Ut in Omnibus Glorificetur Deus

By:QMBD_SBUCOL

CASE DIGESTS FOR WILLS & SUCCESSION

_______________________________________________________________

Module 2
DANILO ALUAD, et. al. v. ZENAIDO ALUAD,
G.R. No. 176943; October 17, 2008
CARPIO MORALES, J.:

FACTS: Petitioners’ mother, Maria Aluad (adopted daughter) and respondent Zenaido (adopted son)
were raised by the childless spouses Matilde and Crispin Aluad. Crispin was the owner of six lots (674,
675, 676, 677, 680, and 682) at Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated
the lots to herself.

 (1981) Matilde executed a document entitled “Deed of Donation of Real Property Inter
Vivos” in favor of petitioners’ mother Maria covering all the six lots which Matilde inherited
from her husband Crispin.
 (1986) Original Certificates of Title over Lot Nos. 674 and 676 were issued in Matilde’s name.
In 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale of Real Property.
 (1992) Matilde executed a last will and testament, devising Lot Nos. 675, 677, 682, and 680 to
Maria, and her "remaining properties" including Lot No. 674 to respondent.
 (1994) Matilde died on January 25 while Maria died on September 24 of the same year.
 (1995) Maria’s heirs-herein petitioners filed before the RTC of Roxas City a Complaint, for
declaration and recovery of ownership and possession of Lot Nos. 674 and 676, and damages
against respondent.

Petitioners’ Allegations: They possessed the 2 parcels of until January 1991 when defendant entered
and possessed such properties claiming as the adopted son of Crispin Aluad who refused to give back
possession until Matilde Aluad died in 1994 and then retained the possession thereof up to and until
the present time, thus, depriving the plaintiffs of the enjoyment of said land. After the death of
Matilde, the plaintiffs succeeded by inheritance by right of representation from their deceased mother,
Maria who is the sole and only daughter of Matilde Aluad.

Respondent’s Allegations: That Lot 674 is owned by the defendant as this lot was adjudicated to him
in the Last Will and Testament of Matilde Aluad x x x while Lot 676 was purchased by him from
Matilde Aluad. These two lots are in his possession as true owner.

Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to Evidence
which the RTC granted. Respondent filed an Amended Answer contending that the Deed of Donation
is forged and falsified and that if ever said document does exist, the same was already revoked by
Matilde “when she exercised all acts of dominion over said properties until she sold Lot 676 to
defendant and until her death with respect to the other lots without any opposition from Maria
Aluad.”

RTC: In favor of petitioners.

CA: Reversed RTC Decision and ruled that that the Deed of Donation was actually a donation mortis causa, not inter vivos, and
as such it had to, but did not, comply with the formalities of a will. Thus, it found that the Deed of Donation was witnessed by
only two witnesses and had no attestation clause which is not in accordance with Article 805 of the Civil Code. While the CA
declared respondent as the rightful owner of Lot No. 676, it did not so declare with respect to Lot No. 674, as Matilde’s last will
and testament had not yet been probated.

MR by petitioners was denied hence the present petition.

ISSUE: Whether or not the donation to petitioners’ mother is one of mortis causa.

HELD: Yes. As did the appellate court, the Court finds the donation to petitioners’ mother one of
mortis causa, it having the following characteristics:
(1) It conveys no title or ownership to the transferee  before the death of the transferor; or what
amounts to the same thing, that the transferor should retain the ownership (full or naked) and control
of the property while alive;
(2) That before the death of the transferor, the transfer should be revocable by the transferor at
will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the
donor to dispose of the properties conveyed; and
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(3) That the transfer should be void if the transferor should survive the transferee.

Examination of the phrases in the Deed of Donation:

 The phrase in the Deed of Donation “to become effective upon the death of the DONOR” admits of no other
interpretation than to mean that Matilde did not intend to transfer the ownership of the six lots to petitioners’
mother during her (Matilde’s) lifetime.
 The statement in the Deed of Donation reading “anytime during the lifetime of the DONOR or anyone of
them who should survive, they could use, encumber or even dispose of any or even all the parcels of land
herein donated” means that Matilde retained ownership of the lots and reserved in her the right to dispose them.
For the right to dispose of a thing without other limitations than those established by law is an attribute of
ownership.
 The phrase in the Deed of Donation “or anyone of them who should survive” is of course out of sync. For the Deed of
Donation clearly stated that it would take effect upon the death of the donor, hence, said phrase could only have
referred to the donor Matilde. Petitioners themselves concede that such phrase does not refer to the done.

As the CA observed, “that the donation is mortis causa is fortified by Matilde’s acts of
possession as she continued to pay the taxes for the said properties which remained
under her name; appropriated the produce; and applied for free patents for which
OCTs were issued under her name.”

The donation being then mortis causa, the formalities of a will should have been
observed but they were not, as it was witnessed by only two, not three or more
witnesses following Article 805 of the Civil Code.

Further, the witnesses did not even sign the attestation clause the execution of which clause is a
requirement separate from the subscription of the will and the affixing of signatures on the left-hand
margins of the pages of the will.

So the Court has emphasized:

 Article 805 particularly segregates the requirement that the instrumental witnesses sign each
page of the will from the requisite that the will be "attested and subscribed  by the
instrumental witnesses.
 The respective intents behind these two classes of signatures are distinct from each other. The
signatures on the left-hand corner of every page signify, among others, that the witnesses are
aware that the page they are signing forms part of the will. On the other hand, the signatures
to the attestation clause establish that the witnesses are referring to the statements contained
in the attestation clause itself.
 Indeed, the attestation clause is separate and apart from the disposition of the
will. An unsigned attestation clause results in an UNATTESTED WILL.
 Even if the instrumental witnesses signed the left-hand margin of the page containing the
unsigned attestation clause, such signatures cannot demonstrate these witnesses’
undertakings in the clause, since the signatures that do appear on the page were directed
towards a wholly different avowal.
 It is the witnesses, and not the testator, who are required under Article 805 to state the
number of pages used upon which the will is written; the fact that the testator had signed the
will and every page thereof; and that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another. The only proof in the will that the
witnesses have stated these elemental facts would be their signatures on the attestation
clause.

Furthermore, the witnesses did not acknowledge the will before the notary public,
which is not in accordance with the requirement of Article 806 of the Civil Code that
every will must be acknowledged before a notary public by the testator and the
witnesses. The requirement that all the pages of the will must be numbered
correlatively in letters placed on the upper part of each page was not also followed.
Hence, not having followed the formalities of a will, it is void and transmitted no right
to petitioners’ mother.

But even assuming arguendo that the formalities were observed, since it was not probated, no right to
Lot Nos. 674 and 676 was transmitted to Maria. Matilde thus validly disposed of Lot No. 674 to
respondent by her last will and testament, subject of course to the qualification that her (Matilde’s)
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will must be probated. With respect to Lot No. 676, the same had, as mentioned earlier, been sold by
Matilde to respondent in 1991. The petition is DENIED.
______________________________________________________________________

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido
Alvarado, CESAR ALVARADO v. HON. RAMON G. GAVIOLA, JR., et. al.
G.R. No. 74695; September 14, 1993
BELLOSILLO, J:

Case: Appeal from the IAC Decision which affirmed the Order of the RTC of Sta. Cruz, Laguna,
admitting to probate the last will and testament with codicil of the late Brigido Alvarado.

FACTS: (1977) The 79-year old Brigido Alvarado executed a notarial will entitled “Huling Habilin”
wherein he disinherited an illegitimate son (petitioner Cesar) and expressly revoked a previously
executed holographic will at the time awaiting probate before Branch 4 of RTC Sta. Cruz, Laguna.

As testified to by the 3 instrumental witnesses, the notary public and by private respondent who were
present at the execution, the testator did not read the final draft of the will himself. Instead, private
respondent, as the lawyer who drafted the eight-page document, read the same aloud in the presence
of the testator, the three instrumental witnesses and the notary public. The latter four followed the
reading with their own respective copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on December 1977. On
the 29th day of the same month, a codicil entitled “Kasulatan ng Pagbabago sa Ilang Pagpapasiya
na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado ” was executed
changing some dispositions in the notarial will to generate cash for the testator's eye operation.

Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were
unchanged. Again, the testator did not personally read the final draft of the codicil. It was private
respondent who read it aloud in his presence and of the 3 instrumental witnesses (same as those of
the notarial will) and the notary public who followed the reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator's death in January
1979 by private respondent as executor with the CFI of Siniloan, Laguna.

Petitioner, in turn, filed an Opposition on the following grounds:

 that the will sought to be probated was not executed and attested as required by law;
 that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution due to
senility and old age;
 that the will was executed under duress, or influence of fear and threats; that it was procured by undue and improper
pressure and influence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and
 lastly, that the signature of the testator was procured by fraud or trick.

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

CA: In favor of respondent.

ISSUES:
1) Was Brigido Alvarado blind for purpose of Art, 808 at the time his "Huling Habilin" and its
codicil were executed?
2) If so, was the double-reading requirement of said article complied with?

HELD:
1) Yes. Petitioner contends that his father can already be considered as blind under the scope of
Art. 808. He presented before the RTC a medical certificate issued by Dr. Salceda of the
Philippine Eye Research Institute, the contents of which were interpreted by Dr. Roasa who
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explained that although the testator could visualize fingers at 3 feet, he could no longer read
either printed or handwritten matters as of 14 December 1977, the day of his first
consultation.

The CA contends that the testator could still read on the day the will and the codicil were
executed but chose not to do so because of “poor eyesight;” hence, Art. 808 need not be
complied with.

The SC agrees with petitioner in this respect. The fact remains and this was testified to by his
witnesses, that Brigido did not do so because of his “poor, defective, or blurred” vision making
it necessary for private respondent to do the actual reading for him.

Art. 808 applies not only to blind testators but also to those who, for one
reason or another, are “incapable of reading their wills.” Since Brigido Alvarado
was incapable of reading the final drafts of his will and codicil, he comes within the scope of
the term "blind" as it is used in Art. 808.

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

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-page will
and the five-page codicil who read the same aloud to the testator, and read them only once,
not twice as Art. 808 requires.

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

In the case at bar, private respondent read the testator's will and codicil aloud in the presence
of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent
thereto, the testator affirmed, upon being asked, that the contents read corresponded with his
instructions. Only then did the signing and acknowledgement take place. With respect to the
"Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the
truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino
is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his
expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's
residence precisely for the purpose of securing his conformity to the draft.

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses
likewise read the will and codicil, albeit silently. Afterwards, Atty. de la Pena (the notary
public) and Dr. Evidente (one of the three instrumental witnesses and the testator's physician)
asked the testator whether the contents of the document were of his own free will. Brigido
answered in the affirmative. With 4 persons following the reading word for word with their
own copies, it can be safely concluded that the testator was reasonably assured that what was
read to him were the terms actually appearing on the typewritten documents. This is
especially true when we consider the fact that the three instrumental witnesses were persons
known to the testator, one being his physician and another (Potenciano Ranieses) being
known to him since childhood.

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

compliance suffices where the purpose has been served. Petition denied.
______________________________________________________________________

G.R. No. L-36033; November 5, 1982

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA
PEREZ, (deceased): APOLONIO TABOADA v. HON. AVELINO S. ROSAL, CFI Judge
G.R. No. L-36033; November 5, 1982
GUTIERREZ, JR. J.:

Case: Petition for review of the orders issued by the CFI of Southern Leyte which denied the probate of
the will, the motion for reconsideration and the motion for appointment of a special administrator.

FACTS: In the petition for probate filed with the respondent court, the petitioner attached the
alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-
Visayan dialect, the will consists of two pages. The first page contains the entire
testamentary dispositions and is signed at the end or bottom of the page by the
testatrix alone and at the left hand margin by the 3 instrumental witnesses. The
second page which contains the attestation clause and the acknowledgment is signed
at the end of the attestation clause by the 3 attesting witnesses and at the left hand
margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication,
the trial court commissioned the branch clerk of court to receive the petitioner's evidence.
Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Pamatian issued the questioned order denying the probate
of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner
was also required to submit the names of the intestate heirs with their corresponding addresses so
that they could be properly notified and could intervene in the summary settlement of the estate.
Instead of complying with such order, the petitioner filed a manifestation and/or motion, ex
parte praying for a thirty-day period within which to deliberate on any step to be taken as a result of
the disallowance of the will. He also asked that the ten-day period required by the court to submit the
names of intestate heirs with their addresses be held in abeyance.

The petitioner filed an MR of the order denying the probate of the will. However, the motion together
with the previous manifestation and/or motion could not be acted upon by the Hon. Pamatian due to
his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending
resolution when respondent Judge Rosal assumed the latter’s position. Meanwhile, the petitioner filed
a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. Likewise, the motion for the appointment of special administrator was
denied because of the petitioner's failure to comply with the order requiring him to submit the names
of' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

ISSUE: For the validity of a formal notarial will, does Article 805 of the Civil Code require that the
testatrix and all the 3 instrumental and attesting witnesses sign at the end of the will and in the
presence of the testatrix and of one another?

HELD: No. Under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the
testator himself or by the testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by 3 or more credible witnesses in the presence of the
testator and of one another.

It must be noted that the law uses the terms attested and subscribed. Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those things
are, done which the statute requires for the execution of a will and that the signature of the testator
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exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the
same paper for the purpose of identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill).

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not
only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual
forms should be ignored, especially where the authenticity of the will is not assailed. The law is to
be liberally construed.

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect
in the place of signatures of the witnesses, he would have found the testimony sufficient to establish
the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly Identified by subscribing witness Vicente
Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution
behind the questioned order.

The attestation clause failed to state the number of pages used in writing the will. This would have
been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it
is really and actually composed of only two pages duly signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions
is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left
margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that “This Last Will and Testament consists of two
pages including this page.”

(Singson v. Florentino, et al)  (92 Phil. 161, 164) As to the purpose of the requirement that the
attestation clause must state the number of pages used:
The ratio decidendi of these cases seems to be that the attestation clause must
contain a statement of the number of sheets or pages composing the will and that if
this is missing or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by a consideration or
examination of the will itself.

But here the situation is different. While the attestation clause does not state the
number of sheets or pages upon which the will is written, however, the last part of the
body of the will contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of construction and
places it within the realm of similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from being defeated by purely
technical considerations.

Petition granted. The orders of denial of the respondent court are set aside. The respondent court is
ordered to allow the probate of the will.
______________________________________________________________________

DY YIENG SEANGIO, et. al. v. HON. AMOR A. REYES, et. al.

G.R. Nos. 140371-72; November 27, 2006
AZCUNA, J.:

Case: Petition for certiorari with application for the issuance of a writ of preliminary injunction
and/or TRO seeking the nullification of the orders of the RTC dismissing the petition for probate on
the ground of preterition.

FACTS: (1998) private respondents filed a petition for the settlement of the intestate estate of the late
Segundo Seangio before the RTC (SP. Proc. No. 98–90870), and praying for the appointment of
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private respondent Elisa Seangio–Santos as special administrator and guardian ad litem of petitioner
Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara, and Virginia, all surnamed Seangio, opposed the petition. They
contended that:
1) Dy Yieng is still very healthy and in full command of her faculties;
2) the deceased Segundo executed a general power of attorney in favor of Virginia giving her the power to manage and
exercise control and supervision over his business in the Philippines;
3) Virginia is the most competent and qualified to serve as the administrator of the estate of Segundo because she is a
CPA; and
4) Segundo left a holographic will, dated 20 September 1995, disinheriting one of the private respondents, Alfredo
Seangio, for cause.

(1999) A petition for the probate of the holographic will of Segundo (SP. Proc. No. 99–93396), was
filed by petitioners before the RTC.

The document that petitioners refer to as Segundo’s holographic will is the Kasulatan Sa Pag-
Aalis Ng Mana, whereby Segundo disinherited his son, Alfredo. The document contained the
following: “tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak
na si Alfredo Seangio.”

It was further stated there that Alfredo hurled hurtful words against his father in front of his siblings.
Alfredo also allegedly used his father’s name to obtain a loan (in millions) from China Banking Corp.
He failed to pay such amount to his father. Alfredo and his wife also allegedly acquired customers
from Travel Center of the Philippines which was managed by Segundo and his daughter Virginia.

Upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc. No. 99–93396 were consolidated.
Private respondents moved for the dismissal of the probate proceedings primarily on the ground that
the document purporting to be the holographic will of Segundo does not contain any disposition of the
estate of the deceased and thus does not meet the definition of a will under Article 783 of the Civil
Code.

Respondents’ allegations:
 the will only shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else;
 that all other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence, there is preterition
which would result to intestacy.

Petitioners filed their opposition to the motion to dismiss contending that:

 generally, the authority of the probate court is limited only to a determination of the extrinsic validity of the will;
 private respondents question the intrinsic and not the extrinsic validity of the will;
 disinheritance constitutes a disposition of the estate of a decedent; and
 the rule on preterition does not apply because Segundo’s will does not constitute a universal heir or heirs to the
exclusion of one or more compulsory heirs.

RTC: Dismissed the petition for probate proceedings. Petitioners’ MR was denied by the RTC.

ISSUE: Whether the document executed by Segundo can be considered as a holographic will.

HELD: A holographic will, as provided under Article 810 of the Civil Code, must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made
in or out of the Philippines, and need not be witnessed.

Segundo’s document, although it may initially come across as a mere disinheritance instrument,
conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by
the hand of Segundo himself. An intent to dispose mortis causa can be clearly deduced from the terms
of the instrument, and while it does not make an affirmative disposition of the latter’s property, the
disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words, the
disinheritance results in the disposition of the property of the testator Segundo in favor of those who
would succeed in the absence of Alfredo.

Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form
and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules
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of construction are designed to ascertain and give effect to that intention. It is only when the intention
of the testator is contrary to law, morals, or public policy that it cannot be given effect.

Holographic wills, therefore, being usually prepared by one who is not learned in the law, as
illustrated in the present case, should be construed more liberally than the ones drawn by an expert,
taking into account the circumstances surrounding the execution of the instrument and the intention
of the testator. In this regard, the Court is convinced that the document, even if captioned as
Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last testamentary act and
was executed by him in accordance with law in the form of a holographic will. Unless the will is
probated, the disinheritance cannot be given effect.

Other Issues:
 With regard to the issue on preterition, the Court believes that the compulsory heirs in the direct line were not
preterited in the will. It was, in the Court’s opinion, Segundo’s last expression to bequeath his estate to all his
compulsory heirs, with the sole exception of Alfredo.
 Also, Segundo did not institute an heir to the exclusion of his other compulsory heirs. The mere mention of the name
of one of the petitioners, Virginia, in the document did not operate to institute her as the universal heir. Her name
was included plainly as a witness to the altercation between Segundo and his son, Alfredo.
 With regard to the reasons for the disinheritance that were stated by Segundo in his document, the Court believes
that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and
that the matter presents a sufficient cause for the disinheritance of a child or descendant under Article 919 (6) of the
Civil Code which provides for “Maltreatment of the testator by word or deed, by the child or descendant.”

Considering that the questioned document is Segundo’s holographic will, and that the law favors
testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code
provides that no will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to dispose
of his property may be rendered nugatory.

In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be
probated. It is settled that testate proceedings for the settlement of the estate of the decedent take
precedence over intestate proceedings for the same purpose. Petition granted.
______________________________________________________________________

PAULA CONDE v. ROMAN ABAYA

G.R. No. 4275; March 23, 1909
ARELLANO, C.J.:

FACTS: Casiano Abaya, unmarried, the son of Romualdo Abaya and Sabina Labadia, died on the 6th
of April 1899; that Paula Conde, as the mother of the natural children Jose and Teopista Conde, whom
she states she had by Casiano Abaya, moved the settlement of the said intestate succession; that an
administrator having been appointed for the said estate Roman Abaya, a son of the said Romualdo
Abaya and Sabina Labadia, the parents of the late Casiano Abaya, came forward and opposed said
appointment and claimed it for himself as being the nearest relative of the deceased; that this was
granted by the court below; that Roman Abaya moved that, after due process of law, the
court declare him to be the sole heir of Casiano Abaya, to the exclusion of all other
persons, especially of Paula Conde, and to be therefore entitled to take possession of
all the property of said estate, and that it be adjudicated to him; and that the court ordered
the publication of notices for the declaration of heirs and distribution of the property of the estate.
(Ramon is the brother of deceased while Paula is allegedly the mother of Casiano’s children)

Paula Conde, in reply to the foregoing motion of Roman, filed a petition wherein she stated that she
acknowledged the relationship alleged by Roman, but that she considered that her right was superior
to his and moved for a hearing of the matter, and, in consequence of the evidence that she intended to
present she prayed that she be declared to have preferential rights to the property left by Casiano
Abaya, and that the same be adjudicated to her together with the corresponding products thereof.

Trial Court: Paula Conde should succeed to the hereditary rights of her children with respect to the
inheritance of their deceased natural father Casiano Abaya; and therefore, it is hereby declared that
she is the only heir to the property of the said intestate estate, to the exclusion of the administrator,
Roman Abaya.
 Ut in Omnibus Glorificetur Deus

By:QMBD_SBUCOL

Roman Abaya appealed to this Court.

ISSUE: Whether or not the mother of a natural child now deceased, but who survived the person
who, it is claimed, was his natural father, also deceased, may bring an action for the acknowledgment
of the natural filiation in favor of such child in order to appear in his behalf to receive the inheritance
from the person who is supposed to be his natural father.

The power to transmit the right of such action by the natural child to his descendants cannot be
sustained under the law, and still less to his mother.

In order to consider the spirit of the Civil Code nothing is more logical than to establish a comparison
between an action to claim the legitimacy, and one to enforce acknowledgment.

Art. 118. The action to claim its legitimacy may be brought by the child at any time of its lifetime and shall be transmitted to
its heirs, should it die during minority or in a state of insanity. In such cases the heirs shall be allowed a period of five years
in which to institute the action.

The action already instituted by the child is transmitted by its death to the heirs, if it has not lapsed
before then.

Art. 137. The actions for the acknowledgment of natural children can be instituted only during the life of the presumed
parents, except in the following cases:

1. If the father or mother died during the minority of the child, in which case the latter may institute the action before the
expiration of the first four years of its majority.
2. If, after the death of the father or mother, some instrument, before unknown, should be discovered in which the child is
expressly acknowledged.

In this case the action must be instituted within the six months following the discovery of such
instrument.

On this supposition the first difference that results between one action and the other consists in that
the right of action for legitimacy lasts during the whole lifetime of the child, that is, it can always
be brought against the presumed parents or their heirs by the child itself, while the right of action
for the acknowledgment of a natural child does not last his whole lifetime, and, as a general rule,
it cannot be instituted against the heirs of the presumed parents, inasmuch as it can be exercised only
during the life of the presumed parents.

An action for legitimacy is always brought against the heirs of the presumed parents in case of the
death of the latter, while the action for acknowledgment is not brought against the heirs of such
parents, with the exception of the two cases prescribed by article 137 transcribed above.

As to the transmission to the heirs of the child of the latter’s action to claim his legitimacy, or to obtain
the acknowledgment of his natural filiation, it is seen that the code grants it in the first case, but not
the second.

Therefore, the respective corollary of each of the two above-cited articles is: (1) That the right of action
which devolves upon the child to claim his legitimacy under article 118, may be transmitted to his
heirs in certain cases designated in the said article; (2) That the right of action for the
acknowledgment of natural children to which article 137 refers, can never be transmitted, for the
reason that the code makes no mention of it in any case, not even as an exception.

The right of action that devolves upon the child to claim his legitimacy lasts during his
whole life, while the right to claim the acknowledgment of a natural child lasts only
during the life of his presumed parents.

Usually the right of action for legitimacy devolving upon the child is of a personal
character and pertains exclusively to him, only the child may exercise it at any time
during his lifetime. As an exception, and in three cases only, it may be transmitted to
the heirs of the child, to wit, if he died during his minority, or while insane, or after
action had been already instituted.
 Ut in Omnibus Glorificetur Deus

By:QMBD_SBUCOL

An action for the acknowledgment of a natural child may, as an exception, be

exercised against the heirs of the presumed parents in two cases: first, in the event of
the death of the latter during the minority of the child, and second, upon the discovery
of some instrument of express acknowledgment of the child, executed by the father or
mother, the existence of which was unknown during the life of the latter. But as such
action for the acknowledgment of a natural child can only be exercised by him. It cannot be
transmitted to his descendants, or to his ascendants. Judgment appealed from is reversed.
______________________________________________________________________

CORNELIO PAMPLONA alias GEMINIANO PAMPLONA and APOLONIA ONTE v.

VIVENCIO MORETO et. al.
G.R. No. L-33187; March 31, 1980
GUERRERO, J.:

Case: Petition for certiorari by way of appeal from the CA decision affirming the CFI decision of Biñan.

FACTS: Flaviano Moreto and Monica Maniega were husband and wife. During their marriage, they
acquired adjacent lots (Nos. 1495, 4545, and 1496) of the Calamba Friar Land Estate, situated in
Calamba, Laguna, containing 781-544 and 1,021 square meters respectively and covered by certificates
of title issued in the name of "Flaviano Moreto, married to Monica Maniega."

The spouses Moreto begot during their marriage 6 children, namely, Ursulo, Marta, La Paz, Alipio,
Pablo, and Leandro, all surnamed Moreto.

Those who died intestate are:

 Ursulo Moreto; leaving as his heirs herein plaintiffs Vivencio, Marcelo, Rosario, Victor, Paulina, Marta and Eligio,
all surnamed Moreto.
 Marta Moreto; leaving as her heir plaintiff Victoria Tuiza.
 La Paz Moreto; leaving the following heirs, namely, herein plaintiffs Pablo, Severina, Lazaro, and Lorenzo, all
surnamed Mendoza.
 Alipio Moreto; leaving as his heir herein plaintiff Josefina Moreto.
 Pablo Moreto; leaving no issue and as his heirs his brother plaintiff Leandro Moreto and the other plaintiffs herein.
 Monica Maniega (mother) died intestate in Calamba, Laguna.

More than 6 years after the death of his wife Monica, Flaviano Moreto, without the consent of the
heirs of his wife, and before any liquidation of the conjugal partnership of him and Monica, executed
in favor of Geminiano Pamplona, married to Apolonia, the deed of absolute sale covering lot No. 1495.

The spouses Pamplona constructed their house on the eastern part of lot 1496 as Flaviano Moreto, at
the time of the sale, pointed to it as the land which he sold to Geminiano Pamplona. Rafael, son of the
spouses Pamplona also built his house within lot 1496. The vendor Flaviano Moreto and the vendee
Geminiano Pamplona thought all the time that the portion of 781 square meters which was the subject
matter of their sale transaction was No. 1495 and so lot No. 1495 appears to be the subject matter in
the deed of sale although the fact is that the said portion sold thought of by the parties to be lot No.
1495 is a part of lot No. 1496. Pamplona Spouses enlarged their house and constructed a piggery
corral at the back of said house.

Flaviano Moreto died intestate. The plaintiffs demanded on the defendants to vacate the premises
where they had their house and piggery on the ground that Flaviano Moreto had no right to sell the lot
which he sold to Geminiano Pamplona as the same belongs to the conjugal partnership of Flaviano
and his deceased wife and the latter was already dead when the sale was executed without the consent
of the plaintiffs who are the heirs of Monica.

The spouses Geminiano Pamplona and Apolonia Onte refused to vacate the premises occupied by
them and hence, this suit was instituted by the heirs of Monica Maniega seeking for the declaration of
the nullity of the deed of sale as regards one-half of the property subject matter of said deed.

After a relocation of lots 1495, 1496 and 4545 made by agreement of the parties, it was found out that
there was mutual error between Flaviano Moreto and the defendants in the execution of the deed of
sale because while the said deed recited that the lot sold is lot 1495, the real intention of the parties is
that it was a portion consisting of 781 sq. m. of lot 1496 which was the subject matter of their sale
transaction.
 Ut in Omnibus Glorificetur Deus

By:QMBD_SBUCOL

RTC: In favor of the heirs of Monica. But the sale is ordered valid with respect to the eastern one-half (1/2) of 1781 square
meters of Lot 1496 measuring 390.5 square meters of which defendants are declared lawful owners and entitled to its
possession.
CA: Affirmed RTC Decision.

Hence, this petition.

ISSUE: Whether under the facts and circumstances duly established by the evidence, petitioners are
entitled to the full ownership of the property in litigation, or only one-half of the same.

HELD: Yes, they are entitled to the full ownership of the subject property.

When the petitioners purchased the property from Flaviano Moreto his wife Monica had already been
dead six years before; hence, the conjugal partnership of the spouses Moreto had already been
dissolved. Accordingly, the estate became the property of a community between the surviving
husband, Flaviano Moreto, and his children with Monica in the concept of a co-ownership.

There is no dispute that the houses of the spouses Pamplona as well as that of their son Rafael,
including the concrete piggery coral adjacent thereto, stood on the land from 1952 up to the filing of
the complaint by the private respondents in 1961, or a period of over 9 years. And during said period,
the private respondents who are the heirs of Monica lived as neighbors to the petitioner-vendees, yet
lifted no finger to question the occupation, possession and ownership of the land purchased by the
Pamplonas, so that the Court is persuaded and convinced to rule that private respondents are in
estoppel by laches to claim half of the property, in dispute as null and void. Estoppel by laches is a
rule of equity which bars a claimant from presenting his claim when, by reason of abandonment and
negligence, he allowed a long time to elapse without presenting the same.

We agree with the petitioner that there was a partial partition of the co-ownership when at the time of
the sale Flaviano Moreto pointed out the area and location of the 781 sq. meters sold by him to the
petitioners-vendees on which the latter built their house and also that whereon Rafael, likewise
erected his house and an adjacent coral for piggery.

Since Flaviano Moreto was entitled to one-half pro-indiviso of the entire land area or 1,173 sq. meters
as his share, he had a perfect legal and lawful right to dispose of 781 sq. meters of his share to the
Pamplona spouses. Indeed, there was still a remainder of some 392 sq. meters belonging to him at the
time of the sale. Aafactual partition or termination of the co-ownership, although partial, was created,
and barred not only the vendor, Flaviano Moreto, but also his heirs, the private respondents herein
from asserting as against the vendees-petitioners any right or title in derogation of the deed of sale
executed by said vendor Flaiano Moreto.

Ruling: Judgment appealed from is AFFIRMED with modification in the sense that the sale made and
executed by Flaviano Moreto in favor of the petitioners-vendees is hereby declared legal and valid in
its entirely. Petitioners are hereby declared owners in full ownership of the 781 sq. meters at the
eastern portion of Lot 1496 now occupied by said petitioners and whereon their houses and piggery
coral stand.
______________________________________________________________________

ELLA A. GUERRERO, et. al. v. THE ESTATE OF THE LATE FELISA TAMIO DE BUENA
VENTURA, herein represented by RESURRECION A. BIHIS, et. al.
G.R. No. 211972; July 22, 2015
PERLAS-BERNABE, J.:

Case: Assailed in these consolidated petitions for review on certiorari are the CA Decisions which
modiefied the RTC Decision and thereby ordered:
(a) the nullification of the Deed of Sale dated January 23, 1997 in favor of Wilson Peter Go,
petitioners in G.R. No. 211972;
(b) the reconveyance of the disputed property to the Estate of Felisa Tamio; and
(c) the cancellation of TCT, as well as the issuance of a new title in the name of the Estate of
Felisa Tamio by the Register of Deeds.
 Ut in Omnibus Glorificetur Deus

By:QMBD_SBUCOL

FACTS: In 1960, Felisa, as owner of the subject property, transferred the same to her daughter Bella,
married to Delfin, Sr., and Felimon, Sr. to assist them in procuring a loan from the GSIS. In view
thereof, her title over the property, TCT No. 45951/T-233, was cancelled and a new one, TCT No.
49869, was issued in the names of Bella, married to Delfin, Sr., and Felimon, Sr. After it was lost, TCT
No. 49869 was reconstituted and TCT No. RT-74910 (49869) was issued in their names.

Upon Felisa's death in 1994, the Bihis Family, Felisa's other heirs who have long been occupying the
subject property, caused the annotation of their adverse claim over the same on TCT No. RT-74910
(49869). Subsequently, however, or on January 22, 1997, the said annotation was cancelled, and the
next day, the Heirs of Felimon, Sr. executed an Extrajudicial Settlement of his estate and caused its
annotation on said title. TCT No. RT-74910 (49869) was then cancelled and TCT No. N-170416 was
issued in the names of Bella, et al. Finally, by virtue of a Deed of Sale dated January 23, 1997, the
subject property was sold to Wilson and Peter, in whose names TCT No. 170475 currently exists.
Months later, or on October 17, 1997, the complaint for reconveyance and damages, docketed as Civil
Case No. Q-97-32515, was instituted.

RTC: (In favor of respondents) It concluded that it was the intention of the late Felisa to merely entrust to Bella and Felimon,
Sr. the subject property for the sole purpose of using the same as collateral to secure a loan with the GSIS. Felisa never
intended to relinquish her ownership over the subject property.

CA: upheld the RTC's finding that on the matter of implied trust but it modified RTC’s ruling.

ISSUES:
1) Whether or not there was an express trust established between Felisa, on the one hand, and
Bella, Delfin, Sr., and Felimon, Sr., on the other;
2) Whether or not the present action for reconveyance has not yet prescribed; and
3) Whether or not Wilson and Peter are purchasers in good faith.

HELD:
1) Yes. Trust is the right to the beneficial enjoyment of property, the legal title to which is vested
in another. It is a fiduciary relationship that obliges the trustee to deal with the property for
the benefit of the beneficiary. Trust relations between parties may either be express or
implied. An express trust is created by the intention of the trustor or of the parties, while an
implied trust comes into being by operation of law.

Felisa executed a letter to Delfin during her lifetime. Taking the contents of the foregoing
letter into consideration – the validity and due execution of which were never put in issue,
hence, indubitably established - the Court therefore differs from the finding of the courts a
quo that an implied trust was established; instead, the Court rules that an express trust was
duly proved in this case.

The words of Felisa in the letter unequivocally and absolutely declared her intention of
transferring the title over the subject property to Bella, Delfin, Sr., and Felimon, Sr. in order
to merely accommodate them in securing a loan from the GSIS.

While the Court agrees with the RTC, as affirmed by the CA, that Bella, Delfin, Sr., and
Felimon, Sr. only hold the subject property in trust for Felisa, the Court however finds that an
express trust, not an implied one, was established in this case.

3) Yes. The action for reconveyance instituted by respondents has not yet prescribed, following
the jurisprudential rule that express trusts prescribe in ten (10) years from the time the trust
is repudiated.
4) No. Wilson and Peter are NOT purchasers of the subject property in good faith. Wilson
claimed to have verified the validity of the title covering the subject property before the
Registry of Deeds. However, he also admitted that two (2) months had lapsed before the sale
could be consummated because his lawyer advised him to request Bella, one of the sellers, to
cancel the encumbrance annotated on the title of the subject property. He also claimed that he
had no knowledge about the details of such annotation, and that he was aware that individuals
other than the sellers were in possession of the subject property. As aptly concluded by the
CA, such knowledge of the existence of an annotation on the title covering the subject
property and of the occupation thereof by individuals other than the sellers negates any
presumption of good faith on the part of Wilson and Peter when they purchased the subject
 Ut in Omnibus Glorificetur Deus

By:QMBD_SBUCOL

property. A person who deliberately ignores a significant fact which would create suspicion in
an otherwise reasonable man is not an innocent purchaser for value, as in this case.
Petitions are denied.
______________________________________________________________________

Estate of the deceased Paulino Diancin; TEOPISTA DOLAR v. FIDEL DIANCIN, ET AL.
G.R. No. L-33365; December 20, 1930
MALCOLM, J.:

FACTS: The will of the deceased Paulino Diancin was denied probate in the CFI of Iloilo on the sole
ground that the thumbmarks appearing thereon were not the thumbmarks of the testator.

The will in question is alleged to have been executed by Paulino Diancin at Dumangas, Iloilo in
November 1927. A thumbmark appears at the end of the will and on the left hand margin of each of its
pages in the following manner: "Paulino Diancin, Su Signo, Por Pedro Diamante." The witnesses to
the will were the same Pedro Diamante, Inocentes Deocampo, and Juan Dominado. The will is
detailed in nature, and disposes of an estate amounting approximately to P50,000.

For comparative purposes:

 Exhibit 8, a document of sale containing an admittedly genuine thumbmark of Paulino
Diancin, was presented.
 One, Carlos Jaena, attempted to qualify as an "expert," and gave as his opinion that the
thumbmarks had not been made by the same person.
 One, Jose Villanueva, likewise attempted to qualify as were authentic.

The petition by the proponent of the will to have it sent to Manila to be examined by an expert was
denied. The opposing witnesses agreed that that the ink used to make the thumbmarks on the will was
of the ordinary type which blurred the characteristics of the marks.

RTC: great differences existed between the questioned marks and the genuine mark.

ISSUE: Whether or not the document presented for probate as the last will of the deceased Diancin
was, in truth, his will, and that the thumbmarks appearing thereon were his thumbmarks.

HELD: Yes. The requirement of the statute that the will shall be "signed" is satisfied not
only the customary written signature but also by the testator's or testatrix'
thumbmark.

The method of identification of fingerprints is a science requiring close study. Where thumb
impressions are blurred and many of the characteristic marks far from clear, thus rendering it difficult
to trace the features enumerated by experts as showing the identity or lack of identity of the
impressions, the court is justified in refusing to accept the opinions of alleged experts and in
substituting its own opinion that a distinct similarity in some respects between the admittedly genuine
thumbmark and the questioned thumbmarks, is evident.

There is another means of approach to the question and an obvious one. The three instrumental
witnesses united in testifying concerning the circumstances surrounding the execution of the will.
Diosdado Dominado was called as a witness by the oppositors to the will to identify Exhibit 8 and was
placed on the witness stand by the proponent on rebuttal, and thereupon declared positively that he
was the one who prepared the will for the signature of Diancin; that the thumbmarks appearing on the
will were those of Diancin, and that he saw Diancin make these impressions. The testimony of a
witness called by both parties is worthy of credit. The will is hereby ordered admitted to probate.
______________________________________________________________________

YAP TUA v. YAP CA KUAN and YAP CA KUAN

G.R. No. 6845; September 1, 1914
JOHNSON, J.:

FACTS: (1909) Perfecto Gabriel, representing the petitioner, Yap Tua, presented a petition in the CFI
of Manila, asking that the will of Tomasa Elizaga Yap Caong be admitted to probate. It appears that
said Caong died in the city of Manila on the 11th day of August 1909. Accompanying said petition and
 Ut in Omnibus Glorificetur Deus

By:QMBD_SBUCOL

attached thereto was the alleged will of the deceased. It appears that the will was signed by the
deceased, as well as Anselmo Zacarias, Severo Tabora, and Timoteo Paez.

Timoteo Paez and Pablo Agustin declared that they were present at the time of the execution of
Caong’s will; that he Paez signed the will as a witness; that Anselmo Zacarias and Severo Tabora had
also signed said will as witnesses and that they had signed the will in the presence of the deceased;
that said Caong signed the will in the presence of the witnesses; and that she was in the possession of
her faculties; and that there were no threats or intimidation used to induce her to sign the will.

Judge Crossfield, judge ordered that the last will and testament of Caong be admitted to probate.
Yap Tua was appointed as executor of the will, upon the giving of a bond.

(1910) Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were
interested in the matters of the said will and desired to intervene and asked that a guardian ad litem
be appointed to represent them in the cause. Gabriel La O as guardian ad litem of said parties. La O
accepted said appointment. He appeared in court and presented a motion wherein he alleged that the
WILL WAS NULL because:
(a) it had not been authorized nor signed by the witnesses as the law prescribes;
(b) at the time of the execution of the will, Caong was not then mentally capacitated to execute
such due to her sickness;
(c) her signature to the will had been obtained through fraud and illegal influence;
(d) before the execution of the said will, Caong had executed another will, with all the
formalities required by law (August 6, 1909); and
(e) Yap Ca Kuan and Yap Ca Llu, even though they had been negligent in presenting their
opposition to the legalization of the will, said negligence was excusable, on account of their
age minority.

Request for New Trial

Grounds: Caong had not signed the will (Exhibit A) of the 11th of August, 1909.

During the Rehearing

 Respondents presented Tomas Puzon as an expert witness who testified that the name and
surname on the will executed on August 11, 1909 were written by two different hands.
 La O was called as a witness and testified that he had drawn the August 06, 1909 Will at the
request of Caong; that it was drawn in accordance with her request and under her directions,
and satisfied the formalities of a valid will.
 Rufino R. Papa, a physician, was also called as a witness for the purpose of supporting the
allegation that Tomasa Elizaga Yap Caong was mentally incapacitated as she was on the third
stage of tuberculosis and was very weak to make the will dated August 11, 1909.
 Anselmo Zacarias said that he signed the will of August 11, 1909; that he had written the will
at the request of the uncle of Tomasa; that it was all in his writing except the last part, which
was written by Carlos Sobaco; that Lorenzo, the brother of the deceased, was the one who had
instructed him as to the terms of the will; that the will was written in the dining room
of the residence of the deceased; that Tomasa was in another room different
from that in which the will was written; that the will was not written in the
presence of Tomasa.
 Other witnesses: Severo Tabora and Clotilde Mariano

In rebuttal:
 Julia Dela Cruz was called and testified that she lived in the house of Tomasa during the last
week of her illness; that Tomasa had made two wills; that she was present when the second
one was executed; that a lawyer had drawn the will in the dining room and it was taken to
where Doña Tomasa was, for her signature; and that a notary public came the next morning;
that Tomasa was able to move about in the bed; that she had seen Tomasa in the act of
starting to write her signature when she told her to get her some water.
 Lorenzo Caong testified that he knew Anselmo Zacarias and that Zacarias wrote the will of
Tomasa; that Tomasa had given him instructions; that Tomasa had said that she sign the will.

Judge Crossfield reached the conclusion that:

 Ut in Omnibus Glorificetur Deus

By:QMBD_SBUCOL

 the last will and testament of Tomasa Caong, marked Exhibit A (August 11, 1909 Will) was her
last will and testament and admitted it to probate and ordered that the administrator
appointed should continue as such. Respondents appealed such order. Hence, this case.

ISSUES: Whether or not the Court erred in declaring that:

1) Exhibit A, was executed by the deceased Tomasa Caong, without the intervention of any
external influence on the part of other persons;
2) the testator had clear knowledge and knew what she was doing at the time of signing the will;
3) the signature of the deceased Tomasa Yap Caong in the first will is identical with that which
appears in the second will Exhibit A; and
4) the will, Exhibit A, was executed in accordance with the law.

HELD:
1) No. While it is true that some of the witnesses testified that the brother of Tomasa, one
Lorenzo, had attempted to unduly influence her mind in the execution of he will, upon the
other hand, there were several witnesses who testified that Lorenzo did not attempt, at the
time of the execution of the will, to influence her mind in any way. The lower court having had
an opportunity to see, to hear, and to note the witnesses during their examination reached the
conclusion that a preponderance of the evidence showed that no undue influence had been
used. The SC found no good reason in the record for reversing such conclusions.

2) No. While the testimony of Dr. Papa is very strong relating to the mental condition of Tomasa
Caong, yet, nevertheless, his testimony related to a time perhaps twenty-four hours before the
execution of the will in question (Exhibit A). Several witnesses testified that at the time the
will was presented to her for her signature, she was of sound mind and memory and asked for
a pen and ink and kept the will in her possession for ten or fifteen minutes and finally signed
it. In view of the conflict in the testimony of the witnesses and the finding of the lower court,
the SC do not feel justified in reversing the conclusion of the lower court that there was a
preponderance of evidence sustaining the allegation that Tomasa Caong was of sound mind
and memory at the time she signed this will.

3) No, for the following reasons:

First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 was
not the question presented to the court. The question presented was whether or not she had
duly executed the will of August 11, 1909.

Second. There appears to be but little doubt that Tomasa Caong did execute the will of August
6, 1909. Several witnesses testified to that fact. The mere fact, however, that she executed a
former will is no proof that she did not execute a later will. She had a perfect right to change,
alter, modify or revoke any and all of her former wills and to make a new one. Neither will the
fact that the new will fails to expressly revoke all former wills, in any way sustain the charge
that she did not make the new will.

Third. Several witnesses testified that they saw her write the name "Tomasa." The Court holds
that if Tomasa Caong signed any portion of her name to the will, with the intention to sign the
same, such will amount to a signature. It has been held time and time again that one
who makes a will may sign the same by using a mark, the name having been
written by others. If writing a mark simply upon a will is sufficient indication
of the intention of the person to make and execute a will, then certainly the
writing of a portion or all of her name ought to be accepted as a clear
indication of her intention to execute the will.

In the present case, by a large preponderance, Tomasa Elizaga Yap Caong, if

she did not sign her full name, did at least sign her given name "Tomasa," and
that is sufficient to satisfy the statute.

4) No. Conflicting statements were forward as to whether or not the testator and the witnesses
signed the will in each other’s presence. A plan of the room or rooms in which the will was
signed was presented as proof and it was shown that there was but one room; that one part of
the room was one or two steps below the floor of the other; that the table on which the
 Ut in Omnibus Glorificetur Deus

By:QMBD_SBUCOL

witnesses signed the will was located upon the lower floor of the room. It was also shown that
from the bed in which Tomasa was lying, it was possible for her to see the table on which the
witnesses signed the will. While the rule is absolute that one who makes a will must sign the
same in the presence of the witnesses and that the witnesses must sign in the presence of each
other, as well as in the presence of the testator, yet, nevertheless, the actual seeing of the
signatures made is not necessary. It is sufficient if the signatures are made where it
is possible for each of the necessary parties, if they desire to see, may see the
signatures placed upon the will. (Meaning of the “in the presence of”). Hence, it is
established that Tomasa did execute, freely and voluntarily the will dated August 11, 1909.

______________________________________________________________________

EUTIQUIA AVERA v. MARINO GARCIA, and JUAN RODRIGUEZ

G.R. No. 15566; September 14, 1921
STREET, J.:

FACTS: Eutiquia Avera presented for probate the will of one Esteban Garcia. Contest was made by
Marino Garcia and Juan Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia
and Cesar Garcia. During hearing, the proponent of the will introduced one of the three attesting
witnesses who testified that the will was executed with all necessary external formalities, and that the
testator was at the time in full possession of disposing faculties. Upon the latter point the witness was
corroborated by the person who wrote the will at the request of the testator. Two of the attesting
witnesses were not introduced, nor was their absence accounted for by the proponent of the will.

Oppositor: The will was made the testator was so debilitated as to be unable to comprehend what he
was about.

RTC: At the time of the making of the will, testator was of sound mind and disposing memory and
that the will had been properly executed. He accordingly admitted the will to probate.

From this judgment an appeal was taken in behalf of the persons contesting the will.

ISSUES: Whether or not

1) A will can be admitted to probate, where opposition is made, upon the proof of a single
attesting witness, without producing or accounting for the absence of the other two; and
2) The will in question is rendered invalid by reason of the fact that the signature of the testator
and of the three attesting witnesses are written on the right margin of each page of the will
instead of the left margin.

HELD:
1) No, in general, but as to this case, the issue was not raised at the lower court and cannot now
be raised for the first time in appeal. Hence, the Court held that “while it is undoubtedly true
that an uncontested will may be proved by the testimony of only one of the three attesting
witnesses, nevertheless in Cabang vs. Delfinado, this court declared after an elaborate
examination of the American and English authorities that when a contest is instituted, all of
the attesting witnesses must be examined, if alive and within reach of the process of the
court.”

In the present case no explanation was made at the trial as to why all three of the attesting
witnesses were not produced, but the probable reason is found in the fact that, although the
petition for the probate of this will had been pending from December 21, 1917, until the date
set for the hearing, which was April 5, 1919, no formal contest was entered until the very
day set for the hearing; and it is probable that the attorney for the proponent, believing in
good faith the probate would not be contested, repaired to the court with only one of the
three attesting witnesses at hand, and upon finding that the will was contested, incautiously
permitted the case to go to proof without asking for a postponement of the trial in order that
he might produce all the attesting witnesses.

2) No. It is true that the statute says that the testator and the instrumental witnesses shall sign
their names on the left margin of each and every page; and it is undeniable that the general
 Ut in Omnibus Glorificetur Deus

By:QMBD_SBUCOL

doctrine is to the effect that all statutory requirements as to the execution of wills must be
fully complied with.

Still some details at times creep into legislative enactments which are so trivial
it would be absurd to suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect that the signatures of
the testator and witnesses shall be written on the left margin of each page —
rather than on the right margin — seems to be this character.

In Re will of Abangan, where the court, speaking through Mr. Justice Avanceña, in a case where the
signatures were placed at the bottom of the page and not in the margin, said: The object of the
solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution o will and testaments and to guarantee their truth and authenticity. Therefore the
laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on
the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already given assures
such ends, any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.
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In the matter of the testate estate of Antonio Mojal, FILOMENA NAYVE v. LEONA
MOJAL and LUCIANA AGUILAR
G.R. No. L-21755; December 29, 1924
ROMUALDEZ, J.:

FACTS: Filomena Nayve instituted a proceeding for the probate of the will of her husband Antonio
Mojal. The probate is opposed by Leona Mojal and Luciana Aguilar, sister and niece, respectively, of
the deceased.

The will in question is composed of four sheets with written matter on only one side of each. The four
sides or pages containing written matter are paged "Pag. 1," "Pag. 2," "Pag. 3," "Pag. 4," successively.
Each of the first two sides or pages, which was issued, was signed by the testator and the three
witnesses on the margin, left side of the reader. The third page actually used was signed by the
testator, not on the left margin, as it was by the witnesses, but about the middle of the page and the
end of the will; and that the fourth page was signed by the witnesses, not on the left margin, as it was
by the testator, but about the middle of the page and at the end of the attestation clause.

CFI: Overruled the objections to the will, and ordered the probate thereof.

ISSUES: Whether or not the will is invalid, because:

1) It was not signed by the testator and the witnesses on each and every sheet on the left margin;
signatures do not appear at the left margin;
2) The sheets of the document not being paged with letters;
3) The attestation clause does not state the number of sheets or pages actually used of the will;
and
4) The testator does not appear to have signed all the sheets in the presence of the three
witnesses, and the latter to have attested and signed all the sheets in the presence of the
testator and of each other.

HELD:
1) No. As each and every page used of the will bears the signatures of the testator and the
witnesses, the fact that said signatures do not all appear on the left margin of each page does
not detract from the validity of the will, applying the ruling in the case of Avera v. Garcia.
2) No. Applying the ruling in Unson vs. Abella where this court held that paging with Arabic
numerals and not with letters, as in the case before us, is within the spirit of the law and is just
as valid as paging with letters.
3) No. It must be noted that the last paragraph of the will here in question and the attestation
clause, coming next to it, are of the following tenor:

“In witness whereof, I set my hand unto this will here in the town of Camalig, Albay, Philippine Islands, this 26th
day of November, nineteen hundred and eighteen, composed of four sheets, including the next:
 Ut in Omnibus Glorificetur Deus

By:QMBD_SBUCOL

ANTONIO MOJAL

(Signed and declared by the testator Don Antonio Mojal to be his last will and testament in the presence of each of
us, and at the request of said testator Don Antonio Mojal, we signed this will in the presence of each other and of the
testator.)

PEDRO CARO
SILVERIO MORCO
ZOILO MASINAS

In the case before us, such fact, while it is not stated in the attestation clause, appears at the
end of the will proper, so that no proof aliunde is necessary of the number of the sheets of the
will, then there can be no doubt that it complies with the intention of the law that the number
of sheets of which the will is composed be shown by the document itself, to prevent the
number of the sheets of the will from being unduly increased or decreased.

4) It must be noted that in the attestation clause above that the testator signed the will "in the
presence of each of the witnesses" and the latter signed "in the presence of each other and of
the testator." So that, as to whether the testator and the attesting witnesses saw each other
sign the will, such a requirement was clearly and sufficiently complied with.

What is not stated in this clause is whether the testator and the witnesses
signed all the sheets of the will. The fact that the testator and the witnesses having
signed all the sheets of the will may be proven by the mere examination of the document,
although it does not say anything about this, and if that is the fact, as it is in the instant case,
the danger of fraud in this respect, which is what the law tries to avoid, does not exist.

Therefore, as in the instant case the fact that the testator and the witnesses
signed each and every page of the will is proven by the mere examination of the
signatures in the will, the omission to expressly state such evident fact does not
invalidate the will nor prevent its probate.
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