxx     xxx     xxx

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

A.   Yes, sir.

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

A.   Matilde vda. De Ramonal.

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

A.   I am familiar with her signature.

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

A.   Yes, sir.
 Q.   Why do you say so?

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

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

A.   In handwritten.14

xxx     xxx     xxx

Q.   In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you said what else did
you do to acquire familiarity of the signature of Matilde Vda De Ramonal?

A.   Posting records.

Q.   Aside from that?

A.   Carrying letters.

Q.   Letters of whom?

A.   Matilde.

Q.   To whom?

A.   To her creditors.15

xxx     xxx     xxx

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

A.   Yes, sir.

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

A.   My Aunt.

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

A.   Because I am familiar with her signature. 16

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

Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the personal belongings
of the deceased but was in the possession of Ms. Binanay. She testified that:

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

A.   Yes, sir.

Q.   Who was in possession of that will?

A.   I.

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

 A.   It was in my mother's possession.

Q.   So, it was not in your possession?

A.   Sorry, yes.

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

A.   1985.17

xxx     xxx     xxx

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

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

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

A.   I presented it to the fiscal.

Q.   For what purpose?

A.   Just to seek advice.

Q.   Advice of what?

A.   About the will.18

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

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

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

A.   Yes, sir.

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

A.   Yes, sir.19

xxx     xxx     xxx

Q.   Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in the word Vda.?

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

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

A.   Yes, sir.

Q.   Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter D.

A.   Yes, sir.
 Q.   And there is a retracing in the word Vda.?

A.   Yes, sir.20

xxx     xxx     xxx

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

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

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

A.   In writing.

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

A.   That was I think. (sic).

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

A.   Yes, sir.

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

A.   Yes, sir.21

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

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

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

Q.   What else? What services that you rendered?

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

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

A.   I used to be her personal driver.

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

A.   Yes, sir.

Q.   How come that you acquired familiarity?

A.   Because I lived with her since birth.22

xxx     xxx     xxx
 Q.   Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a signature here below
item No. 1, will you tell this court whose signature is this?

A.   Yes, sir, that is her signature.

Q.   Why do you say that is her signature?

A.   I am familiar with her signature.23

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

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

Q.   Do you know Matilde Vda de Ramonal?

A.   Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to the husband by
consanguinity.

Q.   Can you tell the name of the husband?

A.   The late husband is Justo Ramonal.24

xxx     xxx     xxx

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

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

xxx     xxx     xxx

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

A.   Here in Cagayan de Oro City.

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

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

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

A.   It is about the project partition to terminate the property, which was under the court before. 26

xxx     xxx     xxx

Q.   Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the estate of Justo
Ramonal and there appears a signature over the type written word Matilde vda de Ramonal, whose signature is this?

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

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

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

xxx     xxx     xxx

Q.   Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other assistance wherein you were
rendering professional service to the deceased Matilde Vda de Ramonal?
 A.   I can not remember if I have assisted her in other matters but if there are documents to show that I have assisted then I can
recall.28

xxx     xxx     xxx

Q.   Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal Waga and tell the court
whether you are familiar with the handwriting contained in that document marked as exhibit "S"?

A.   I am not familiar with the handwriting.

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

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

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

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

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

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

Q.   Why do you say that?

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

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

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

xxx     xxx     xxx

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

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

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

A.   That is true.30

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

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

However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the
holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of
the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five years before the
death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and
executed by her during her lifetime. The only chance at comparison was during the cross-examination of Ms. Binanay when the lawyer
of petitioners asked Ms. Binanay to compare the documents which contained the signature of the deceased with that of the holographic
will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature
in the holographic will.

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

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

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin with
instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the deceased
Matilde Seño vda. de Ramonal.1âwphi1.nêt

No costs.

SO ORDERED.