Case 46

G. R. No. 123486. August 12, 1999. * EUGENIA RAMONAL

CODOY and MANUEL RAMONAL, petitioners, vs. EVANGELINE
R. CALUGAY, JOSEPHINE SALCEDO and EUFEMIA PATIGAS,
respondents.

Facts:
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 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 the will was
written voluntarily.

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed
an opposition
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

the 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.

On November 26, 1990, the lower Court issued an order 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

On December 12, 1990, respondents filed a notice o appeal.On

October 9, 1995, the Court of Appeals, rendered deci sion 9 ruling that
the appeal was meritorious
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 o the
holographic will and the handwriting and signature therein, and allowed
the will to probate

Issue:
WON the provisions of Article 811 of 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
Held:
YES.
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.

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

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,

In the case of Ajero vs. Court of Appeals, we said that “the object of
the solemnities surrounding the execution o 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 ugust 30, 1978,
and the signatures in several documents such as the application letter
for pasture permit dated December 30, 1980, and a letter dated June
16, 1978, 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
the holographic will was in the handwriting by the deceased

IN VIEW WHEREOF, the decision appealed from is SET SIDE.

Case 47
No. L-40207. September 28, 1984. * ROSA K. KALAW, petitioner, vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI o
Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.

Facts:
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 o First Instance of Batangas, Branch VI,
Lipa City, for the probate of her holographic Will executed on December
24, 1968.

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, 1973

From that Order, GREGORIO moved for reconsideration arguing that

since the alterations and/or insertions were made by the testatrix, the
denial to probate of her holographic Will would be contrary to her right
o 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.”

Issue:

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.

Held:
NO
when a number of erasures, corrections, and interlineations made by
the testator in a holographic Will have not been noted under his
signature, x x x the Will is not thereby invalidated as a whole, but at
most only as respects the particular words erased, corrected or
interlined.

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 o 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.

WHEREFORE, this Petition is hereby dismissed and the Decision of

respondent Judge, dated September 3, 1973, is hereby affirmed in toto.
Case 48
Case 49
No. L-20234. December 23, 1964. PAULA DE LA CERNA, ET AL.,
petitioners, vs. MANUELA REBACA POTOT, ET AL., and THE
HONORABLE COURT OF APPEALS, respondents.

Facts:
on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia
Rebaca, executed a joint last will and testament in the local dialect
whereby they willed that ‘our two parcels of land acquired during our
marriage together with all improvements thereon shall be given to
Manuela Rebaca, our niece, whom we have nurtured since childhood,
because God did not give us any child in our union, Manuela Rebaca
being married to Nicolas Potot’, and that ‘while each of the testators is
yet living, he or she will continue to enjoy.the fruits of the two lands
aforementioned’, the said two parcels of land being covered by Tax No.
4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo,
municipality of Borbon, province of Cebu

Upon the death of Gervasia Rebaca on October 14, 1952, another

petition for the probate of the same will insofar as Gervasia was
concerned was filed on November 6, 1952, being Special Proceedings
No. 1016-R of the same Court of First Instance of Cebu, but for failure
of the petitioner, Manuela R. Potot, and her attorney, Manuel Potot to
appear, for the hearing of said petition, the case was dismissed on
March 30, 1954 (Spec. Proc. No. 1016-R, In the matter of the Probate
of the Will of Gervasia Rebaca).

The Court of First Instance ordered the petition heard and declared the
testament null and void, for being executed contrary to the prohibition
of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art.
818,Civil Code of the Philippines); but on appeal by the testamentary
heir, the Court of Appeals reversed, on the ground that the decree of
probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament.

It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code)
prohibits the making of a will jointly by two or more persons either for
their reciprocal benefit or for the benefit of a third person. However,
this form of will has long been sanctioned by use, and the same has
continued to be used; and when, as in the present case, one such joint
last will and testament has been admitted to probate by final order of a
Court of competent jurisdiction, there seems to be no alternative except
to give effect to the provisions thereof that are not contrary to law

Issue:
WON the CA erred in deciding that the will is valid

Held:
NO.
The error thus committed by the probate court was an error of law,
that should have been corrected by appeal, but which did not affect the
jurisdiction of the probate court, nor the
conclusive effect of its final decision, however erroneous. A final
judgment rendered on a petition for the probate of a will is binding
upon the whole world;and public policy and sound practice demand that
at the risk o occasional errors judgment of courts should become final
at some definite date fixed by law.

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are

concluded by the 1939 decree admitting his will to probate. The
contention that being void the will cannot be validated, overlooks that
the ultimate decision on whether an act is valid or void rests with the
courts, and here they have spoken with finality when the will was
probated in 1939. On this court, the dismissal of their action for
partition was correct

But the Court of Appeals should have taken into account also, to avoid
future misunderstanding, that the probate decree in 1939 could only
affect the share of the deceased husband, Bernabe de la Cerna. It could
not include the disposition of the share of the wife, Gervasia Rebaca,
who was then still alive, and over whose interest in the conjugal
properties the probate court acquired no jurisdiction, precisely because
her estate could not then be in issue. Be it remembered that prior to
the new Civil Code, a will could not be probated during the testator’s
lifetime.

It follows that the validity of the joint will, in so far as the estate of the
wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate will of
each testator. Thus regarded, the holding of the Court of First Instance
of Cebu that the oint will is one prohibited by law was correct as to the
participation of the deceased Gervasia Rebaca in the properties in
question

Therefore, the undivided interest of Gervasia Rebaca should pass upon

her death to her heirs intestate, and not exclusively to the testamentary
heir, unless some other valid will in her favor is shown to exist, or
unless she be the only heir intestate of said Gervasia.

it is unnecessary to emphasize that the fact that joint wills should be in

common usage could not make them valid when our Civil Codes
consistently invalidated them, because laws are only repealed by other
subsequent laws, and no usage to the contrary may prevail against
their bservance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code o the
Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the udgment of the Court of

Appeals in CA-G.R. No. 23763-R is affirmed
Case 50
[No. 17857, June 12, 1922] In re will of Josefa Zalamea y Abella,
deceased. PEDRO UNSON, petitioner and appellee, vs. ANTONIO ABELL
ET AL., opponents and appellants.

Facts:
On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60 years old,
who was residing in the municipality o Pagsanjan, Province of Laguna,
executed her last will and testament with an attached inventory of her
properties, Exhibits A and A-1, in the presence of three witnesses, who
signed with her all the pages of said documents.

The testatrix died on the 6th of January, 1921, and, as the record
shows, the executor appointed in the will, Pedro Unson, filed in the
Court of First Instance of Laguna on the 19th of January of the same
year an application for the probate of the will and the issuance of the
proper letters of administration in his favor.

To said application an opposition was presented by ntonio Abella,

Ignacia Abella, Avicencia Abella, and Santiago Vito, alleging that the
supposed will of the deceased Zalamea was not executed in conformity
with the provisions of the law, inasmuch as it was not paged
correlatively in letters, nor was there any attestation clause in it, nor
was it signed by the testatrix and the witnesses in the presence of each
other.

Trial having been held, the judge a quo overruled the opposition of the
contestants, and ordered the probate o the will, Exhibit A, and the
inventory, Exhibit A-1, holding that both documents contained the true
and last will o the deceased Josefa Zalamea.

From the judgment of the court below, the contestants have appealed
Issues:
1. WON the will of the deceased Josefa Zalamea, was executed with all
the solemnities required by the law
2. WON the court below erred in admitting the will to probate
notwithstanding the omission of the proponent to produce one of the
attesting witnesses
3. WON the will be probated despite the fact that the inventory
attached has no attestation clause in it, and its paging is made in Arabic
numerals and not in letters

Held:
1. YES
The attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly
testify that together with the other witness to the will, Pedro de Jesus,
they did sign each and every page of the will and of the inventory in the
presence of each other and of the testatrix, as the latter did likewise
sign all the pages of the will and of the inventory in their presence.

We deem this allegation o little importance to impeach the credibility of

the witness Zalamea, especially because his testimony is corroborated
by the other attesting witness, Gonzalo Abaya, and by attorney Luis
Abaya, who had prepared the testament at the instance of the testatrix.
The foregoing is sufficient for us to conclude that the first assignment
of error made by the appellants is groundless.

2.NO
at the trial of this case the attorneys for the proponent stated to the
court that they had necessarily to omit the testimony of Pedro de Jesus,
one of the persons who appear to have witnessed the execution of the
will, for there were reasonable grounds to believe that said witness was
openly hostile to the proponent, inasmuch as since the announcement
of the trial of the petition f or the probate o the will, said witness has
been in frequent communication with the contestants and their
attorney, and has refused to hold any conference with the attorneys for
the proponent.

In the case of vera vs. Garcia and Rodriguez (42 Phil., 145), recently
decided by this court, in deciding the question whether a will can be
admitted to probate, where opposition is made, upon the proof of a
single attesting witness, without producing or accounting for the
absence o the other two, it was said; "while it is undoutedly true that
an uncontested will may be proved by the testimony of only one of the
three attesting witnesses,the attesting witnesses must be examined, if
alive and within reach of the process of the court.

In the case at bar, we do not think this question properly to have been
raised at the trial, but in the memorandum submitted by the attorney
for the appellants to the trial court, he contended that the will could not
be admitted to probate because one of the witnesses to the will was not
produced, and that the voluntary non-production of this witness raises a
presumption against the pretension of the proponent. The trial court
found that the evidence introduced by the proponent, consisting of the
testimony of the two attesting witnesses and the other witness who
was present at the execution, and had charge of the preparation of the
will and the inventory, Exhibits A and A-1, was sufficient.

As announced in Cabang vs. Delfinado, supra, the general rule is

that, where opposition is made to the probate of a will, the
attesting witnesses must be produced. But there are
exceptions to this rule, for instance, when a witness is dead, or
cannot be served with process of the court, or his reputation
for truth has been questioned or he appears hostile to the
cause of the proponent. In such cases, the will may be
admitted to probate without the testimony of said witness, if,
upon the other proofs adduced in the case , the court is
satisfied that the will has been duly executed.

But supposing that said witness, when cited, had testified adversely to
the application, this would not by itself have change the result reached
by the court a quo, for section 632 of the Code of Civil Procedure
provides that a will can be admitted to probate, notwithstanding that
one or more witnesses do not remember having attested it, provided
the court is satisfied upon the evidence adduced that the will has been
executed and signed in the manner prescribed by the law

Wherefore, we find that the non production of the attesting witness,

Pedro de Jesus, as accounted for by the attorney for the proponent at
the trial, does not render void the decree of the court a quo, allowing
the probate

3.YES
In view of the fact that the inventory is referred to in the will as an
integral part of it, we find that the foregoing attestation clause is in
compliance with section 1 of Act No. 2645, which requires this
solemnity for the validity of a will, and makes unnecessary any
other attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we
adhere to the doctrine announced in the case of Aldaba vs. Roque (p.
378, ante), recently decided by this court. In that case the validity of
the will was assailed on the ground that its folios were paged with the
letters A, B, C, etc., instead of with the letters "one," "two," "three,"
etc. It was held that this way of numbering the pages of a will is
in compliance with the spirit of the law, inasmuch as either one
of these methods indicates the correlation of the pages and
serves to prevent the abstraction of any of them. In the course
of the decision, we said: "It might be said that the object of the
law in requiring that the paging be made in letters ,is to make
falsification more difficult, but it should be noted that since all
the pages of the testament are signed In other words the more
or less degree of facility to imitate the writing of the letters A,
B, C, etc., does not make for the easiness to forge the
signatures. And as in the present case there exists the
guaranty of the authenticity of the testament, consisting in the
signatures on the left margins of the testament and the paging
thereof as declared in the attestation clause

We see no reason why the same rule should not be applied where the
paging is in Arabic numerals, instead of in letters, as in the inventory in
question. So that, adhering tothe view taken by this court in the case of
Abangan vs. Abangan, and followed in Aldaba vs. Roque, with regard to
the appreciation of the solemnities of a will, we find that the judgment
appealed from should be, as is hereby, affirmed with the costs against
the appellant