G.R. No.
L-7188             August 9, 1954 of the testator which according to the trial court is the controlling
In re: Will and Testament of the deceased REVEREND SANCHO
ABADIA.  dated January 24, 1952, admitted to probate Exhibit "A", as the Last
SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-
appellees,  appealing from that decision; and because only questions of law are
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G.
Advincula for appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia, parish priest of Talisay,
Cebu, executed a document purporting to be his Last Will and
Testament now marked Exhibit "A". Resident of the City of Cebu, he
died on January 14, 1943, in the municipality of Aloguinsan, Cebu,
where he was an evacuee. He left properties estimated at P8,000 in
value. On October 2, 1946, one Andres Enriquez, one of the legatees
in Exhibit "A", filed a petition for its probate in the Court of First
Instance of Cebu. Some cousins and nephews who would inherit the
estate of the deceased if he left no will, filed opposition.
During the hearing one of the attesting witnesses, the other two being
dead, testified without contradiction that in his presence and in the
presence of his co-witnesses, Father Sancho wrote out in longhand
Exhibit "A" in Spanish which the testator spoke and understood; that
he (testator) signed on he left hand margin of the front page of each of
the three folios or sheets of which the document is composed, and
numbered the same with Arabic numerals, and finally signed his name
at the end of his writing at the last page, all this, in the presence of the
three attesting witnesses after telling that it was his last will and that
the said three witnesses signed their names on the last page after the
attestation clause in his presence and in the presence of each other. The
oppositors did not submit any evidence.
The learned trial court found and declared Exhibit "A" to be a
holographic will; that it was in the handwriting of the testator and that
although at the time it was executed and at the time of the testator's
death, holographic wills were not permitted by law still, because at the
time of the hearing and when the case was to be decided the new Civil
Code was already in force, which Code permitted the execution of
holographic wills, under a liberal view, and to carry out the intention
factor and may override any defect in form, said trial court by order
Will and Testament of Father Sancho Abadia. The oppositors are
involved in the appeal, the case was certified to us by the Court of
Appeals.
The new Civil Code (Republic Act No. 386) under article 810 thereof
provides that a person may execute a holographic will which must be
entirely written, dated and signed by the testator himself and need not
be witnessed. It is a fact, however, that at the time that Exhibit "A"
was executed in 1923 and at the time that Father Abadia died in 1943,
holographic wills were not permitted, and the law at the time imposed
certain requirements for the execution of wills, such as numbering
correlatively each page (not folio or sheet) in letters and signing on the
left hand margin by the testator and by the three attesting witnesses,
requirements which were not complied with in Exhibit "A" because
the back pages of the first two folios of the will were not signed by any
one, not even by the testator and were not numbered, and as to the
three front pages, they were signed only by the testator.
Interpreting and applying this requirement this Court in the case of In
re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the
testator and his witnesses to sign on the left hand margin of every
page, said:
. . . . This defect is radical and totally vitiates the testament. It
is not enough that the signatures guaranteeing authenticity
should appear upon two folios or leaves; three pages having
been written on, the authenticity of all three of them should be
guaranteed by the signature of the alleged testatrix and her
witnesses.
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same
requirement, this Court declared:
From an examination of the document in question, it appears
that the left margins of the six pages of the document are
signed only by Ventura Prieto. The noncompliance with section
2 of Act No. 2645 by the attesting witnesses who omitted to
sign with the testator at the left margin of each of the five pages
of the document alleged to be the will of Ventura Prieto, is a
fatal defect that constitutes an obstacle to its probate.
What is the law to apply to the probate of Exh. "A"? May we apply the intestate succession. The general rule is that the Legislature can not
provisions of the new Civil Code which not allows holographic wills, validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).
like Exhibit "A" which provisions were invoked by the appellee-
petitioner and applied by the lower court? But article 795 of this same In view of the foregoing, the order appealed from is reversed, and
new Civil Code expressly provides: "The validity of a will as to its Exhibit "A" is denied probate. With costs.
form depends upon the observance of the law in force at the time it
is made." The above provision is but an expression or statement of the
weight of authority to the affect that the validity of a will is to be
G.R. No. L-32636             March 17, 1930
judged not by the law enforce at the time of the testator's death or at
In the matter Estate of Edward Randolph Hix, deceased. 
the time the supposed will is presented in court for probate or when the
A.W. FLUEMER, petitioner-appellant, 
petition is decided by the court but at the time the instrument was
vs.
executed. One reason in support of the rule is that although the will
ANNIE COUSHING HIX, oppositor-appellee.
operates upon and after the death of the testator, the wishes of the
C.A. Sobral for appellant.
testator about the disposition of his estate among his heirs and among
Harvey & O' Brien and Gibbs & McDonough for appellee.
the legatees is given solemn expression at the time the will is executed,
MALCOLM, J.:
and in reality, the legacy or bequest then becomes a completed act.
The special administrator of the estate of Edward Randolph Hix
This ruling has been laid down by this court in the case of In re Will of
appeals from a decision of Judge of First Instance Tuason denying the
Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.
probate of the document alleged to by the last will and testament of the
Of course, there is the view that the intention of the testator should be
deceased. Appellee is not authorized to carry on this appeal. We think,
the ruling and controlling factor and that all adequate remedies and
however, that the appellant, who appears to have been the moving
interpretations should be resorted to in order to carry out said
party in these proceedings, was a "person interested in the allowance
intention, and that when statutes passed after the execution of the will
or disallowance of a will by a Court of First Instance," and so should
and after the death of the testator lessen the formalities required by law
be permitted to appeal to the Supreme Court from the disallowance of
for the execution of wills, said subsequent statutes should be applied
the will (Code of Civil Procedure, sec. 781, as amended; Villanueva
so as to validate wills defectively executed according to the law in
vs. De Leon [1925], 42 Phil., 780).
force at the time of execution. However, we should not forget that
It is theory of the petitioner that the alleged will was executed in
from the day of the death of the testator, if he leaves a will, the title of
Elkins, West Virginia, on November 3, 1925, by Hix who had his
the legatees and devisees under it becomes a vested right, protected
residence in that jurisdiction, and that the laws of West Verginia Code,
under the due process clause of the constitution against a subsequent
Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified
change in the statute adding new legal requirements of execution of
to by the Director of the National Library. But this was far from a
wills which would invalidate such a will. By parity of reasoning, when
compliance with the law. The laws of a foreign jurisdiction do not
one executes a will which is invalid for failure to observe and follow
prove themselves in our courts. the courts of the Philippine Islands are
the legal requirements at the time of its execution then upon his death
not authorized to take American Union. Such laws must be proved as
he should be regarded and declared as having died intestate, and his
facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the
heirs will then inherit by intestate succession, and no subsequent law
requirements of the law were not met. There was no was printed or
with more liberal requirements or which dispenses with such
published under the authority of the State of West Virginia, as
requirements as to execution should be allowed to validate a defective
provided in section 300 of the Code of Civil Procedure. Nor was the
will and thereby divest the heirs of their vested rights in the estate by
extract from the law attested by the certificate of the officer having
charge of the original, under the sale of the State of West Virginia, as
provided in section 301 of the Code of Civil Procedure. No evidence
was introduced to show that the extract from the laws of West Virginia
was in force at the time the alleged will was executed.
In addition, the due execution of the will was not established. The only
evidence on this point is to be found in the testimony of the petitioner.
Aside from this, there was nothing to indicate that the will was
acknowledged by the testator in the presence of two competent
witnesses, of that these witnesses subscribed the will in the presence of
the testator and of each other as the law of West Virginia seems to
require. On the supposition that the witnesses to the will reside without
the Philippine Islands, it would then the duty of the petitioner to prove
execution by some other means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his
domicile in West Virginia and not establish this fact consisted of the
recitals in the CATHY will and the testimony of the petitioner. Also in
beginning administration proceedings orginally in the Philippine
Islands, the petitioner violated his own theory by attempting to have
the principal administration in the Philippine Islands.
While the appeal pending submission in this court, the attorney for the
appellant presented an unverified petition asking the court to accept as
part of the evidence the documents attached to the petition. One of
these documents discloses that a paper writing purporting to be the was
presented for probate on June 8, 1929, to the clerk of Randolph
Country, State of West Virginia, in vacation, and was duly proven by
the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing
witnesses thereto , and ordered to be recorded and filed. It was shown
by another document that, in vacation, on June 8, 1929, the clerk of
court of Randolph Country, West Virginia, appointed Claude W.
Maxwell as administrator, cum testamento annexo, of the estate of
Edward Randolph Hix, deceased. In this connection, it is to be noted
that the application for the probate of the will in the Philippines was
filed on February 20, 1929, while the proceedings in West Virginia
appear to have been initiated on June 8, 1929. These facts are strongly
indicative of an intention to make the Philippines the principal
administration and West Virginia the ancillary administration.
However this may be, no attempt has been made to comply with Civil
Procedure, for no hearing on the question of the allowance of a will
said to have been proved and allowed in West Virginia has been
requested. There is no showing that the deceased left any property at
any place other than the Philippine Islands and no contention that he
left any in West Virginia.
Reference has been made by the parties to a divorce purported to have
been awarded Edward Randolph Hix from Annie Cousins Hix on
October 8, 1925, in the State of West specific pronouncements on the
validity or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed,
with the costs of this instance against the appellant.
GR No. L-4113 June 30, 1952
Testamentary of the deceased William R. Giberson. LELA G.
DALTON, applicant-appellant, 
vs. 
SPRING GIBERSON, opponent-appealed.
The facts appear related in the decision of the Court. 
Messrs. CD Johnston and AP Deen in representation of the appellant. 
D. Francisco EF Remotique on behalf of the appellee.
PABLO, J .:
Lela G. Dalton presented on February 10, 1949, an application in Ceb's
First Instance Court for the legalization of a document that, according
to her, is William R. Giberson's olograph testament, granted on April
29, 1920 in San Francisco, California; that Giberson was a citizen of
the state of Illinois, United States, and a resident of Cebu; and who
died on August 6, 1943 in the concentration camp of the University of
Sto, Tomas, Manila, Philippines.
Spring Giberson, legitimate son of William R. Giberson, filed an
opposition claiming that the will is apocryphal; that it does not
represent the true will of the deceased Giberson: and that it has not
been granted in accordance with the law.
On July 1, 1949, the opponent filed a motion requesting the dismissal
of the request, arguing that, before a will granted in a foreign country
can be legalized in the Philippine Islands, it must be demonstrated that
said will had previously been legalized in that country. , in accordance
with article 1 of Rule 78; that the request does not allege that the will
had already been legalized in California.
The applicant opposed the motion for dismissal. On June 20, 1950, the
Judge dismissed the petition, declaring: "... under our existing rules
only those wills that have been declared and allowed in the United
States, or any state or territory thereof, or any foreign country,
according to to the laws of that state, territory, or country, may be
allowed, filed or recorded in the proper court of first instance in the
Philippines. Against this order the applicant appeals.
The opponent, in support of his theory, maintains that Article 635 of
the Code of Civil Procedure has been repealed by Rule 78, by virtue of
section 13, Article VIII of the Constitution. Said article 635 of the
Code of Civil Procedure reads as follows:
A will granted outside the Philippine Islands, which may be
authenticated and legalized in accordance with the laws of the
state or country in which it was granted, may be authenticated,
legalized and registered in the Philippine Islands, and shall
have the same effectiveness as that granted in accordance with
the laws of these Islands.
This article has been applied in the case of Babcock
Templeton v. Rider Babcock, 52 Jur. Fil., 134, in which it was
declared that the testament granted in California and that could be
legalized in that state, can be legalized in the Philippines. In the case of
Varela v. Varela Calderon, 57 Jur. Fil., 291, the testament granted in
Paris, France, was legalized by the late Dr. Francisco Varela Calderon
because it was a testament that could be legalized in accordance with
the laws of France.
A person can dispose of his property for after his death by will. The
granting of a will is a legal act that can be performed in the Philippines
or abroad; if it is granted in a foreign country, it must be done in
accordance with the laws of that country, which is a universally
adopted rule.
The foreigner may dispose after his death of his property in the
Philippines by testament and is not obliged to grant it in the
Philippines; You can do it in your own country or in another, but in
accordance with the laws of the country in which it is granted. Article
635 of the Code of Civil Procedure, respecting the freedom of the
testator to grant his will in any place, provides that the will that can be
legalized in a foreign country in accordance with the laws of that
country can also be legalized in the Philippines. This provision is
substantive, it creates the rights of the beneficiaries of the will: they
are guaranteed to be able to legalize in the Philippines the testaments
granted outside the Islands if they can be legalized in the country in
which they were granted, giving them cause of action to judicially
request the fulfillment of the last will of the testator, whatever the
place of its granting. Without this provision, the faculty of testing
would be truncated.
By amending this Court the Code of Civil Procedure, only enmendo
the procedural part, but not the substantive part. "The substantive law
can not be amended by rules of procedure." (Reyes contra Viuda de
Luz, * 16 Lawyer Journal, 623.) Therefore, Article 635 of the Code of
Civil Procedure remains subsistent as a substantive right.
And article 637 reads as follows: "The wills authenticated and
legalized in the United States, or in any state or territory of the same,
or in a state or paisextranjero, in accordance with the laws of that state,
territory or country, may be legalized, registered and filed in the Court
of First Instance of the province in which the testator has movable
property, or immovable property affected by said testaments. " This
article is in conflict with article 635; in reality, it is nothing more than
its corollary. If a will granted in a foreign country that can be legalized
according to the laws of that country can also be legalized in the
Philippine Islands, a fortiori the wills already legalized in foreign
countries according to the laws of those countries, can also be
legalized in the Philippines.
Article 1 of Rule 78 is nothing more than a transplantation of Article
637 of the Code of Civil Procedure. We reproduce the two provisions:
RULE 78, - SECTION 1. Wills proved outside Philippines may
be allowed here . - Wills proved and allowed in a foreign
country, according to the laws of such country, may be
allowed, filed, and recorded by the Court of First Instance in
the Philippines.
SEC. 637. Wills proved outside islands may be allowed here . -
Wills proved and allowed in the United States, or any State or
Territory thereof, or in a foreign state or country, according to
the laws of such State, Territory, or country, may be allowed,
filed, and recorded in the Court of First Instance of the
province in which the testator has real or personal estate in
which such will operate .
The words underlined in the second provision are those that do not
appear in the first.
Article 1 of Rule 78 does not prevent a testament granted in a foreign
country from being legalized in the Philippines, if it can be legalized in
accordance with the laws of that country, nor does it require that it be
previously legalized in that country. It is untenable, therefore, the
theory of the opponent.
The appealed order is revoked with costs against the appellee.
G.R. No. L-20234      December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,  en la sum de P500.00 para responder de cualesquiera
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE
COURT OF APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of
Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the
Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering
the dismissal of an action for partition.
The factual background appears in the following portion of the
decision of the Court of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la
Serna and Gervasia Rebaca, executed a joint last will and
testament in the local dialect whereby they willed that "our two
parcels of land acquired during our marriage together with all
improvements 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. Bernabe dela Serna died on August 30, 1939, and the
aforesaid will was submitted to probate by said Gervasia and
Manuela before the Court of First Instance of Cebu which, after
due publication as required by law and there being no
opposition, heard the evidence, and, by Order of October 31,
1939; in Special Proceedings No. 499, "declara legalizado el
documento Exhibit A como el testamento y ultima voluntad del
finado Bernabe de la Serna con derecho por parte du su viuda
superstite Gervasia Rebaca y otra testadora al propio tiempo
segun el Exhibit A de gozar de los frutos de los terranos
descritos en dicho documents; y habido consideracion de la
cuantia de dichos bienes, se decreta la distribucion sumaria de
los mismos en favor de la logataria universal Manuela Rebaca
de Potot previa prestacion por parte de la misma de una fianza
reclamaciones que se presentare contra los bienes del finado
Bernabe de la Serna de los años desde esta fecha" (Act Esp.
499, Testamentaria Finado Bernabe de la Serna) Upon the
death of Gervasia Rebaca on October 14, 1952, another petition
for 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. Further, the Court of
Appeals declared that:
... . 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, as was done in the case of Macrohon
vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave
effect to the provisions of the joint will therein mentioned,
saying, "assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband,
Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate,
entered in 1939 by the Court of First Instance of Cebu (when the
testator, Bernabe de la Cerna, died), has conclusive effect as to his last
will and testament despite the fact that even then the Civil Code
already decreed the invalidity of joint wills, whether in favor of the
joint testators, reciprocally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the probate court was an
error of law, that should have been corrected by appeal, but which did
not affect the jurisdiction of the probate court, nor the conclusive
effect of its final decision, however erroneous. A final judgment
rendered on a petition for the probate of a will is binding upon the
whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of
Johnson, 39 Phil. 156); and public policy and sound practice demand
that at the risk of occasional errors judgment of courts should become
final at some definite date fixed by law. Interest rei publicae ut finis
set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in
2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are
concluded by the 1939 decree admitting his will to probate. The
contention that being void the will cannot be validated, overlooks that
the ultimate decision on Whether an act is valid or void rests with the
courts, and here they have spoken with finality when the will was
probated in 1939. On this court, the dismissal of their action for
partition was correct.
But the Court of Appeals should have taken into account also, to avoid
future misunderstanding, that the probate decree in 1989 could only
affect the share of the deceased husband, Bernabe de la Cerna. It could
not include the disposition of the share of the wife, Gervasia Rebaca,
who was then still alive, and over whose interest in the conjugal
properties the probate court acquired no jurisdiction, precisely because
her estate could not then be in issue. Be it remembered that prior to the
new Civil Code, a will could not be probated during the testator's
lifetime.
It follows that the validity of the joint will, in so far as the estate of the
wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate will of
each testator. Thus regarded, the holding of the court of First Instance
of Cebu that the joint will is one prohibited by law was correct as to
the participation of the deceased Gervasia Rebaca in the properties in
question, for the reasons extensively discussed in our decision
in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding
in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon
her death to her heirs intestate, and not exclusively to the testamentary
heir, unless some other valid will in her favor is shown to exist, or
unless she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in
common usage could not make them valid when our Civil Codes
consistently invalidated them, because laws are only repealed by other
subsequent laws, and no usage to the contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the
Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the
Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.
G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E.
CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of
the deceased, Executor and Heir-appellees, vs. HELEN
CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:chanrobles virtual law library
This is an appeal from a decision of the Court of First Instance of
Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special Proceeding No.
622 of said court, dated September 14, 1949, approving among things
the final accounts of the executor, directing the executor to reimburse
Maria Lucy Christensen the amount of P3,600 paid by her to Helen
Christensen Garcia as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the property to be enjoyed during
her lifetime, and in case of death without issue, one-half of said
residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator Edward E.
Christensen. The will was executed in Manila on March 5, 1951 and
contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY
CHRISTENSEN (now Mrs. Bernard Daney), who was born in the
Philippines about twenty-eight years ago, and who is now residing at
No. 665 Rodger Young Village, Los Angeles, California,
U.S.A.chanroblesvirtualawlibrarychanrobles virtual law library
4. I further declare that I now have no living ascendants, and no
descendants except my above named daughter, MARIA LUCY
CHRISTENSEN DANEY.
xxx xxx x x xchanrobles virtual law library
7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN,
now married to Eduardo Garcia, about eighteen years of age and who,
notwithstanding the fact that she was baptized Christensen, is not in
any way related to me, nor has she been at any time adopted by me,
and who, from all information I have now resides in Egpit, Digos,
Davao, Philippines, the sum of THREE THOUSAND SIX
HUNDRED PESOS (P3,600.00), Philippine Currency the same to be
deposited in trust for the said Maria Helen Christensen with the Davao
Branch of the Philippine National Bank, and paid to her at the rate of
One Hundred Pesos (P100.00), Philippine Currency per month until
the principal thereof as well as any interest which may have accrued
thereon, is exhausted..
xxx xxx x x xchanrobles virtual law library
12. I hereby give, devise and bequeath, unto my well-beloved
daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs.
Bernard Daney), now residing as aforesaid at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or
mixed, of whatsoever kind or character, and wheresoever situated, of
which I may be possessed at my death and which may have come to
me from any source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor
in his final account and project of partition ratified the payment of only
P3,600 to Helen Christensen Garcia and proposed that the residue of
the estate be transferred to his daughter, Maria Lucy
Christensen.chanroblesvirtualawlibrarychanrobles virtual law library
Opposition to the approval of the project of partition was filed by
Helen Christensen Garcia, insofar as it deprives her (Helen) of her
legitime as an acknowledged natural child, she having been declared
by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the
deceased Edward E. Christensen. The legal grounds of opposition are
(a) that the distribution should be governed by the laws of the
Philippines, and (b) that said order of distribution is contrary thereto
insofar as it denies to Helen Christensen, one of two acknowledged
natural children, one-half of the estate in full ownership. In
amplification of the above grounds it was alleged that the law that
should govern the estate of the deceased Christensen should not be the
internal law of California alone, but the entire law thereof because
several foreign elements are involved, that the forum is the Philippines
and even if the case were decided in California, Section 946 of the
California Civil Code, which requires that the domicile of the decedent
should apply, should be applicable. It was also alleged that Maria
Helen Christensen having been declared an acknowledged natural
child of the decedent, she is deemed for all purposes legitimate from
the time of her birth.chanroblesvirtualawlibrarychanrobles virtual law
library
The court below ruled that as Edward E. Christensen was a citizen of
the United States and of the State of California at the time of his death,
the successional rights and intrinsic validity of the provisions in his
will are to be governed by the law of California, in accordance with
which a testator has the right to dispose of his property in the way he
desires, because the right of absolute dominion over his property is
sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877,
176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in
page 179, Record on Appeal). Oppositor Maria Helen Christensen,
through counsel, filed various motions for reconsideration, but these
were denied. Hence, this appeal.chanroblesvirtualawlibrarychanrobles
virtual law library
The most important assignments of error are as follows:
Ichanrobles virtual law library
THE LOWER COURT ERRED IN IGNORING THE DECISION OF
THE HONORABLE SUPREME COURT THAT HELEN IS THE
ACKNOWLEDGED NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER
OF HER JUST SHARE IN THE INHERITANCE.
IIchanrobles virtual law library
THE LOWER COURT ERRED IN ENTIRELY IGNORING
AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF
SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES
CALLING FOR THE APPLICATION OF INTERNAL LAW.
IIIchanrobles virtual law library
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE
THAT UNDER INTERNATIONAL LAW, PARTICULARLY
UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY
OF THE TESTAMENTARY DISPOSITION OF THE
DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE
LAWS OF THE PHILIPPINES.
IVchanrobles virtual law library
THE LOWER COURT ERRED IN NOT DECLARING THAT THE
SCHEDULE OF DISTRIBUTION SUBMITTED BY THE
EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
Vchanrobles virtual law library
THE LOWER COURT ERRED IN NOT DECLARING THAT
UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN
GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN
FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the
United States and of the State of California at the time of his death.
But there is also no question that at the time of his death he was
domiciled in the Philippines, as witness the following facts admitted
by the executor himself in appellee's brief:
In the proceedings for admission of the will to probate, the facts of
record show that the deceased Edward E. Christensen was born on
November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival
in the Philippines, as an appointed school teacher, was on July 1, 1901,
on board the U.S. Army Transport "Sheridan" with Port of
Embarkation as the City of San Francisco, in the State of California,
U.S.A. He stayed in the Philippines until
1904.chanroblesvirtualawlibrarychanrobles virtual law library
In December, 1904, Mr. Christensen returned to the United States and
stayed there for the following nine years until 1913, during which time
he resided in, and was teaching school in Sacramento,
California.chanroblesvirtualawlibrarychanrobles virtual law library
Mr. Christensen's next arrival in the Philippines was in July of the year
1913. However, in 1928, he again departed the Philippines for the
United States and came back here the following year, 1929. Some nine
years later, in 1938, he again returned to his own country, and came
back to the Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation
of facts be admitted and approved by this Honorable Court, without
prejudice to the parties adducing other evidence to prove their case not
covered by this stipulation of
facts.chanroblesvirtualawlibrarychanrobles virtual law library
Being an American citizen, Mr. Christensen was interned by the
Japanese Military Forces in the Philippines during World War II. Upon
liberation, in April 1945, he left for the United States but returned to
the Philippines in December, 1945. Appellees Collective Exhibits "6",
CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney";
Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21,
1953.)chanrobles virtual law library
In April, 1951, Edward E. Christensen returned once more to
California shortly after the making of his last will and testament (now
in question herein) which he executed at his lawyers' offices in Manila
on March 5, 1951. He died at the St. Luke's Hospital in the City of
Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the
Philippines, we are persuaded by the fact that he was born in New
York, migrated to California and resided there for nine years, and since
he came to the Philippines in 1913 he returned to California very
rarely and only for short visits (perhaps to relatives), and considering
that he appears never to have owned or acquired a home or properties
in that state, which would indicate that he would ultimately abandon
the Philippines and make home in the State of California.
Sec. 16. Residence is a term used with many shades of meaning from
mere temporary presence to the most permanent abode. Generally,
however, it is used to denote something more than mere physical
presence. (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he
acquired in California when he resided in Sacramento, California from
1904 to 1913, was never lost by his stay in the Philippines, for the
latter was a territory of the United States (not a state) until 1946 and
the deceased appears to have considered himself as a citizen of
California by the fact that when he executed his will in 1951 he
declared that he was a citizen of that State; so that he appears never to
have intended to abandon his California citizenship by acquiring
another. This conclusion is in accordance with the following principle
expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to mean the
same thing, a place of permanent abode. But domicile, as has been
shown, has acquired a technical meaning. Thus one may be domiciled
in a place where he has never been. And he may reside in a place
where he has no domicile. The man with two homes, between which
he divides his time, certainly resides in each one, while living in it. But
if he went on business which would require his presence for several
weeks or months, he might properly be said to have sufficient
connection with the place to be called a resident. It is clear, however,
that, if he treated his settlement as continuing only for the particular
business in hand, not giving up his former "home," he could not be a
domiciled New Yorker. Acquisition of a domicile of choice requires
the exercise of intention as well as physical presence. "Residence
simply requires bodily presence of an inhabitant in a given place,
while domicile requires bodily presence in that place and also an
intention to make it one's domicile." Residence, however, is a term
used with many shades of meaning, from the merest temporary
presence to the most permanent abode, and it is not safe to insist that
any one use et the only proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is
defined in Article 16 of the Civil Code of the Philippines, which is as
follows:
ART. 16. Real property as well as personal property is subject to the
law of the country where it is
situated.chanroblesvirtualawlibrarychanrobles virtual law library
However, intestate and testamentary successions, both with respect to
the order of succession and to the amount of successional rights and to
the intrinsic validity of testamentary provisions, shall be regulated by
the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the
country where said property may be found.
The application of this article in the case at bar requires the
determination of the meaning of the term "national law" is used
therein.chanroblesvirtualawlibrarychanrobles virtual law library
There is no single American law governing the validity of
testamentary provisions in the United States, each state of the Union
having its own private law applicable to its citizens only and in force
only within the state. The "national law" indicated in Article 16 of the
Civil Code above quoted can not, therefore, possibly mean or apply to
any general American law. So it can refer to no other than the private
law of the State of California.chanroblesvirtualawlibrarychanrobles
virtual law library
The next question is: What is the law in California governing the
disposition of personal property? The decision of the court below,
sustains the contention of the executor-appellee that under the
California Probate Code, a testator may dispose of his property by will
in the form and manner he desires, citing the case of Estate of
McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes
the provisions of Article 946 of the Civil Code of California, which is
as follows:
If there is no law to the contrary, in the place where personal property
is situated, it is deemed to follow the person of its owner, and is
governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and
is not denied. We have checked it in the California Civil Code and it is
there. Appellee, on the other hand, relies on the case cited in the
decision and testified to by a witness. (Only the case of Kaufman is
correctly cited.) It is argued on executor's behalf that as the deceased
Christensen was a citizen of the State of California, the internal law
thereof, which is that given in the abovecited case, should govern the
determination of the validity of the testamentary provisions of
Christensen's will, such law being in force in the State of California of
which Christensen was a citizen. Appellant, on the other hand, insists
that Article 946 should be applicable, and in accordance therewith and
following the doctrine of the renvoi, the question of the validity of the
testamentary provision in question should be referred back to the law
of the decedent's domicile, which is the
Philippines.chanroblesvirtualawlibrarychanrobles virtual law library
The theory of doctrine of renvoi has been defined by various authors,
thus:
The problem has been stated in this way: "When the Conflict of Laws
rule of the forum refers a jural matter to a foreign law for decision, is
the reference to the purely internal rules of law of the foreign system;
i.e., to the totality of the foreign law minus its Conflict of Laws
rules?"chanrobles virtual law library
On logic, the solution is not an easy one. The Michigan court chose to
accept the renvoi, that is, applied the Conflict of Laws rule of Illinois
which referred the matter back to Michigan law. But once having
determined the the Conflict of Laws principle is the rule looked to, it is
difficult to see why the reference back should not have been to
Michigan Conflict of Laws. This would have resulted in the "endless
chain of references" which has so often been criticized be legal writers.
The opponents of the renvoi would have looked merely to the internal
law of Illinois, thus rejecting the renvoi or the reference back. Yet
there seems no compelling logical reason why the original reference
should be the internal law rather than to the Conflict of Laws rule. It is
true that such a solution avoids going on a merry-go-round, but those
who have accepted the renvoi theory avoid this inextricabilis circulas
by getting off at the second reference and at that point applying
internal law. Perhaps the opponents of the renvoi are a bit more
consistent for they look always to internal law as the rule of
reference.chanroblesvirtualawlibrarychanrobles virtual law library
Strangely enough, both the advocates for and the objectors to the
renvoi plead that greater uniformity will result from adoption of their
respective views. And still more strange is the fact that the only way to
achieve uniformity in this choice-of-law problem is if in the dispute
the two states whose laws form the legal basis of the litigation disagree
as to whether the renvoi should be accepted. If both reject, or both
accept the doctrine, the result of the litigation will vary with the choice
of the forum. In the case stated above, had the Michigan court rejected
the renvoi, judgment would have been against the woman; if the suit
had been brought in the Illinois courts, and they too rejected the
renvoi, judgment would be for the woman. The same result would
happen, though the courts would switch with respect to which would
hold liability, if both courts accepted the
renvoi.chanroblesvirtualawlibrarychanrobles virtual law library
The Restatement accepts the renvoi theory in two instances: where the
title to land is in question, and where the validity of a decree of divorce
is challenged. In these cases the Conflict of Laws rule of the situs of
the land, or the domicile of the parties in the divorce case, is applied
by the forum, but any further reference goes only to the internal law.
Thus, a person's title to land, recognized by the situs, will be
recognized by every court; and every divorce, valid by the domicile of
the parties, will be valid everywhere. (Goodrich, Conflict of Laws,
Sec. 7, pp. 13-14.)chanrobles virtual law library
X, a citizen of Massachusetts, dies intestate, domiciled in France,
leaving movable property in Massachusetts, England, and France. The
question arises as to how this property is to be distributed among X's
next of kin.chanroblesvirtualawlibrarychanrobles virtual law library
Assume (1) that this question arises in a Massachusetts court. There
the rule of the conflict of laws as to intestate succession to movables
calls for an application of the law of the deceased's last domicile. Since
by hypothesis X's last domicile was France, the natural thing for the
Massachusetts court to do would be to turn to French statute of
distributions, or whatever corresponds thereto in French law, and
decree a distribution accordingly. An examination of French law,
however, would show that if a French court were called upon to
determine how this property should be distributed, it would refer the
distribution to the national law of the deceased, thus applying the
Massachusetts statute of distributions. So on the surface of things the
Massachusetts court has open to it alternative course of action: (a)
either to apply the French law is to intestate succession, or (b) to
resolve itself into a French court and apply the Massachusetts statute
of distributions, on the assumption that this is what a French court
would do. If it accepts the so-called renvoi doctrine, it will follow the
latter course, thus applying its own
law.chanroblesvirtualawlibrarychanrobles virtual law library
This is one type of renvoi. A jural matter is presented which the
conflict-of-laws rule of the forum refers to a foreign law, the conflict-
of-laws rule of which, in turn, refers the matter back again to the law
of the forum. This is renvoi in the narrower sense. The German term
for this judicial process is 'Ruckverweisung.'" (Harvard Law Review,
Vol. 31, pp. 523-571.)chanrobles virtual law library
After a decision has been arrived at that a foreign law is to be resorted
to as governing a particular case, the further question may arise: Are
the rules as to the conflict of laws contained in such foreign law also to
be resorted to? This is a question which, while it has been considered
by the courts in but a few instances, has been the subject of frequent
discussion by textwriters and essayists; and the doctrine involved has
been descriptively designated by them as the "Renvoyer" to send back,
or the "Ruchversweisung", or the "Weiterverweisung", since an
affirmative answer to the question postulated and the operation of the
adoption of the foreign law in toto would in many cases result in
returning the main controversy to be decided according to the law of
the forum. ... (16 C.J.S. 872.)chanrobles virtual law library
Another theory, known as the "doctrine of renvoi", has been advanced.
The theory of the doctrine of renvoi is that the court of the forum, in
determining the question before it, must take into account the whole
law of the other jurisdiction, but also its rules as to conflict of laws,
and then apply the law to the actual question which the rules of the
other jurisdiction prescribe. This may be the law of the forum. The
doctrine of the renvoi has generally been repudiated by the American
authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the
reasons for its application in a country explained by Prof. Lorenzen in
an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531.
The pertinent parts of the article are quoted herein below:
The recognition of the renvoi theory implies that the rules of the
conflict of laws are to be understood as incorporating not only the
ordinary or internal law of the foreign state or country, but its rules of
the conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.
xxx xxx x x xchanrobles virtual law library
Von Bar presented his views at the meeting of the Institute of
International Law, at Neuchatel, in 1900, in the form of the following
theses:chanrobles virtual law library
(1) Every court shall observe the law of its country as regards the
application of foreign laws.chanroblesvirtualawlibrarychanrobles
virtual law library
(2) Provided that no express provision to the contrary exists, the court
shall respect:
(a) The provisions of a foreign law which disclaims the right to bind its
nationals abroad as regards their personal statute, and desires that said
personal statute shall be determined by the law of the domicile, or even
by the law of the place where the act in question
occurred.chanroblesvirtualawlibrarychanrobles virtual law library
(b) The decision of two or more foreign systems of law, provided it be
certain that one of them is necessarily competent, which agree in
attributing the determination of a question to the same system of law.
xxx xxx x x xchanrobles virtual law library
If, for example, the English law directs its judge to distribute the
personal estate of an Englishman who has died domiciled in Belgium
in accordance with the law of his domicile, he must first inquire
whether the law of Belgium would distribute personal property upon
death in accordance with the law of domicile, and if he finds that the
Belgian law would make the distribution in accordance with the law of
nationality - that is the English law - he must accept this reference
back to his own law.
We note that Article 946 of the California Civil Code is its conflict of
laws rule, while the rule applied in In re Kaufman, Supra, its internal
law. If the law on succession and the conflict of laws rules of
California are to be enforced jointly, each in its own intended and
appropriate sphere, the principle cited In re Kaufman should apply to
citizens living in the State, but Article 946 should apply to such of its
citizens as are not domiciled in California but in other jurisdictions.
The rule laid down of resorting to the law of the domicile in the
determination of matters with foreign element involved is in accord
with the general principle of American law that the domiciliary law
should govern in most matters or rights which follow the person of the
owner.
When a man dies leaving personal property in one or more states, and
leaves a will directing the manner of distribution of the property, the
law of the state where he was domiciled at the time of his death will be
looked to in deciding legal questions about the will, almost as
completely as the law of situs is consulted in questions about the
devise of land. It is logical that, since the domiciliary rules control
devolution of the personal estate in case of intestate succession, the
same rules should determine the validity of an attempted testamentary
dispostion of the property. Here, also, it is not that the domiciliary has
effect beyond the borders of the domiciliary state. The rules of the
domicile are recognized as controlling by the Conflict of Laws rules at
the situs property, and the reason for the recognition as in the case of
intestate succession, is the general convenience of the doctrine. The
New York court has said on the point: 'The general principle that a
dispostiton of a personal property, valid at the domicile of the owner,
is valid anywhere, is one of the universal application. It had its origin
in that international comity which was one of the first fruits of
civilization, and it this age, when business intercourse and the process
of accumulating property take but little notice of boundary lines, the
practical wisdom and justice of the rule is more apparent than ever.
(Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the
Philippines pointed out as the national law is the internal law of
California. But as above explained the laws of California have
prescribed two sets of laws for its citizens, one for residents therein
and another for those domiciled in other jurisdictions. Reason demands
that We should enforce the California internal law prescribed for its
citizens residing therein, and enforce the conflict of laws rules for the
citizens domiciled abroad. If we must enforce the law of California as
in comity we are bound to go, as so declared in Article 16 of our Civil
Code, then we must enforce the law of California in accordance with
the express mandate thereof and as above explained, i.e., apply the
internal law for residents therein, and its conflict-of-laws rule for those
domiciled abroad.chanroblesvirtualawlibrarychanrobles virtual law
library
It is argued on appellees' behalf that the clause "if there is no law to the
contrary in the place where the property is situated" in Sec. 946 of the
California Civil Code refers to Article 16 of the Civil Code of the
Philippines and that the law to the contrary in the Philippines is the
provision in said Article 16 that the national law of the deceased
should govern. This contention can not be sustained. As explained in
the various authorities cited above the national law mentioned in
Article 16 of our Civil Code is the law on conflict of laws in the
California Civil Code, i.e., Article 946, which authorizes the reference
or return of the question to the law of the testator's domicile. The
conflict of laws rule in California, Article 946, Civil Code, precisely
refers back the case, when a decedent is not domiciled in California, to
the law of his domicile, the Philippines in the case at bar. The court of
the domicile can not and should not refer the case back to California;
such action would leave the issue incapable of determination because
the case will then be like a football, tossed back and forth between the
two states, between the country of which the decedent was a citizen
and the country of his domicile. The Philippine court must apply its
own law as directed in the conflict of laws rule of the state of the
decedent, if the question has to be decided, especially as the
application of the internal law of California provides no legitime for
children while the Philippine law, Arts. 887(4) and 894, Civil Code of
the Philippines, makes natural children legally acknowledged forced
heirs of the parent recognizing
them.chanroblesvirtualawlibrarychanrobles virtual law library
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs.
Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock
Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs.
Government, 59 Phil. 293.) cited by appellees to support the decision
can not possibly apply in the case at bar, for two important reasons,
i.e., the subject in each case does not appear to be a citizen of a state in
the United States but with domicile in the Philippines, and it does not
appear in each case that there exists in the state of which the subject is
a citizen, a law similar to or identical with Art. 946 of the California
Civil Code.chanroblesvirtualawlibrarychanrobles virtual law library
We therefore find that as the domicile of the deceased Christensen, a
citizen of California, is the Philippines, the validity of the provisions of
his will depriving his acknowledged natural child, the appellant,
should be governed by the Philippine Law, the domicile, pursuant to
Art. 946 of the Civil Code of California, not by the internal law of
California..chanroblesvirtualawlibrarychanrobles virtual law library
WHEREFORE, the decision appealed from is hereby reversed and the
case returned to the lower court with instructions that the partition be
made as the Philippine law on succession provides. Judgment reversed,
with costs against appellees.
G.R. No. L-23678             June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased. 
PEOPLE'S BANK and TRUST COMPANY, executor. 
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants, 
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A.
Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an
order of the Court of First Instance of Manila dated April 30, 1964,
approving the project of partition filed by the executor in Civil Case
No. 37089 therein.1äwphï1.ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and
of the United States." By his first wife, Mary E. Mallen, whom he
divorced, he had five legitimate children: Edward A. Bellis, George
Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander
Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy,
who survived him, he had three legitimate children: Edwin G. Bellis,
Walter S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines,
in which he directed that after all taxes, obligations, and expenses of
administration are paid for, his distributable estate should be divided,
in trust, in the following order and manner: (a) $240,000.00 to his first
wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis,
or P40,000.00 each and (c) after the foregoing two items have been
satisfied, the remainder shall go to his seven surviving children by his
first and second wives, namely: Edward A. Bellis, Henry A. Bellis,
Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S.
Bellis, and Dorothy E. Bellis, in equal shares.1äwphï1.ñët
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of
San Antonio, Texas, U.S.A. His will was admitted to probate in the
Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all
the bequests therein including the amount of $240,000.00 in the form
of shares of stock to Mary E. Mallen and to the three (3) illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma
Bellis, various amounts totalling P40,000.00 each in satisfaction of
their respective legacies, or a total of P120,000.00, which it released
from time to time according as the lower court approved and allowed
the various motions or petitions filed by the latter three requesting
partial advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the
executor submitted and filed its "Executor's Final Account, Report of
Administration and Project of Partition" wherein it reported, inter alia,
the satisfaction of the legacy of Mary E. Mallen by the delivery to her
of shares of stock amounting to $240,000.00, and the legacies of Amos
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the
amount of P40,000.00 each or a total of P120,000.00. In the project of
partition, the executor — pursuant to the "Twelfth" clause of the
testator's Last Will and Testament — divided the residuary estate into
seven equal portions for the benefit of the testator's seven legitimate
children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis
filed their respective oppositions to the project of partition on the
ground that they were deprived of their legitimes as illegitimate
children and, therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof
of service of which is evidenced by the registry receipt submitted on
April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent
pleadings, the lower court, on April 30, 1964, issued an order
overruling the oppositions and approving the executor's final account,
report and administration and project of partition. Relying upon Art.
16 of the Civil Code, it applied the national law of the decedent, which
in this case is Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been denied by the
lower court on June 11, 1964, oppositors-appellants appealed to this
Court to raise the issue of which law must apply — Texas law or
Philippine law.
In this regard, the parties do not submit the case on, nor even discuss,
the doctrine of renvoi, applied by this Court in Aznar v. Christensen
Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent
where the decedent is a national of one country, and a domicile of
another. In the present case, it is not disputed that the decedent was
both a national of Texas and a domicile thereof at the time of his
death.2 So that even assuming Texas has a conflict of law rule
providing that the domiciliary system (law of the domicile) should
govern, the same would not result in a reference back (renvoi) to
Philippine law, but would still refer to Texas law. Nonetheless, if
Texas has a conflicts rule adopting the situs theory (lex rei sitae)
calling for the application of the law of the place where the properties
are situated, renvoi would arise, since the properties here involved are
found in the Philippines. In the absence, however, of proof as to the
conflict of law rule of Texas, it should not be presumed different from
ours.3 Appellants' position is therefore not rested on the doctrine of
renvoi. As stated, they never invoked nor even mentioned it in their
arguments. Rather, they argue that their case falls under the
circumstances mentioned in the third paragraph of Article 17 in
relation to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable
the national law of the decedent, in intestate or testamentary
successions, with regard to four items: (a) the order of succession; (b)
the amount of successional rights; (e) the intrinsic validity of the
provisions of the will; and (d) the capacity to succeed. They provide
that —
ART. 16. Real property as well as personal property is subject
to the law of the country where it is situated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may he the
nature of the property and regardless of the country wherein
said property may be found.
ART. 1039. Capacity to succeed is governed by the law of the
nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of the
Civil Code, stating that —
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy
and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-
quoted. This is not correct. Precisely, Congress deleted the phrase,
"notwithstanding the provisions of this and the next preceding article"
when they incorporated Art. 11 of the old Civil Code as Art. 17 of the
new Civil Code, while reproducing without substantial change the
second paragraph of Art. 10 of the old Civil Code as Art. 16 in the
new. It must have been their purpose to make the second paragraph of
Art. 16 a specific provision in itself which must be applied in testate
and intestate succession. As further indication of this legislative intent,
Congress added a new provision, under Art. 1039, which decrees that
capacity to succeed is to be governed by the national law of the
decedent.
It is therefore evident that whatever public policy or good customs
may be involved in our System of legitimes, Congress has not intended
to extend the same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount  of successional
rights, to the decedent's national law. Specific provisions must prevail
over general ones.
Appellants would also point out that the decedent executed two wills
— one to govern his Texas estate and the other his Philippine estate —
arguing from this that he intended Philippine law to govern his
Philippine estate. Assuming that such was the decedent's intention in
executing a separate Philippine will, it would not alter the law, for as
this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in
a foreigner's will to the effect that his properties shall be distributed in
accordance with Philippine law and not with his national law, is illegal
and void, for his national law cannot be ignored in regard to those
matters that Article 10 — now Article 16 — of the Civil Code states
said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of
the State of Texas, U.S.A., and that under the laws of Texas, there are
no forced heirs or legitimes. Accordingly, since the intrinsic validity of
the provision of the will and the amount of successional rights are to
be determined under Texas law, the Philippine law on legitimes cannot
be applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto,
with costs against appellants. So ordered.
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner, 
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of
Branch XXXVIII, Court of First Instance of Manila and NENITA
CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to annul the order of the
respondent judge of the Court of First Instance of Manila, Branch XXXVIII,
which admitted to and allowed the probate of the last will and testament of
Adoracion C. Campos, after an ex-parte presentation of evidence by herein
private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner
Hermogenes Campos and her sisters, private respondent Nenita C. Paguia,
Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As
Hermogenes Campos was the only compulsory heir, he executed an Affidavit of
Adjudication under Rule 74, Section I of the Rules of Court whereby he
adjudicated unto himself the ownership of the entire estate of the deceased
Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for
the reprobate of a will of the deceased, Adoracion Campos, which was allegedly
executed in the United States and for her appointment as administratrix of the
estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the
time of her death and was a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January
31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate,
Manila; that during her lifetime, the testatrix made her last wig and testament on
July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating
Wilfredo Barzaga of New Jersey as executor; that after the testatrix death, her
last will and testament was presented, probated, allowed, and registered with the
Registry of Wins at the County of Philadelphia, U.S.A., that Clement L.
McLaughlin, the administrator who was appointed after Dr. Barzaga had
declined and waived his appointment as executor in favor of the former, is also a
resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for
the appointment of an administratrix to administer and eventually distribute the
properties of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by
herein petitioner alleging among other things, that he has every reason to believe
that the will in question is a forgery; that the intrinsic provisions of the will are
null and void; and that even if pertinent American laws on intrinsic provisions
are invoked, the same could not apply inasmuch as they would work injustice
and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco
Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or
Interests) stating that he "has been able to verify the veracity thereof (of the will)
and now confirms the same to be truly the probated will of his daughter
Adoracion." Hence, an  ex-partepresentation of evidence for the reprobate of the
questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established that
Adoracion C. Campos, in her lifetime, was a citizen of the
United States of America with a permanent residence at 4633
Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when
alive, Adoracion C. Campos executed a Last Will and
Testament in the county of Philadelphia, Pennsylvania, U.S.A.,
according to the laws thereat (Exhibits E-3 to E-3-b) that while
in temporary sojourn in the Philippines, Adoracion C. Campos
died in the City of Manila (Exhibit C) leaving property both in
the Philippines and in the United States of America; that the
Last Will and Testament of the late Adoracion C. Campos was
admitted and granted probate by the Orphan's Court Division of
the Court of Common Pleas, the probate court of the
Commonwealth of Pennsylvania, County of Philadelphia,
U.S.A., and letters of administration were issued in favor of
Clement J. McLaughlin all in accordance with the laws of the
said foreign country on procedure and allowance of wills
(Exhibits E to E-10); and that the petitioner is not suffering
from any disqualification which would render her unfit as
administratrix of the estate in the Philippines of the late
Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late
Adoracion C. Campos is hereby admitted to and allowed
probate in the Philippines, and Nenita Campos Paguia is hereby
appointed Administratrix of the estate of said decedent; let
Letters of Administration with the Will annexed issue in favor
of said Administratrix upon her filing of a bond in the amount
of P5,000.00 conditioned under the provisions of Section I,
Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming
the withdrawal of his opposition, acknowledging the same to be his voluntary act
and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that
the order allowing the will be set aside on the ground that the withdrawal of his
opposition to the same was secured through fraudulent means. According to him,
the "Motion to Dismiss Opposition" was inserted among the papers which he
signed in connection with two Deeds of Conditional Sales which he executed
with the Construction and Development Corporation of the Philippines (CDCP).
He also alleged that the lawyer who filed the withdrawal of the opposition was
not his counsel-of-record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He
made several motions for postponement until the hearing was set on May 29,
1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate
and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for lack
of jurisdiction. In this motion, the notice of hearing provided:
Please include this motion in your calendar for hearing on May
29, 1980 at 8:30 in the morning for submission for
reconsideration and resolution of the Honorable Court. Until
this Motion is resolved, may I also request for the future setting
of the case for hearing on the Oppositor's motion to set aside
previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When
the case was called for hearing on this date, the counsel for petitioner tried to
argue his motion to vacate instead of adducing evidence in support of the petition
for relief. Thus, the respondent judge issued an order dismissing the petition for
relief for failure to present evidence in support thereof. Petitioner filed a motion
for reconsideration but the same was denied. In the same order, respondent judge
also denied the motion to vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will,
which, incidentally has been questioned by the respondent, his children and
forced heirs as, on its face, patently null and void, and a fabrication, appointing
Polly Cayetano as the executrix of his last will and testament. Cayetano,
therefore, filed a motion to substitute herself as petitioner in the instant case
which was granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner
Hermogenes Campos merged upon his death with the rights of the respondent
and her sisters, only remaining children and forced heirs was denied on
September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted
without or in excess of his jurisdiction when:
1) He ruled the petitioner lost his standing in court deprived the
Right to Notice (sic) upon the filing of the Motion to Dismiss
opposition with waiver of rights or interests against the estate of
deceased Adoracion C. Campos, thus, paving the way for the
hearing ex-parte of the petition for the probate of decedent will.
2) He ruled that petitioner can waive, renounce or repudiate (not
made in a public or authenticated instrument), or by way of a
petition presented to the court but by way of a motion presented
prior to an order for the distribution of the estate-the law
especially providing that repudiation of an inheritance must be
presented, within 30 days after it has issued an order for the
distribution of the estate in accordance with the rules of Court.
3) He ruled that the right of a forced heir to his legitime can be
divested by a decree admitting a will to probate in which no
provision is made for the forced heir in complete disregard of
Law of Succession
4) He denied petitioner's petition for Relief on the ground that
no evidence was adduced to support the Petition for Relief
when no Notice nor hearing was set to afford petitioner to prove
the merit of his petition — a denial of the due process and a
grave abuse of discretion amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case, the fact that
the Testator at the time of death was a usual resident of
Dasmariñas, Cavite, consequently Cavite Court of First Instance
has exclusive jurisdiction over the case (De Borja vs. Tan, G.R.
No. L-7792, July 1955).
The first two issues raised by the petitioner are anchored on the allegation that
the respondent judge acted with grave abuse of discretion when he allowed the
withdrawal of the petitioner's opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No
proof was adduced to support petitioner's contention that the motion to withdraw
was secured through fraudulent means and that Atty. Franco Loyola was not his
counsel of record. The records show that after the firing of the contested motion,
the petitioner at a later date, filed a manifestation wherein he confirmed that the
Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the
time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa
had long withdrawn from the case and had been substituted by Atty. Franco
Loyola who in turn filed the motion. The present petitioner cannot, therefore,
maintain that the old man's attorney of record was Atty. Lagrosa at the time of
filing the motion. Since the withdrawal was in order, the respondent judge acted
correctly in hearing the probate of the will ex-parte, there being no other
opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a
general rule, the probate court's authority is limited only to the extrinsic validity
of the will, the due execution thereof, the testatrix's testamentary capacity and
the compliance with the requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court has declared that the will
has been duly authenticated. However, where practical considerations demand
that the intrinsic validity of the will be passed upon, even before it is probated,
the court should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA
478).
In the case at bar, the petitioner maintains that since the respondent judge
allowed the reprobate of Adoracion's will, Hermogenes C. Campos was divested
of his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus,
the respondent judge should have denied its reprobate outright, the private
respondents have sufficiently established that Adoracion was, at the time of her
death, an American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil
Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein
said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the
decedent.
the law which governs Adoracion Campo's will is the law of Pennsylvania,
U.S.A., which is the national law of the decedent. Although the parties admit that
the Pennsylvania law does not provide for legitimes and that all the estate may be
given away by the testatrix to a complete stranger, the petitioner argues that such
law should not apply because it would be contrary to the sound and established
public policy and would run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the
will, as provided for by Article 16(2) and 1039 of the Civil Code, the national
law of the decedent must apply. This was squarely applied in the case of Bellis v.
Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good
customs may be involved in our system of legitimes, Congress
has not intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was a
citizen of the State of Texas, U.S.A., and under the law of
Texas, there are no forced heirs or legitimes. Accordingly, since
the intrinsic validity of the provision of the will and the amount
of successional rights are to be determined under Texas law, the
Philippine Law on legitimes cannot be applied to the testacy of
Amos G. Bellis.
As regards the alleged absence of notice of hearing for the petition for relief, the
records wig bear the fact that what was repeatedly scheduled for hearing on
separate dates until June 19, 1980 was the petitioner's petition for relief and not
his motion to vacate the order of January 10, 1979. There is no reason why the
petitioner should have been led to believe otherwise. The court even admonished
the petitioner's failing to adduce evidence when his petition for relief was
repeatedly set for hearing. There was no denial of due process. The fact that he
requested "for the future setting of the case for hearing . . ." did not mean that at
the next hearing, the motion to vacate would be heard and given preference in
lieu of the petition for relief. Furthermore, such request should be embodied in a
motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction
utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is
provided that:
SECTION 1. Where estate of deceased persons settled. — If the
decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his will shall be proved, or
letters of administration granted, and his estate settled, in the
Court of First Instance in the province in which he resided at
the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he
had estate. The court first taking cognizance of the settlement of
the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a
court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested
in a suit or proceeding, except in an appeal from that court, in
the original case, or when the want of jurisdiction appears on
the record.
Therefore, the settlement of the estate of Adoracion Campos was correctly filed
with the Court of First Instance of Manila where she had an estate since it was
alleged and proven that Adoracion at the time of her death was a citizen and
permanent resident of Pennsylvania, United States of America and not a "usual
resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in the petition for
relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to
secure affirmative relief, against his opponent and after failing to obtain such
relief, repudiate or question that same jurisdiction. (See Saulog Transit, Inc. vs.
Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for
lack of merit.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant, 
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of
Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk
of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for having
admitted to probate a will, which on its face is void because it is written in
English, a language not known to the illiterate testatrix, and which is
probably a forged will because she and the attesting witnesses did not
appear before the notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in
the certiorari case in the Court of Appeals which reveal the following
tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine
Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150,
Spec. Proc. No. 7816). They were childless. They reared a boy named
Agapito who used the surname Suroza and who considered them as his
parents as shown in his 1945 marriage contract with Nenita de Vera (p.
15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing
that Agapito was 5 years old when Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a
pensioner of the Federal Government. That explains why on her death
she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical
technologist and went abroad. Agapito also became a soldier. He was
disabled and his wife Nenita was appointed as his guardian in 1953 when
he was declared an incompetent in Special Proceeding No. 1807 of the
Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R.
No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la
Cruz wanted also to be his guardian in another proceeding. Arsenia tried
to prove that Nenita was living separately from Agapito and that she
(Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-
63, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding
and confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo
of CA case). Agapito has been staying in a veteran's hospital in San
Francisco or Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and
Hermogena Talan begot a child named Marilyn Sy, who, when a few
days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of
Agapito) and who was later delivered to Marcelina Salvador Suroza who
brought her up as a supposed daughter of Agapito and as her
granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn
used the surname Suroza. She stayed with Marcelina but was not legally
adopted by Agapito. She married Oscar Medrano and is residing at 7666
J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a
resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973,
when she was 73 years old. That will which is in English was
thumbmarked by her. She was illiterate. Her letters in English to the
Veterans Administration were also thumbmarked by her (pp. 38-39, CA
Rollo). In that wig, Marcelina bequeathed all her estate to her supposed
granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in
Quezon City. At the time of her death, she was a resident of 7374 San
Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter lot
and house in that place. She acquired the lot in 1966 (p. 134, Record of
testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of
Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate
executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband),
filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition
for the probate of Marcelina's alleged will. The case was assigned to
Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy
clerk of court, Evangeline S. Yuipco, to hear the evidence. The transcripts
of the stenographic notes taken at the hearing before the deputy clerk of
court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as
administratrix. On the following day, April 1, Judge Honrado issued two
orders directing the Merchants Banking Corporation and the Bank of
America to allow Marina to withdraw the sum of P10,000 from the
savings accounts of Marcelina S. Suroza and Marilyn Suroza and
requiring Corazon Castro, the custodian of the passbooks, to deliver
them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April
11, 1975, instructing a deputy sheriff to eject the occupants of the
testatrix's house, among whom was Nenita V. Suroza, and to place
Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding
for the settlement of Marcelina's estate. She and the other occupants of
the decedent's house filed on April 18 in the said proceeding a motion to
set aside the order of April 11 ejecting them. They alleged that the
decedent's son Agapito was the sole heir of the deceased, that he has a
daughter named Lilia, that Nenita was Agapito's guardian and that
Marilyn was not Agapito's daughter nor the decedent's granddaughter
(pp. 52-68, Record of testate case). Later, they questioned the probate
court's jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that
persons, other than Marilyn, were claiming Marcelina's estate, he issued
on April 23 an order probating her supposed will wherein Marilyn was the
instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set
aside proceedings, admit opposition with counter-petition for
administration and preliminary injunction". Nenita in that motion reiterated
her allegation that Marilyn was a stranger to Marcelina, that the will was
not duly executed and attested, that it was procured by means of undue
influence employed by Marina and Marilyn and that the thumbmarks of
the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void
because of the preterition of Agapito and that Marina was not qualified to
act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the
housemaid of Marcelina, who swore that the alleged will was falsified (p.
109, Record).
Not content with her motion to set aside the ejectment order (filed on April
18) and her omnibus motion to set aside the proceedings (filed on April
24), Nenita filed the next day, April 25, an opposition to the probate of the
will and a counter-petition for letters of administration. In that opposition,
Nenita assailed the due execution of the will and stated the names and
addresses of Marcelina's intestate heirs, her nieces and nephews (pp.
113-121, Record). Nenita was not aware of the decree of probate dated
April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador
Teodocio, Marcelina's niece, who swore that Marcelina never executed a
win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings
admitted that Marilyn was not Marcelina's granddaughter but was the
daughter of Agapito and Arsenia de la Cruz and that Agapito was not
Marcelina's sonbut merely an anak-anakan who was not legally adopted
(p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-
petition for the issuance of letters of administration because of the non-
appearance of her counsel at the hearing. She moved for the
reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending
incidents, Nenita V. Suroza reiterated her contention that the alleged will
is void because Marcelina did not appear before the notary and because
it is written in English which is not known to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various
incidents "raised" by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the wig,
Nenita "filed a case to annul" the probate proceedings (p. 332, Record).
That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398,
Record), was also assigned to Judge Honrado. He dismissed it in his
order of February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that
the executrix had delivered the estate to Marilyn, and that the estate tax
had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978,
filed in this Court, Nenita charged Judge Honrado with having probated
the fraudulent will of Marcelina. The complainant reiterated her contention
that the testatrix was illiterate as shown by the fact that she affixed her
thumbmark to the will and that she did not know English, the language in
which the win was written. (In the decree of probate Judge Honrado did
not make any finding that the will was written in a language known to the
testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that
the testatrix had a son named Agapito (the testatrix's supposed sole
compulsory and legal heir), who was preterited in the will, did not take
into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and
informed him that the testatrix did not know the executrix Marina Paje,
that the beneficiary's real name is Marilyn Sy and that she was not the
next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing
Marina and her cohorts to withdraw from various banks the deposits
Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for
not giving her access to the record of the probate case by alleging that it
was useless for Nenita to oppose the probate since Judge Honrado
would not change his decision. Nenita also said that Evangeline
insinuated that if she (Nenita) had ten thousand pesos, the case might be
decided in her favor. Evangeline allegedly advised Nenita to desist from
claiming the properties of the testatrix because she (Nenita) had no rights
thereto and, should she persist, she might lose her pension from the
Federal Government.
Judge Honrado in his brief comment did not deal specifically with the
allegations of the complaint. He merely pointed to the fact that Nenita did
not appeal from the decree of probate and that in a motion dated July 6,
1976 she asked for a thirty day period within which to vacate the house of
the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with
Nenita and that the latter did not mention Evangeline in her letter dated
September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline)
prevented Nenita from having access to the record of the testamentary
proceeding. Evangeline was not the custodian of the record. Evangeline "
strongly, vehemently and flatly denied" Nenita's charge that she
(Evangeline) said that the sum of ten thousand pesos was needed in
order that Nenita could get a favorable decision. Evangeline also denied
that she has any knowledge of Nenita's pension from the Federal
Government.
The 1978 complaint against Judge Honorado was brought to attention of
this Court in the Court Administrator's memorandum of September 25,
1980. The case was referred to Justice Juan A. Sison of the Court of
Appeals for investigation, report and recommendation. He submitted a
report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against
Judge Honrado a petition for certiorari and prohibition wherein she
prayed that the will, the decree of probate and all the proceedings in the
probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who
notarized the will. He swore that the testatrix and the three attesting
witnesses did not appear before him and that he notarized the will "just to
accommodate a brother lawyer on the condition" that said lawyer would
bring to the notary the testatrix and the witnesses but the lawyer never
complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy
was an appeal and her failure to do so did not entitle her to resort to the
special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-
08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a
motion to dismiss the administrative case for having allegedly become
moot and academic.
We hold that disciplinary action should be taken against respondent
judge for his improper disposition of the testate case which might have
resulted in a miscarriage of justice because the decedent's legal heirs
and not the instituted heiress in the void win should have inherited the
decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust
judgment or interlocutory order or rendering a manifestly unjust judgment
or interlocutory order by reason of inexcusable negligence or ignorance
(Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of first
instance for serious misconduct or inefficiency ( Sec. 67, Judiciary Law).
Misconduct implies malice or a wrongful intent, not a mere error of
judgment. "For serious misconduct to exist, there must be reliable
evidence showing that the judicial acts complained of were corrupt or
inspired by an intention to violate the law, or were in persistent disregard
of well-known legal rules" (In relmpeachment of Horrilleno, 43 Phil. 212,
214-215).
Inefficiency implies negligence, incompetence, ignorance and
carelessness. A judge would be inexcusably negligent if he failed to
observe in the performance of his duties that diligence, prudence and
circumspection which the law requires in the rendition of any public
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA
107, 119).
In this case, respondent judge, on perusing the will and noting that it was
written in English and was thumb marked by an obviously illiterate
testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a
language "understood and known" to the testatrix. But in its concluding
paragraph, it was stated that the will was read to the testatrix "and
translated into Filipino language". (p. 16, Record of testate case). That
could only mean that the will was written in a language not known to the
illiterate testatrix and, therefore, it is void because of the mandatory
provision of article 804 of the Civil Code that every will must be executed
in a language or dialect known to the testator. Thus, a will written in
English, which was not known to the Igorot testator, is void and was
disallowed (Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and
notarial acknowledgment where Marcelina Salvador Suroza is repeatedly
referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have noted
not only the anomaly as to the language of the will but also that there was
something wrong in instituting the supposed granddaughter as sole
heiress and giving nothing at all to her supposed father who was still
alive.
Furthermore, after the hearing conducted by respondent deputy clerk of
court, respondent judge could have noticed that the notary was not
presented as a witness.
In spite of the absence of an opposition, respondent judge should have
personally conducted the hearing on the probate of the will so that he
could have ascertained whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of duty
to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina
S. Suroza, a fine equivalent to his salary for one month is imposed on
respondent judge (his compulsory retirement falls on December 25,
1981).
The case against respondent Yuipco has become moot and academic
because she is no longer employed in the judiciary. Since September 1,
1980 she has been assistant city fiscal of Surigao City. She is beyond
this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No.
2044-CFI November 21, 1980, 101 SCRA 225).
SO ORDERED.
G.R. No. L-4067            November 29, 1951
In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO
GARCIA, petitioner, 
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the
will of Antero Mercado dated January 3, 1943. The will is written in the
Ilocano dialect and contains the following attestation clause:
We, the undersigned, by these presents to declare that the
foregoing testament of Antero Mercado was signed by himself
and also by us below his name and of this attestation clause and
that of the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in Ilocano
dialect which is spoken and understood by the testator, and it
bears the corresponding number in letter which compose of three
pages and all them were signed in the presence of the testator
and witnesses, and the witnesses in the presence of the testator
and all and each and every one of us witnesses.
 In testimony, whereof, we sign this statement, this the third day of
January, one thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who
wrote the name of Antero Mercado, followed below by "A reugo del
testator" and the name of Florentino Javier. Antero Mercado is alleged to
have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte,
ruled that the attestation clause failed (1) to certify that the will was
signed on all the left margins of the three pages and at the end of the will
by Atty. Florentino Javier at the express request of the testator in the
presence of the testator and each and every one of the witnesses; (2) to
certify that after the signing of the name of the testator by Atty. Javier at
the former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists
and at the end thereof; (3) to certify that the three witnesses signed the
will in all the pages thereon in the presence of the testator and of each
other.
In our opinion, the attestation clause is fatally defective for failing to state
that Antero Mercado caused Atty. Florentino Javier to write the testator's
name under his express direction, as required by section 618 of the Code
of Civil Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that
there is no need for such recital because the cross written by the testator
after his name is a sufficient signature and the signature of Atty.
Florentino Javier is a surplusage. Petitioner's theory is that the cross is as
much a signature as a thumbmark, the latter having been held sufficient
by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil.,
104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual
signature of Antero Mercado or even one of the ways by which he signed
his name. After mature reflection, we are not prepared to liken the mere
sign of the cross to a thumbmark, and the reason is obvious. The cross
cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a
sufficient recital in the attestation clause as to the signing of the will by
the testator in the presence of the witnesses, and by the latter in the
presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the
petitioner. So ordered.
G.R. No. L-5971            February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees, 
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due
execution of the instrument propounded as a will in the court below, is
whether one of the subscribing witnesses was present in the small room
where it was executed at the time when the testator and the other
subscribing witnesses attached their signatures; or whether at that time
he was outside, some eight or ten feet away, in a large room connecting
with the smaller room by a doorway, across which was hung a curtain
which made it impossible for one in the outside room to see the testator
and the other subscribing witnesses in the act of attaching their
signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing
witness was in the small room with the testator and the other subscribing
witnesses at the time when they attached their signatures to the
instrument, and this finding, of course, disposes of the appeal and
necessitates the affirmance of the decree admitting the document to
probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of
this question of fact of vital importance in the determination of this case,
as he was of opinion that under the doctrine laid down in the case
of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the
subscribing witnesses was in the outer room when the testator and the
other describing witnesses signed the instrument in the inner room, had it
been proven, would not be sufficient in itself to invalidate the execution of
the will. But we are unanimously of opinion that had this subscribing
witness been proven to have been in the outer room at the time when the
testator and the other subscribing witnesses attached their signatures to
the instrument in the inner room, it would have been invalid as a will, the
attaching of those signatures under circumstances not being done "in the
presence" of the witness in the outer room. This because the line of
vision from this witness to the testator and the other subscribing
witnesses would necessarily have been impeded by the curtain
separating the inner from the outer one "at the moment of inscription of
each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other
sign, but whether they might have been seen each other sign,
had they chosen to do so, considering their mental and physical
condition and position with relation to each other at the moment
of inscription of each signature.
But it is especially to be noted that the position of the parties with relation
to each other at the moment of the subscription of each signature, must
be such that they may see each other sign if they choose to do so. This,
of course, does not mean that the testator and the subscribing witnesses
may be held to have executed the instrument in the presence of each
other if it appears that they would not have been able to see each other
sign at that moment, without changing their relative positions or existing
conditions. The evidence in the case relied upon by the trial judge
discloses that "at the moment when the witness Javellana signed the
document he was actually and physically present and in such position
with relation to Jaboneta that he could see everything that took place by
merely casting his eyes in the proper direction and without any physical
obstruction to prevent his doing so." And the decision merely laid down
the doctrine that the question whether the testator and the subscribing
witnesses to an alleged will sign the instrument in the presence of each
other does not depend upon proof of the fact that their eyes were actually
cast upon the paper at the moment of its subscription by each of them,
but that at that moment existing conditions and their position with relation
to each other were such that by merely casting the eyes in the proper
direction they could have seen each other sign. To extend the doctrine
further would open the door to the possibility of all manner of fraud,
substitution, and the like, and would defeat the purpose for which this
particular condition is prescribed in the code as one of the requisites in
the execution of a will.
The decree entered by the court below admitting the instrument
propounded therein to probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of this instance against the
appellant.
G.R. No. L-18979             June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE. 
CELSO ICASIANO, petitioner-appellee, 
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-
appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to
probate the document and its duplicate, marked as Exhibits "A" and "A-
1", as the true last will and testament of Josefa Villacorte, deceased, and
appointing as executor Celso Icasiano, the person named therein as
such.
This special proceeding was begun on October 2, 1958 by a petition for
the allowance and admission to probate of the original, Exhibit "A" as the
alleged will of Josefa Villacorte, deceased, and for the appointment of
petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and
caused notice thereof to be published for three (3) successive weeks,
previous to the time appointed, in the newspaper "Manila chronicle", and
also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed
her opposition; and on November 10, 1958, she petitioned to have herself
appointed as a special administrator, to which proponent objected.
Hence, on November 18, 1958, the court issued an order appointing the
Philippine Trust Company as special administrator.  1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed
a manifestation adopting as his own Natividad's opposition to the probate
of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction
of his evidence; but on June 1, 1959, he filed a motion for the admission
of an amended and supplemental petition, alleging that the decedent left
a will executed in duplicate with all the legal requirements, and that he
was, on that date, submitting the signed duplicate (Exhibit "A-1"), which
he allegedly found only on or about May 26, 1959. On June 17, 1959,
oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their
joint opposition to the admission of the amended and supplemental
petition, but by order of July 20, 1959, the court admitted said petition,
and on July 30, 1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective evidence,
and after several hearings the court issued the order admitting the will
and its duplicate to probate. From this order, the oppositors appealed
directly to this Court, the amount involved being over P200,000.00, on the
ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on June
2, 1956, the late Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and attested by three
instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose
V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by
the testatrix and by the said three instrumental witnesses on the same
date before attorney Jose Oyengco Ong, Notary Public in and for the City
of Manila; and that the will was actually prepared by attorney Fermin
Samson, who was also present during the execution and signing of the
decedent's last will and testament, together with former Governor Emilio
Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said
three instrumental witnesses to the execution of the decedent's last will
and testament, attorneys Torres and Natividad were in the Philippines at
the time of the hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public before whom the will
was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The
latter also testified upon cross examination that he prepared one original
and two copies of Josefa Villacorte last will and testament at his house in
Baliuag, Bulacan, but he brought only one original and one signed copy
to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting witnesses, Atty.
Jose V. Natividad, on page three (3) thereof; but the duplicate copy
attached to the amended and supplemental petition and marked as
Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in
each and every page.
The testimony presented by the proponents of the will tends to show that
the original of the will and its duplicate were subscribed at the end and on
the left margin of each and every page thereof by the testatrix herself and
attested and subscribed by the three mentioned witnesses in the
testatrix's presence and in that of one another as witnesses (except for
the missing signature of attorney Natividad on page three (3) of the
original); that pages of the original and duplicate of said will were duly
numbered; that the attestation clause thereof contains all the facts
required by law to be recited therein and is signed by the aforesaid
attesting witnesses; that the will is written in the language known to and
spoken by the testatrix that the attestation clause is in a language also
known to and spoken by the witnesses; that the will was executed on one
single occasion in duplicate copies; and that both the original and the
duplicate copies were duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the
original, admits that he may have lifted two pages instead of one when he
signed the same, but affirmed that page three (3) was signed in his
presence.
Oppositors-appellants in turn introduced expert testimony to the effect
that the signatures of the testatrix in the duplicate (Exhibit "A-1") are not
genuine nor were they written or affixed on the same occasion as the
original, and further aver that granting that the documents were genuine,
they were executed through mistake and with undue influence and
pressure because the testatrix was deceived into adopting as her last will
and testament the wishes of those who will stand to benefit from the
provisions of the will, as may be inferred from the facts and
circumstances surrounding the execution of the will and the provisions
and dispositions thereof, whereby proponents-appellees stand to profit
from properties held by them as attorneys-in-fact of the deceased and not
enumerated or mentioned therein, while oppositors-appellants are
enjoined not to look for other properties not mentioned in the will, and not
to oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.
We have examined the record and are satisfied, as the trial court was,
that the testatrix signed both original and duplicate copies (Exhibits "A"
and "A-1", respectively) of the will spontaneously, on the same in the
presence of the three attesting witnesses, the notary public who
acknowledged the will; and Atty. Samson, who actually prepared the
documents; that the will and its duplicate were executed in Tagalog, a
language known to and spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty. Fermin Samson, together
before they were actually signed; that the attestation clause is also in a
language known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of
the testatrix appearing in the duplicate original were not written by the
same had which wrote the signatures in the original will leaves us
unconvinced, not merely because it is directly contradicted by expert
Martin Ramos for the proponents, but principally because of the paucity
of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond
the writer's range of normal scriptural variation. The expert has, in fact,
used as standards only three other signatures of the testatrix besides
those affixed to the original of the testament (Exh. A); and we feel that
with so few standards the expert's opinion and the signatures in the
duplicate could not be those of the testatrix becomes extremely
hazardous. This is particularly so since the comparison charts Nos. 3 and
4 fail to show convincingly that the are radical differences that would
justify the charge of forgery, taking into account the advanced age of the
testatrix, the evident variability of her signatures, and the effect of writing
fatigue, the duplicate being signed right the original. These, factors were
not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted
and questioned signatures does not appear reliable, considering the
standard and challenged writings were affixed to different kinds of paper,
with different surfaces and reflecting power. On the whole, therefore, we
do not find the testimony of the oppositor's expert sufficient to overcome
that of the notary and the two instrumental witnesses, Torres and
Natividad (Dr. Diy being in the United States during the trial, did not
testify).
Nor do we find adequate evidence of fraud or undue influence. The fact
that some heirs are more favored than others is proof of neither (see In
re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs.
Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for
making a testament; otherwise, the decedent might as well die intestate.
The testamentary dispositions that the heirs should not inquire into other
property and that they should respect the distribution made in the will,
under penalty of forfeiture of their shares in the free part do not suffice to
prove fraud or undue influence. They appear motivated by the desire to
prevent prolonged litigation which, as shown by ordinary experience,
often results in a sizeable portion of the estate being diverted into the
hands of non-heirs and speculators. Whether these clauses are valid or
not is a matter to be litigated on another occassion. It is also well to note
that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off.
Gaz. 168, fraud and undue influence are mutually repugnant and exclude
each other; their joining as grounds for opposing probate shows absence
of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness
to affix his signature to one page of a testament, due to the simultaneous
lifting of two pages in the course of signing, is not per se sufficient to
justify denial of probate. Impossibility of substitution of this page is
assured not only the fact that the testatrix and two other witnesses did
sign the defective page, but also by its bearing the coincident imprint of
the seal of the notary public before whom the testament was ratified by
testatrix and all three witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no control,
where the purpose of the law to guarantee the identity of the testament
and its component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record attests to the full
observance of the statutory requisites. Otherwise, as stated in Vda. de
Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) "witnesses may sabotage the will by muddling or
bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by the
duplicate copy of the will, which bears a complete set of signatures in
every page. The text of the attestation clause and the acknowledgment
before the Notary Public likewise evidence that no one was aware of the
defect at the time.
This would not be the first time that this Court departs from a strict and
literal application of the statutory requirements, where the purposes of the
law are otherwise satisfied. Thus, despite the literal tenor of the law, this
Court has held that a testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the pages of a will, the failure
to make the first page either by letters or numbers is not a fatal defect
(Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's
policy to require satisfaction of the legal requirements in order to guard
against fraud and bid faith but without undue or unnecessary curtailment
of the testamentary privilege.
The appellants also argue that since the original of the will is in existence
and available, the duplicate (Exh. A-1) is not entitled to probate. Since
they opposed probate of original because it lacked one signature in its
third page, it is easily discerned that oppositors-appellants run here into a
dilemma; if the original is defective and invalid, then in law there is no
other will but the duly signed carbon duplicate (Exh. A-1), and the same
is probatable. If the original is valid and can be probated, then the
objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves
to prove that the omission of one signature in the third page of the
original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted
without a new publication does not affect the jurisdiction of the probate
court, already conferred by the original publication of the petition for
probate. The amended petition did not substantially alter the one first
filed, but merely supplemented it by disclosing the existence of the
duplicate, and no showing is made that new interests were involved (the
contents of Exhibit A and A-1 are admittedly identical); and appellants
were duly notified of the proposed amendment. It is nowhere proved or
claimed that the amendment deprived the appellants of any substantial
right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed,
with costs against appellants.
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,  appeared before the notary public to acknowledge the will. On the other
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch
I, Court of First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of
Cebu allowing the probate of the last will a testament of the late Valente
Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the
said decease opposed the allowance of the will (Exhibit "E"), alleging the
will was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was execute without the testator
having been fully informed of the content thereof, particularly as to what
properties he was disposing and that the supposed last will and
testament was not executed in accordance with law. Notwithstanding her
objection, the Court allowed the probate of the said last will and
testament Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of
the case hinges, is whether the supposed last will and testament of
Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first requiring
at least three credible witnesses to attest and subscribe to the will, and
the second requiring the testator and the witnesses to acknowledge the
will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T.
Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of
them, the last named, is at the same time the Notary Public before whom
the will was supposed to have been acknowledged. Reduced to simpler
terms, the question was attested and subscribed by at least three
credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the
notary public to acknowledge the same. As the third witness is the notary
public himself, petitioner argues that the result is that only two witnesses
hand, private respondent-appellee, Manuel B. Lugay, who is the
supposed executor of the will, following the reasoning of the trial court,
maintains that there is substantial compliance with the legal requirement
of having at least three attesting witnesses even if the notary public acted
as one of them, bolstering up his stand with 57 American Jurisprudence,
p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a
will as against the purely technical reason that one of the
witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath
rather than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are
inclined to sustain that of the appellant that the last will and testament in
question was not executed in accordance with law. The notary public
before whom the will was acknowledged cannot be considered as the
third instrumental witness since he cannot acknowledge before himself
his having signed the will. To acknowledge before means to avow
(Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239,
247); to own as genuine, to assent, to admit; and "before" means in front
or preceding in space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls New
Standard Dictionary of the English Language, p. 252; Webster's New
International Dictionary 2d. p. 245.) Consequently, if the third witness
were the notary public himself, he would have to avow assent, or admit
his having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will appear
before the other to acknowledge his participation in the making of the will.
To permit such a situation to obtain would be sanctioning a sheer
absurdity.
Furthermore, the function of a notary public is, among others, to guard
against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G.
583.) That function would defeated if the notary public were one of the
attesting instrumental witnesses. For them he would be interested
sustaining the validity of the will as it directly involves him and the validity
of his own act. It would place him in inconsistent position and the very
purpose of acknowledgment, which is to minimize fraud (Report of Code
Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public
may, in addition, act as a witness to the executive of the document he
has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482;
Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing
merely as notary in a will nonetheless makes him a witness thereon
(Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d.
641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In
Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See
also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not
serve the purpose of the law in this jurisdiction or are not decisive of the
issue herein because the notaries public and witnesses referred to
aforecited cases merely acted as instrumental, subscribing attesting
witnesses, and not as acknowledging witnesses. He the notary public
acted not only as attesting witness but also acknowledging witness, a
situation not envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the
will or file another with the office of the Clerk of Court.
[Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two
attesting witnesses to the will which would be in contravention of the
provisions of Article 80 be requiring at least three credible witnesses to
act as such and of Article 806 which requires that the testator and the
required number of witnesses must appear before the notary public to
acknowledge the will. The result would be, as has been said, that only
two witnesses appeared before the notary public for or that purpose. In
the circumstances, the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby
reversed and the probate of the last will and testament of Valente Z. Cruz
(Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.
G.R. No. L-7179             June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD
JAVELLANA, petitioner-appellee, 
vs.
DOÑA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to
probate the documents in the Visayan dialect, marked Exhibits D and E,
as the testament and codicil duly executed by the deceased Da.
Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29,
1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana
and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma,
sister and nearest surviving relative of said deceased, appealed from the
decision, insisting that the said exhibits were not executed in conformity
with law. The appeal was made directly to this Court because the value of
the properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix
lacked testamentary capacity and that the dispositions were procured
through undue influence. These grounds were abandoned at the hearing
in the court below, where the issue was concentrated into three specific
questions: (1) whether the testament of 1950 was executed by the
testatrix in the presence of the instrumental witnesses; (2) whether the
acknowledgment clause was signed and the notarial seal affixed by the
notary without the presence of the testatrix and the witnesses; and (3) if
so, whether the codicil was thereby rendered invalid and ineffective.
These questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to
her witnesses Maria Paderogao and Vidal Allado, cook and driver,
respectively, of the deceased Apolinaria Ledesma. Both testified that on
March 30, 1950, they saw and heard Vicente Yap (one of the witnesses
to the will) inform the deceased that he had brought the "testamento" and
urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria
manifested that she could not go, because she was not feeling well; and
that upon Yap's insistence that the will had to be signed in the attorney's
office and not elsewhere, the deceased took the paper and signed it in
the presence of Yap alone, and returned it with the statement that no one
would question it because the property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for
reversing the trial Court's rejection of the improbable story of the
witnesses. It is squarely contradicted by the concordant testimony of the
instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife
Gloria Montinola, who asserted under oath that the testament was
executed by testatrix and witnesses in the presence of each other, at the
house of the decedent on General Hughes St., Iloilo City, on March 30,
1950. And it is highly unlikely, and contrary to usage, that either Tabiana
or Yap should have insisted that Da. Apolinaria, an infirm lady then over
80 years old, should leave her own house in order to execute her will,
when all three witnesses could have easily repaired thither for the
purpose. Moreover, the cross-examination has revealed fatal flaws in the
testimony of Contestant's witnesses. Both claim to have heard the word
"testamento" for the first time when Yap used it; and they claimed ability
to recall that word four years later, despite the fact that the term meant
nothing to either. It is well known that what is to be remembered must first
be rationally conceived and assimilated (II Moore on Facts, p. 884).
Likewise, Maria Paderogao was positive that Yap brought the will, and
that the deceased alone signed it, precisely on March 30, 1950; but she
could remember no other date, nor give satisfactory explanation why that
particular day stuck in her mind. Worse still, Allado claimed to have heard
what allegedly transpired between Yap and Da. Apolinaria from the
kitchen of the house, that was later proved to have been separated from
the deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from the
kitchen. Later, on redirect examination, Allado sought to cure his
testimony by claiming that he was upstairs in a room where the servants
used to eat when he heard Yap converse with his mistress; but this
correction is unavailing, since it was plainly induced by two highly leading
questions from contestant's counsel that had been previously ruled out by
the trial Court. Besides, the contradiction is hardly consonant with this
witness' 18 years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the
instrumental witnesses urged upon us by the contestant-appellant,
concerning the presence or absence of Aurelio Montinola at the signing
of the testament or of the codicil, and the identity of the person who
inserted the date therein, are not material and are largely imaginary,
since the witness Mrs. Tabiana confessed inability to remember all the
details of the transaction. Neither are we impressed by the argument that
the use of some Spanish terms in the codicil and testament (like legado,
partes iguales, plena propiedad) is proof that its contents were not
understood by the testatrix, it appearing in evidence that those terms are
of common use even in the vernacular, and that the deceased was a
woman of wide business interests.
The most important variation noted by the contestants concerns that
signing of the certificate of acknowledgment (in Spanish) appended to the
Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was
executed after the enactment of the new Civil Code, and, therefore, had
to be acknowledged before a notary public (Art. 806). Now, the
instrumental witnesses (who happen to be the same ones who attested
the will of 1950) asserted that after the codicil had been signed by the
testatrix and the witnesses at the San Pablo Hospital, the same was
signed and sealed by notary public Gimotea on the same occasion. On
the other hand, Gimotea affirmed that he did not do so, but brought the
codicil to his office, and signed and sealed it there. The variance does not
necessarily imply conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established phenomenon, the
tendency of the mind, in recalling past events, to substitute the usual and
habitual for what differs slightly from it (II Moore on Facts, p. 878; The
Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary
signed the certification of acknowledgment in the presence of the testatrix
and the witnesses, does not affect the validity of the codicil. Unlike the
Code of 1889 (Art. 699), the new Civil Code does not require that the
signing of the testator, witnesses and notary should be accomplished in
one single act. A comparison of Articles 805 and 806 of the new Civil
Code reveals that while testator and witnesses sign in the presence of
each other, all that is thereafter required is that "every will must be
acknowledged before a notary public by the testator and the witnesses"
(Art. 806); i.e., that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their actions in
executing the testamentary disposition. This was done in the case before
us. The subsequent signing and sealing by the notary of his certification
that the testament was duly acknowledged by the participants therein is
no part of the acknowledgment itself nor of the testamentary act. Hence
their separate execution out of the presence of the testatrix and her
witnesses can not be said to violate the rule that testaments should be
completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or,
as the Roman maxim puts it, "uno codem die ac tempore in eadem loco",
and no reversible error was committed by the Court in so holding. It is
noteworthy that Article 806 of the new Civil Code does not contain words
requiring that the testator and the witnesses should acknowledge the
testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against
appellant.
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN
CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN
CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR
RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO
VELANO, and CONSESO CANEDA, represented herein by his heirs,
JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners, 
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review
on certiorari is the issue of whether or not the attestation clause
contained in the last will and testament of the late Mateo Caballero
complies with the requirements of Article 805, in relation to Article 809, of
the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a
widower without any children and already in the twilight years of his life,
executed a last will and testament at his residence in Talisay, Cebu
before three attesting witnesses, namely, Cipriano Labuca, Gregorio
Cabando and Flaviano Toregosa. The said testator was duly assisted by
his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo
Manigos, in the preparation of that last will.  It was declared therein,
1
among other things, that the testator was leaving by way of legacies and
devises his real and personal properties to Presentacion Gaviola, Angel
Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
Marcosa Alcantara, all of whom do not appear to be related to the
testator.2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a
petition docketed as Special Proceeding No. 3899-R before Branch II of
the then Court of First Instance of Cebu seeking the probate of his last
will and testament. The probate court set the petition for hearing on
August 20, 1979 but the same and subsequent scheduled hearings were
postponed for one reason to another. On May 29, 1980, the testator
passed away before his petition could finally be heard by the probate
court.  On February 25, 1981, Benoni Cabrera, on of the legatees named
3
in the will, sough his appointment as special administrator of the
testator's estate, the estimated value of which was P24,000.00, and he
was so appointed by the probate court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the
testator, instituted a second petition, entitled "In the Matter of the
Intestate Estate of Mateo Caballero" and docketed as Special Proceeding
No. 3965-R, before Branch IX of the aforesaid Court of First Instance of
Cebu. On October 18, 1982, herein petitioners had their said petition
intestate proceeding consolidated with Special Proceeding No. 3899-R in
Branch II of the Court of First Instance of Cebu and opposed thereat the
probate of the Testator's will and the appointment of a special
administrator for his estate.
5
Benoni Cabrera died on February 8, 1982 hence the probate court, now
known as Branch XV of the Regional Trial Court of Cebu, appointed
William Cabrera as special administrator on June 21, 1983. Thereafter,
on July 20, 1983, it issued an order for the return of the records of
Special Proceeding No. 3965-R to the archives since the testate
proceeding for the probate of the will had to be heard and resolved first.
On March 26, 1984 the case was reraffled and eventually assigned to
Branch XII of the Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein
petitioners appeared as oppositors and objected to the allowance of the
testator's will on the ground that on the alleged date of its execution, the
testator was already in the poor state of health such that he could not
have possibly executed the same. Petitioners likewise reiterated the
issue as to the genuineness of the signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and
the notary public Atty. Filoteo Manigos, testified that the testator executed
the will in question in their presence while he was of sound and disposing
mind and that, contrary to the assertions of the oppositors, Mateo
Caballero was in good health and was not unduly influenced in any way
in the execution of his will. Labuca also testified that he and the other
witnesses attested and signed the will in the presence of the testator and
of each other. The other two attesting witnesses were not presented in
the probate hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will
in question as the last will and testament of the late Mateo Caballero, on
the ratiocination that:
. . . The self-serving testimony of the two witnesses of the
oppositors cannot overcome the positive testimonies of
Atty. Filoteo Manigos and Cipriano Labuca who clearly
told the Court that indeed Mateo Caballero executed the
Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo
Caballero who initiated the probate of his Will during his
lifetime when he caused the filing of the original petition
now marked Exhibit "D" clearly underscores the fact that
this was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of
Mateo Caballero in Exhibit "C" examined by a handwriting
expert of the NBI but it would seem that despite their
avowal and intention for the examination of this signature
of Mateo Caballero in Exhibit "C", nothing came out of it
because they abandoned the idea and instead presented
Aurea Caballero and Helen Caballero Campo as
witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the
Last Will and Testament of Mateo Caballero and that it
was executed in accordance with all the requisites of the
law.9
Undaunted by the said judgment of the probate court, petitioners elevated
the case in the Court of Appeals in CA-G.R. CV No. 19669. They
asserted therein that the will in question is null and void for the reason
that its attestation clause is fatally defective since it fails to specifically
state that the instrumental witnesses to the will witnessed the testator
signing the will in their presence and that they also signed the will and all
the pages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its
decision   affirming that of the trial court, and ruling that the attestation
10
clause in the last will of Mateo Caballero substantially complies with
Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in
question may be considered as having substantialy
 complied with the requirements of Art. 805 of the Civil
Code. What appears in the attestation clause which the
oppositors claim to be defective is "we do certify that the
testament was read by him and the attestator, Mateo
Caballero, has published unto us the foregoing will
consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in
letters of the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page
thereof, on the spaces provided for his signature and on
the left hand margin in the presence of the said testator
and in the presence of each and all of us (emphasis
supplied).
To our thinking, this is sufficient compliance and no
evidence need be presented to indicate the meaning that
the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one
another. Or as the language of the law would have it that
the testator signed the will "in the presence of the
instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence
of the testator and of one another." If not completely or
ideally perfect in accordance with the wordings of Art. 805
but (sic) the phrase as formulated is in substantial
compliance with the requirement of the law."  11
Petitioners moved for the reconsideration of the said ruling of respondent
court, but the same was denied in the latter's resolution of January 14,
1992,   hence this appeal now before us. Petitioners assert that
12
respondent court has ruled upon said issue in a manner not in accord
with the law and settled jurisprudence on the matter and are now
questioning once more, on the same ground as that raised before
respondent court, the validity of the attestation clause in the last will of
Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly
hereafter, after some prefatory observations which we feel should be
made in aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person
is permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate after his death.   Under the Civil
13
Code, there are two kinds of wills which a testator may execute.  the first
14
kind is the ordinary or attested will, the execution of which is governed by
Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation should state the number of pages used
upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the
witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public
by a testator and the attesting witness.  hence it is likewise known as
15
notarial will. Where the attestator is deaf or deaf-mute, Article 807
requires that he must personally read the will, if able to do so. Otherwise,
he should designate two persons who would read the will and
communicate its contents to him in a practicable manner. On the other
hand, if the testator is blind, the will should be read to him twice; once, by
anyone of the witnesses thereto, and then again, by the notary public
before whom it is acknowledged.  16
The other kind of will is the holographic will, which Article 810 defines as
one that is entirely written, dated, and signed by the testator himself. This
kind of will, unlike the ordinary type, requires no attestation by witnesses.
A common requirement in both kinds of will is that they should be in
writing and must have been executed in a language or dialect known to
the testator.  17
However, in the case of an ordinary or attested will, its attestation clause
need not be written in a language or dialect known to the testator since it
does not form part of the testamentary disposition. Furthermore, the
language used in the attestation clause likewise need not even be known
to the attesting witnesses.   The last paragraph of Article 805 merely
18
requires that, in such a case, the attestation clause shall be interpreted to
said witnesses.
An attestation clause refers to that part of an ordinary will whereby the
attesting witnesses certify that the instrument has been executed before
them and to the manner of the execution the same.   It is a separate
19
memorandum or record of the facts surrounding the conduct of execution
and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been
observed.   It is made for the purpose of preserving in a permanent form
20
a record of the facts that attended the execution of a particular will, so
that in case of failure of the memory of the attesting witnesses, or other
casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack
of which would result in the invalidity of the will,   should state (1) the
22
number of the pages used upon which the will is written; (2) that
the testator signed, or expressly caused another to sign, the will and
every page thereof in the presence of the attesting witnesses; and (3)
that the attesting witnesses witnessed the signing by the testator of the
will and all its pages, and that saidwitnesses also signed the will and
every page thereof in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of
pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent any
increase or decrease in the pages;  whereas the subscription of the
23
signature of the testator and the attesting witnesses is made for the
purpose of authentication and identification, and thus indicates that the
will is the very same instrument executed by the testator and attested to
by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby
declare the due execution of the will as embodied in the attestation
clause.  The attestation clause, therefore, provide strong legal guaranties
25
for the due execution of a will and to insure the authenticity thereof.  As it
26
appertains only to the witnesses and not to the testator, it need be signed
only by them.  Where it is left unsigned, it would result in the invalidation
27
of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and its witnesses. 28
In its report, the Code Commission commented on the reasons of the law
for requiring the formalities to be followed in the execution of wills, in the
following manner:
The underlying and fundamental objectives permeating
the provisions on the law on wills in this Project consists
in the liberalization of the manner of their execution with
the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficient safeguards
and restrictions to prevent the commission of fraud and
the exercise of undue and improper pressure and
influence upon the testator.
This objective is in accord with the modern tendency with
respect to the formalities in the execution of wills. . . .
29
2. An examination of the last will and testament of Mateo Caballero
shows that it is comprised of three sheets all of which have been
numbered correlatively, with the left margin of each page thereof bearing
the respective signatures of the testator and the three attesting
witnesses. The part of the will containing the testamentary dispositions is
expressed in the Cebuano-Visayan dialect and is signed at the foot
thereof by the testator. The attestation clause in question, on the other
hand, is recited in the English language and is likewise signed at the end
thereof by the three attesting witnesses hereto.  Since it is the proverbial
30
bone of contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose
Residences and postal addresses appear on the
Opposite of our respective names, we do hereby certify
that the Testament was read by him and the testator,
MATEO CABALLERO; has published unto us the
foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in
the letters on the upper part of each page, as his Last Will
and Testament and he has the same and every page
thereof, on the spaces provided for his signature and on
 the left hand margin, in the presence of the said testator
and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both
attest and subscribe to the will in the presence of the testator and of one
another. "Attestation" and "subscription" differ in meaning. Attestation is
the act of senses, while subscription is the act of the hand. The former is
mental, the latter mechanical, and to attest a will is to know that it was
published as such, and to certify the facts required to constitute an actual
and legal publication; but to subscribe a paper published as a will is only
to write on the same paper the names of the witnesses, for the sole
purpose of identification. 31
In Taboada vs. Rizal,  we clarified that attestation consists in witnessing
32
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 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. As it involves a mental act, there would be no
means, therefore, of ascertaining by a physical examination of the will
whether the witnesses had indeed signed in the presence of the testator
and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of
Article 805 of the Civil Code for attestation clauses, fails to specifically
state the fact that the attesting witnesses the testator sign the will and all
its pages in their presence and that they, the witnesses, likewise signed
the will and every page thereof in the presence of the testator and of
each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause
herein assailed is the fact that while it recites that the testator indeed
signed the will and all its pages in the presence of the three attesting
witnesses and states as well the number of pages that were used, the
same does not expressly state therein the circumstance that said
witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin," obviously
refers to the testator and not the instrumental witnesses as it is
immediately preceded by the words "as his Last Will and Testament." On
the other hand, although the words "in the presence of the testator and in
the presence of each and all of us" may, at first blush, appear to likewise
signify and refer to the witnesses, it must, however, be interpreted as
referring only to the testator signing in the presence of the witnesses
since said phrase immediately follows the words "he has signed the
same and every page thereof, on the spaces provided for his signature
and on the left hand margin." What is then clearly lacking, in the final
logical analysis , is the statement that the witnesses signed the will and
every page thereof in the presence of the testator and of one another.
It is our considered view that the absence of that statement required by
law is a fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving
the form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the
pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it
is not proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at
the end thereof and at the left margin of each page by the three attesting
witnesses, it certainly cannot be conclusively inferred therefrom that the
said witness affixed their respective signatures in the presence of the
testator and of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting witnesses did subscribe to
the will in the presence of the testator and of each other. The execution of
a will is supposed to be one act so that where the testator and the
witnesses sign on various days or occasions and in various
combinations, the will cannot be stamped with the imprimatur of
effectivity.
33
We believe that the further comment of former Justice J.B.L.
Reyes  regarding Article 809, wherein he urged caution in the application
34
of the substantial compliance rule therein, is correct and should be
applied in the case under consideration, as well as to future cases with
similar questions:
. . . The rule must be limited to disregarding those defects
that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered;
whether the signatures appear in each and every page;
whether the subscribing witnesses are three or the will
was notarized. All theses are facts that the will itself can
reveal, and defects or even omissions concerning them in
the attestation clause can be safely disregarded. But the
total number of pages, and whether all persons required
to sign did so in the presence of each other must
substantially appear in the attestation clause, being the
only check against perjury in the probate proceedings.
(Emphasis ours.)
3. We stress once more that under Article 809, the defects and
imperfections must only be with respect to the form of the attestation or
the language employed therein. Such defects or imperfections would not
render a will invalid should it be proved that the will was really executed
and attested in compliance with Article 805. In this regard, however, the
manner of proving the due execution and attestation has been held to be
limited to merely an examination of the will itself without resorting to
evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause
totally omits the fact that the attesting witnesses signed each and every
page of the will in the presence of the testator and of each other.  In such
35
a situation, the defect is not only in the form or language of the attestation
clause but the total absence of a specific element required by Article 805
to be specifically stated in the attestation clause of a will. That is precisely
the defect complained of in the present case since there is no plausible
way by which we can read into the questioned attestation clause
statement, or an implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and all of its pages
and that said instrumental witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be
revoked or relied on by respondents since it presupposes that the defects
in the attestation clause can be cured or supplied by the text of the will or
a consideration of matters apparent therefrom which would provide the
data not expressed in the attestation clause or from which it may
necessarily be gleaned or clearly inferred that the acts not stated in the
omitted textual requirements were actually complied within the execution
of the will. In other words, defects must be remedied by intrinsic evidence
supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied by only extrinsic
evidence thereof, since an overall appreciation of the contents of the will
yields no basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements
by the instrumental witnesses, oblivious of the fact that he is thereby
resorting to extrinsic evidence to prove the same and would accordingly
be doing by the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be
followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal requirements
were at that time embodied primarily in Section 618 of Act No. 190, the
Code of Civil Procedure. Said section was later amended by Act No.
2645, but the provisions respecting said formalities found in Act. No. 190
and the amendment thereto were practically reproduced and adopted in
the Civil Code.
One view advance the liberal or substantial compliance rule. This was
first laid down in the case of Abangan vs. Abangan,  where it was held
36
that the object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guarantee their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain
these primordial ends. Nonetheless, it was also emphasized that 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, hence 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. The subsequent cases of Avera vs. Garcia,  Aldaba vs.
37
Roque,  Unson vs. Abella,  Pecson vs. Coronel,  Fernandez vs. Vergel
38 39 40
de Dios, et al., and Nayve vs. Mojal, et al.  all adhered to this position.
41 42
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are
mandatory in nature and are to be strictly construed was followed in the
subsequent cases of In the Matter of the Estate of Saguinsin,  In re Will
43
of Andrada,  Uy Coque vs. Sioca,  In re Estate of Neumark,  and Sano
44 45 46
vs. Quintana. 47
Gumban vs. Gorecho, et al.,  provided the Court with the occasion to
48
clarify the seemingly conflicting decisions in the aforementioned cases. In
said case of Gumban, the attestation clause had failed to state that the
witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator. The will in question was
disallowed, with these reasons therefor:
In support of their argument on the assignment of error
above-mentioned, appellants rely on a series of cases of
this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will
of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L.
Sioca [1922], 43 Phil., 405), and In re Estate of Neumark
([1923], 46 Phil., 841), and ending with Sano vs.
Quintana ([1925], 48 Phil., 506). Appellee counters with
the citation of a series of cases beginning with Abangan
vs. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922),
and culminating in Nayve vs. Mojal and Aguilar ([1924],
47 Phil., 152). In its last analysis, our task is to contrast
and, if possible, conciliate the last two decisions cited by
opposing counsel, namely, those of Sano vs.
Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided
that an attestation clause which does not recite that the
witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. The case
of Uy Coque vs. Sioca, supra, was cited, but the case
of Nayve vs. Mojal and Aguilar, supra, was not
mentioned. In contrast, is the decision in Nayve vs. Mojal
and Aguilar, supra, wherein it was held that the attestation
clause must estate the fact that the testator and the
witnesses reciprocally saw the signing of the will, for such
an act cannot be proved by the mere exhibition of the will,
if it is not stated therein. It was also held that the fact that
the testator and the witnesses signed each and every
page of the will can be proved also by the mere
examination of the signatures appearing on the document
itself, and the omission to state such evident facts does
not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous
cases; seldom do they admit inconsistency in doctrine.
Yet here, unless aided impossible to reconcile the Mojal
and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the
other, we reverse.
In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place,
the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two
strong dissenting opinions; the Quintana decision was
concurred in by seven members of the court, a clear
majority, with one formal dissent. In the second place, the
Mojal decision was promulgated in December, 1924,
while the Quintana decision was promulgated in
December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the
Quintana decision is believed more nearly to conform to
the applicable provisions of the law.
The right to dispose of property by will is governed
entirely by statute. The law of the case is here found in
section 61 of the Code of Civil Procedure as amended by
Act No. 2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as
amended that "No will . . . shall be valid . . . unless . . .." It
is further provided in the same section that "The
attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the
latter witnessed and signed the will and all pages thereof
in the presence of the testator and of each other." Codal
section 634 provides that "The will shall be disallowed in
either of the following case: 1. If not executed
and attested as in this Act provided." The law not alone
carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce
 legislative intention. It is not within the province of the
courts to disregard the legislative purpose so emphatically
and clearly expressed.
We adopt and reaffirm the decision in the case of Sano
vs. Quintana, supra, and, to the extent necessary, modify
the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions
of the Court that once more appeared to revive the seeming diversity of
views that was earlier threshed out therein. The cases of Quinto vs.
Morata, Rodriguez vs. Alcala,  Enchevarria vs. Sarmiento,  and Testate
49 50 51
Estate of Toray  went the way of the ruling as restated in Gumban.
52
But De Gala vs. Gonzales, et al.,  Rey vs. Cartagena,  De Ticson vs. De
53 54
Gorostiza, Sebastian vs. Panganiban,  Rodriguez vs. Yap,  Grey vs.
55 56 57
Fabia,  Leynez vs. Leynez,  Martir vs. Martir,  Alcala vs. De
58 59 60
Villa,  Sabado vs.
61
Fernandez,  Mendoza vs. Pilapil,   and Lopez vs. Liboro,  veered away
62 63 64
from the strict interpretation rule and established a trend toward an
application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views
and of the undeniable inclination towards a liberal construction,
recommended the codification of the substantial compliance rule, as it
believed this rule to be in accord with the modern tendency to give a
liberal approach to the interpretation of wills. Said rule thus became what
is now Article 809 of the Civil Code, with this explanation of the Code
Commission:
The present law provides for only one form of executing a
will, and that is, in accordance with the formalities
prescribed by Section 618 of the Code of Civil Procedure
as amended by Act No. 2645. The Supreme Court of the
Philippines had previously upheld the strict compliance
with the legal formalities and had even said that the
provisions of Section 618 of the Code of Civil Procedure,
as amended regarding the contents of the attestation
clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405).
These decisions necessarily restrained the freedom of the
testator in disposing of his property.
However, in recent years the Supreme Court changed its
attitude and has become more liberal in the interpretation
of the formalities in the execution of wills. This liberal view
is enunciated in the cases of Rodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs. Leynez, G.R. No.
46097, October 18, 1939; Martir vs. Martir, G.R. No.
46995, June 21, 1940; and Alcala vs. Villa, G.R. No.
47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court,
it has practically gone back to the original provisions of
Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this
attitude into a legislative declaration and to attain the
main objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the Project
is recommended, which reads:
"Art. 829. In the absence of bad faith,
forgery, or fraud, or undue and improper
pressure and influence, defects and
imperfections in the form of attestation or
in the language used therein shall not
render the will invalid if it is proved that the
will was in fact executed and attested in
substantial compliance with all the
requirements of article 829." 65
The so-called liberal rule, the Court said in Gil vs. Murciano,  "does not
66
offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop;
they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply
missing details that should appear in the will itself. They only permit a
probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty and
ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions
which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will
being assailed. However, those omissions which cannot be supplied
except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself.
67
WHEREFORE, the petition is hereby GRANTED and the impugned
decision of respondent court is hereby REVERSED and SET ASIDE. The
court a quo is accordingly directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the Probate of the Last Will and
Testament of Mateo Caballero) and to REVIVE Special Proceeding No.
3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with the settlement of the estate
of the said decedent.
SO ORDERED.
G.R. No. L-36033 November 5, 1982  want of a formality in its execution. In the same order, the petitioner was
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE
WILL OF DOROTEA PEREZ, (deceased): APOLONIO
TABOADA, petitioner,  could intervene in the summary settlement of the estate.
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of
Southern Leyte, (Branch III, Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the Court of First
Instance of Southern Leyte, Branch III, in Special Proceedings No. R-
1713, entitled "In the Matter of the Petition for Probate of the Will of
Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied
the probate of the will, the motion for reconsideration and the motion for
appointment of a special administrator.
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 three (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 three (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 Ramon C. Pamatian issued the
questioned order denying the probate of the will of Dorotea Perez for
also required to submit the names of the intestate heirs with their
corresponding addresses so that they could be properly notified and
Instead of complying with the order of the trial court, the petitioner filed a
manifestation and/or motion, ex partepraying 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 a motion for reconsideration 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 Honorable
Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal.
The said motions or incidents were still pending resolution when
respondent Judge Avelino S. Rosal assumed the position of presiding
judge of the respondent court.
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. In the same order
of denial, the motion for the appointment of special administrator was
likewise 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.
For the validity of a formal notarial will, does Article 805 of the Civil Code
require that the testatrix and all the three instrumental and attesting
witnesses sign at the end of the will and in the presence of the testatrix
and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the lacier witnesses and signed the will and the
pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to the witnesses, it shall
be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to
require that, for a notarial will to be valid, it is not enough that only the
testatrix signs at the "end" but an the three subscribing witnesses must
also sign at the same place or at the end, in the presence of the testatrix
and of one another because the attesting witnesses to a will attest not
merely the will itself but also the signature of the testator. It is not
sufficient compliance to sign the page, where the end of the will is found,
at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil
Code does not make it a condition precedent or a matter of absolute
necessity for the extrinsic validity of the wig that the signatures of the
subscribing witnesses should be specifically located at the end of the wig
after the signature of the testatrix. He contends that it would be absurd
that the legislature intended to place so heavy an import on the space or
particular location where the signatures are to be found as long as this
space or particular location wherein the signatures are found is consistent
with good faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, 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 three 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 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, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our
considered view that the will in this case was subscribed in a manner
which fully satisfies the purpose of Identification.
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. (Gonzales v. Gonzales, 90 Phil.
444, 449).
The law is to be liberally construed, "the underlying and fundamental
objective permeating the provisions on the law on wills in this project
consists in the liberalization of the manner of their execution with the end
in view of giving the testator more freedom in expressing his last wishes
but with sufficient safeguards and restrictions to prevent the commission
of fraud and the exercise of undue and improper pressure and influence
upon the testator. This objective is in accord with the modern tendency in
respect to the formalities in the execution of a will" (Report of the Code
commission, p. 103).
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.
We have examined the will in question and noticed that 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 wig 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".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the
following observations with respect to the purpose of the requirement that
the attestation clause must state the number of pages used:
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires
that the attestation clause shall state the number of pages
or sheets upon which the win is written, which
requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation
or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to
be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.
Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). 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.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which
applies a similar liberal approach:
... Impossibility of substitution of this page is assured not
only (sic) the fact that the testatrix and two other
witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary
public before whom the testament was ratified by testatrix
and all three witnesses. The law should not be so strictly
and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over
whose conduct she had no control where the purpose of
the law to guarantee the Identity of the testament and its
component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record
attests to the fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off.
Gaz. 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or bungling
it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the
respondent court which denied the probate of tile will, the motion for
reconsideration of the denial of probate, and the motion for appointment
of a special administrator are set aside. The respondent court is ordered
to allow the probate of the wig and to conduct further proceedings in
accordance with this decision. No pronouncement on costs.
SO ORDERED.
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the
Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,  personally read the final draft of the codicil. Instead, it was private
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA.
ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO,
Associate Justices, Intermediate Appellate Court, First Division
(Civil Cases), and BAYANI MA. RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986  of the First
1
Civil Cases Division of the then Intermediate Appellate Court, now Court
of Appeals, which affirmed the Order dated 27 June 1983  of the Regional
2
Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament  with codicil  of the late Brigido Alvarado.
3 4
On 5 November 1977, the 79-year old Brigido Alvarado executed a
notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate
son (petitioner) and expressly revoked a previously executed holographic
will at the time awaiting probate before Branch 4 of the Regional Trial
Court of sta. Cruz, Laguna.
As testified to by the three 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-paged 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 9 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. As in the case of the notarial will, the testator did not
respondent who read it aloud in his presence and in the presence of the
three 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 on 3 January 1979 by private respondent as executor
with the Court of First Instance, now Regional Trial Court, of Siniloan,
Laguna. Petitioner, in turn, filed an Opposition on the following grounds:
5
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 the oppositor (petitioner) failed to substantiate the grounds relied
upon in the Opposition, a Probate Order was issued on 27 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.
On 11 April 1986, the Court of Appeals rendered the decision under
review with the following findings: that Brigido Alvarado was not blind at
the time his last will and codicil were executed; that assuming his
blindness, the reading requirement of Art. 808 was substantially complied
with when both documents were read aloud to the testator with each of
the three instrumental witnesses and the notary public following the
reading with their respective copies of the instruments. The appellate
court then concluded that although Art. 808 was not followed to the letter,
there was substantial compliance since its purpose of making known to
the testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind
for purpose of Art, 808 at the time his "Huling Habilin" and its codicil were
executed? If so, was the double-reading requirement of said article
complied with?
Regarding the first issue, there is no dispute on the following facts:
Brigido Alvarado was not totally blind at the time the will and codicil were
executed. However, his vision on both eyes was only of "counting fingers
at three (3) feet" by reason of the glaucoma which he had been suffering
from for several years and even prior to his first consultation with an eye
specialist on  himself (as when he is illiterate), is to make the provisions
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify
Brigido as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to
him twice; once, by one of the subscribing witnesses, and
again, by the notary public before whom the will is
acknowledged.
Petitioner contends that although his father was not totally blind when the
will and codicil were executed, he can be so considered within the scope
of the term as it is used in Art. 808. To support his stand, petitioner
presented before the trial court a medical certificate issued by Dr.
Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine
Eye Research Institute),  the contents of which were interpreted in
6
layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by
private respondent.  Dr. Roasa explained that although the testator could
7
visualize fingers at three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his first
consultation.8
On the other hand, the Court of Appeals, contrary to the medical
testimony, held 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."  Since the testator was still capable of reading at that time, the
9
court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still
capable of reading at the time his will and codicil were prepared, 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
10 11 12
necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez   provides an insight
13
into the scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will
thereof known to him, so that he may be able to object if
they are not in accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators
but also to those who, for one reason or another, are "incapable of
reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading
the final drafts of his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred" vision, there can be
no other course for us but to conclude that Brigido Alvarado comes within
the scope of the term "blind" as it is used in Art. 808. Unless the contents
were read to him, he had no way of ascertaining whether or not the
lawyer who drafted the will and codicil did so confortably with his
instructions. Hence, to consider his will as validly executed and entitled to
probate, it is essential that we ascertain whether Art. 808 had been
complied with.
Article 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-paged will and the five-paged codicil
who read the same aloud to the testator, and read them only once, not
twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance
and that the single reading suffices for purposes of the law. On the other
hand, petitioner maintains that the only valid compliance or compliance to
the letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must
be denied.
This Court has held in a number of occasions that 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. 
14
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.
There is no evidence, and petitioner does not so allege, that the contents
of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, 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. 15
Moreover, it was not only Atty. Rino who read the documents on  intended for his protection was not followed strictly when such
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente
O. 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 four
16
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 (those which he affirmed were in accordance with his
instructions), 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 (Dr. Evidente) and another (Potenciano C. 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 account, may only defeat the testator's will.  17
As a final word to convince petitioner of the propriety of the trial court's
Probate Order and its affirmance by the Court of Appeals, we quote the
following pronouncement in Abangan v. Abangan,   to wit:
18
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws
on the 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 will,
must be disregarded(emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable
terms in his "Huling Habilin" and the codicil attached thereto. We are
unwilling to cast these aside fro the mere reason that a legal requirement
compliance had been rendered unnecessary by the fact that the purpose
of the law, i.e., to make known to the incapacitated testator the contents
of the draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of
respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
Considering the length of time that this case has remained pending, this
decision is immediately executory. Costs against petitioner.
SO ORDERED.
G.R. No. L-45430             April 15, 1939
In the matter of the estate of the deceased Paulina Vasquez Vda. de
Garcia.  one of the daughter of the deceased, wherein she asked to be
TERESA GARCIA, plaintiff-appellant,  appointed special administratrix in order that she might bring an
vs.
LUISA GARCIA, MARIETA GARCIA, and PURIFICACION GARCIA,
and BRAULIO DE VERA, guardian of the minors Antonio, Lourdes
and Ramon, surnamed De Vera, defendants-appellees.
Anastasio R. Teodoro and Andres S. Nicolas for appellant.
Pablo Lorenzo, Delfin Joven and Eulalio Chaves for appellee.
VILLA-REAL, J.:
After Luisa Garcia was appointed special administratrix of the properties
left by the deceased Paulina Vasquez Vda. de Garcia, she filed with the
competent court an inventory thereof on May 13, 1936.
On May 23, 1936, the heir Teresa Garcia objected to said inventory,
taking exception to various items therein.
On June 20, 1936, the court issued the following order:
Without prejudice to the filing of an ordinary action by the heir
Teresa Garcia de Bartolome, the petition to include in the
inventory certain properties of the estate, filed by Teresa Garcia
and others with the conformity of counsel for the administratrix, is
denied.
On July 28, 1936, Teresa Garcia filed a motion asking that she be
appointed special administratrix of the intestate for the sole purpose of
bringing any action which she may believe necessary to recover for the
benefit of the intestate the properties and credits set out in her motion, as
well as other properties which might be discovered from time to time
belonging to the said intestate.
After hearing said motion and the administratrix' opposition thereto, the
Court of First Instance of Manila denied the motion by its order of August
19, 1936.
On motion for reconsideration filed by Teresa Garcia, which was opposed
by the administratrix, the court issued the following order of September
28, 1936:
This is a motion for reconsideration of the order of this Court of
the 19th day of August last, denying the petition of Teresa Garcia,
action for the recovery of certain properties which she claims
belong to the estate and are in the possession of the regular
administratrix and her other sisters.
Before this petition was filed a hearing had been held to
determine the ownership of these properties as a direct result of
Teresa Garcia's objection to the inventory filed by the
administratrix in which, it was alleged, those properties should be
included. Now the same party upon whose complaint that hearing
was conducted repudiates the steps taken by the court on the
ground on the grounds of alleged lack of jurisdiction.
The interrupted proceeding which the motion under consideration
would have set aside was by no means irregular. It is in
accordance with the general practice constantly followed in this
jurisdiction. The jurisdiction to try controversies between heirs of
a deceased person regarding the ownership of properties alleged
to belong to his estate is vested in probate courts. In the last
analysis, the purpose of intestate proceeding is the distribution of
the decedent's estate among the persons entitled to succeed him.
It is in the nature of an action of partition, and in a suit of partition
it is proper that each party be required to bring into the mass
whatever community property he or she may have in his or her
possession. To this end and as a necessary corollary, the
interested parties may introduce proofs relative to the ownership
of the properties in dispute. All the heirs who take part in the
distribution of the decedent's estate are before the court and
subject to the jurisdiction thereof in all matters and incidents
necessary to the complete settlement of such estate, so long as
no interests of third parties are affected.
 The cases relied upon by the movant have no bearing on the
present case. In the cases cited, not only were the persons
alleged to have in their possession properties of the estate
strangers to the intestate, but their appearance had been ordered
under different provisions and for a different purpose. The court
was not aware of the fact that a proceeding under section 709 of
the Code of Civil Procedure is no t to try title to property.
However that may be, the jurisdiction involved here is one over
the person, not over the subject-matter; and it is a well-
established rule that such jurisdiction may be acquired by
consent. A general appearance, let alone going into trial without
objection, has been always held to constitute a waiver of the
party's right to object to the authority of the court over his person.
The administratrix and other heirs have not objected.
The motion for reconsideration is denied. The movant may
however ask, if she cares to do so, that this proceeding be reset
for the continuation of the hearing of her inventory of the
administratrix and the determination of whether the properties in
question belong to the estate and should be included in the said
inventory for disposition according to law.
So ordered.
From the foregoing order Teresa Garcia took this appeal, assigning our
alleged errors committed by the lower Court in its order, which errors boil
down to the proposition of whether or not a court has jurisdiction to hear
and pass upon the exceptions which an heir takes to an inventory of the
properties left by a deceased referring to the inclusion or exclusion of
certain properties and credits.
It is the duty of every administrator, whether special or regular, imposed
by section 668 of the Code of Civil Procedure, to return to the court within
three months after his appointment a true inventory of the real estate and
all the goods, chattels, right, and credits of the deceased which come into
his possession or knowledge, unless he is residuary legatee and has
given the prescribed bond. The court which acquires jurisdiction over the
properties of a deceased person through the filing of the corresponding
proceedings, has supervision and control over the said properties, and
under the said power, it is its inherent duty to see that the inventory
submitted by the administrator appointed by it contains all the properties,
rights and credits which the law requires the administrator to set out in his
inventory. In compliance with this duty the court has also inherent power
to determine what properties, rights and credits of the deceased should
be included in or excluded from the inventory. Should an heir or person
interested in the properties of a deceased persons duly call the court's
attention to the fact that certain properties, rights or credits have been left
out in the inventory, it is likewise the court's duty to hear the
observations, with power to determine if such observations should be
attended to or not and if the properties referred to therein belong prima
facie to the intestate, but no such determination is final and ultimate in
nature as to the ownership of the said properties (23 C.J., p. 1163, par.
381).
The lower court, therefore, had jurisdiction to hear the opposition of the
heir Teresa Garcia to the inventory filed by the special administratrix
Luisa Garcia, as well as the observations made by the former as to
certain properties and credits, and to determine for purposes of the
inventory alone if they should be included therein or excluded therefrom.
As Teresa Garcia withdrew her opposition after evidence was adduced
tending to show whether or not certain properties belonged to the
intestate and, hence, whether they should be included in the inventory,
alleging that the lower court had no jurisdiction to do so, she cannot be
heard to complain that the court suspended the trial of her opposition.
In the view of the foregoing, we are of the opinion and so hold, that a
court takes cognizance of testate on intestate proceedings has power
and jurisdiction to determine whether or not the properties included
therein or excluded therefrom belong prima facie to the deceased,
although such a determination is not final or ultimate in nature, and
without prejudice to the right of the interested parties, in a proper action,
to raise the question bearing on the ownership or existence of the right or
credit.
Wherefore, the appealed order is affirmed, reserving to Teresa Garcia the
right to ask for the reopening of the hearing of her opposition to the
inventory, as well as to ask for the appointment of a special administratrix
in accordance with law, with the costs to the appellant. So ordered.
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner, 
vs.
HONORABLE COURT OF APPEALS and LUTGARDA
SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First
Division,  promulgated on May 4, 1973 in CA G.R. No. 36523-R which
1
reversed the decision of the Court of First Instance of Rizal dated
December 15, 1964 and allowed the probate of the last will and
testament of the deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda
Santiago filed a petition with the Court of First Instance of Rizal docketed
as Special Proceedings No. 3617, for the probate of a will alleged to have
been executed by the deceased Isabel Gabriel and designating therein
petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died
as a widow and without issue in the municipality of Navotas, province of
Rizal her place of residence, on June 7, 1961 at the age of eighty-five
(85), having been born in 1876. It is likewise not controverted that herein
private respondent Lutgarda Santiago and petitioner Rizalina Gabriel
Gonzales are nieces of the deceased, and that private respondent, with
her husband and children, lived with the deceased at the latters
residence prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in
Tagalog, appears to have been executed in Manila on the 15th day of
April, 1961, or barely two (2) months prior to the death of Isabel Gabriel.
It consists of five (5) pages, including the pages whereon the attestation
clause and the acknowledgment of the notary public were written. The
signatures of the deceased Isabel Gabriel appear at the end of the will on
page four and at the left margin of all the pages. The attestation clause,
which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang
aming mga tinitirahan ay nakasulat sa gawing kanan at
kahilira ng aming mga pangalan sa ibaba nito, ay
pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa
amin ni Isabel Gabriel na ang kasulatang ito na binubuo
ng Limang Dahon (Five Pages) pati na ang dahong ito, na
siya niyang TESTAMENTO AT HULING HABILIN,
ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing
testadora na si Isabel Gabriel ang nasabing testamento
sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon
(page four) at nasa itaas ng patunay naming ito, at sa
kaliwang panig ng lahat at bawat dahon (and on the left
hand margin of each and every page), sa harap ng lahat
at bawat isa sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing testadora, at sa harap ng
lahat at bawat isa sa amin, sa ilalim ng patunay ng mga
saksi at sa kaliwang panig ng lahat at bawa't dahon ng
testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the
signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R.
Gimpaya, and opposite the same, under the heading "Tirahan", are their
respective places of residence, 961 Highway 54, Philamlife, for Miss
Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their
signatures also appear on the left margin of all the other pages. The WW
is paged by typewritten words as follows: "Unang Dahon" and underneath
"(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc.,
appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the
Catholic Cemetery of Navotas, Rizal in accordance with the rites of the
Roman Catholic Church, all expenses to be paid from her estate; that all
her obligations, if any, be paid; that legacies in specified amounts be
given to her sister, Praxides Gabriel Vda. de Santiago, her brother
Santiago Gabriel, and her nephews and nieces, Benjamin, Salud,
Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel,
and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an
surnamed Santiago. To herein private respondent Lutgarda Santiago,
who was described in the will by the testatrix as "aking mahal na
pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang
tunay na anak" and named as universal heir and executor, were
bequeathed all properties and estate, real or personal already acquired,
or to be acquired, in her testatrix name, after satisfying the expenses,
debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner,
assailing the document purporting to be the will of the deceased on the
following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as
required by law;
3. that, at the time of the alleged execution of the
purported wilt the decedent lacked testamentary capacity
due to old age and sickness; and in the second
alternative
4. That the purported WW was procured through undue
and improper pressure and influence on the part of the
principal beneficiary, and/or of some other person for her
benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1,
1962. After trial, the court a quo rendered judgment, the summary and
dispositive portions of which read:
Passing in summary upon the grounds advanced by the
oppositor, this Court finds:
1. That there is no iota of evidence to support the
contentio that the purported will of the deceased was
procured through undue and improper pressure and
influence on the part of the petitioner, or of some other
person for her benefit;
2. That there is insufficient evidence to sustain the
contention that at the time of the alleged execution of the
purported will, the deceased lacked testamentary capacity
due to old age and sickness;
3. That sufficient and abundant evidence warrants
conclusively the fact that the purported will of the
deceased was not executed and attested as required by
law;
4. That the evidence is likewise conclusive that the
document presented for probate, Exhibit 'F' is not the
purported win allegedly dictated by the deceased,
executed and signed by her, and attested by her three
attesting witnesses on April 15, 1961.
WHEREFORE, Exhibit "F", the document presented for
probate as the last wig and testament of the deceased
Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to
respondent Court, hence, the only issue decided on appeal was whether
or not the will in question was executed and attested as required by law.
The Court of Appeals, upon consideration of the evidence adduced by
both parties, rendered the decision now under review, holding that the will
in question was signed and executed by the deceased Isabel Gabriel on
April 15, 1961 in the presence of the three attesting witnesses, Matilde
Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the
document in the presence of the deceased and of each other as required
by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration   of the
3
aforesaid decision and such motion was opposed   by petitioner-appellant
4
Lutgarda Santiago. Thereafter. parties submitted their respective
Memoranda,  and on August 28, 1973, respondent Court, Former Special
5
First Division, by Resolution   denied the motion for reconsideration
6
stating that:
The oppositor-appellee contends that the preponderance
of evidence shows that the supposed last wig and
testament of Isabel Gabriel was not executed in
accordance with law because the same was signed on
several occasions, that the testatrix did not sign the will in
the presence of all the instrumental witnesses did not sign
the will in the presence of each other.
The resolution of the factual issue raised in the motion for
reconsideration hinges on the appreciation of the
evidence. We have carefully re-examined the oral and
documentary evidence of record, There is no reason to
alter the findings of fact in the decision of this Court
sought to be set aside.  7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales
contends that respondent Court abused its discretion and/or acted
without or in excess of its jurisdiction in reverssing the findings of fact and
conclusions of the trial court. The Court, after deliberating on the petition
but without giving due course resolved, in the Resolution dated Oct. 11,
1973 to require the respondents to comment thereon, which comment
was filed on Nov. 14, 1973. Upon consideration of the allegations, the
issues raised and the arguments adduced in the petition, as well as the
Comment   of private respondent thereon, We denied the petition by
8
Resolution on November 26, 1973,   the question raised being factual and
9
for insufficient showing that the findings of fact by respondent Court were
unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes
fried a Motion for Reconsideration   which private respondent answered
10
by way of her Comment or Opposition   filed on January 15, 1974. A
11
Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We
resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document,
Exhibit "F" was executed and attested as required by law when there was
absolutely no proof that the three instrumental witnesses were credible
witness
II. The Court of Appeals erred in reversing the finding of the lower court
that the preparation and execution of the win Exhibit "F", was unexpected
and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not
previously furnished with the names and residence certificates of the
witnesses as to enable him to type such data into the document Exhibit
"F".
IV. The Court of Appeals erred in holding that the fact that the three
typewritten lines under the typewritten words "Pangalan" and "Tinitirahan"
were left blank shows beyond cavil that the three attesting witnesses
were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it
was incredible that Isabel Gabriel could have dictated the wilt Exhibit "F ,
without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court
that Matilde Orobia was not physically present when the Will Exhibit "F"
was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel
and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue
importance to the picture takings as proof that the win was improperly
executed.
VIII. The Court of Appeals erred in holding that the grave contradictions,
evasions, and misrepresentations of witnesses (subscribing and notary)
presented by the petitioner had been explained away, and that the trial
court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or
has so far departed from the accepted and usual course of judicial
proceedings, as to call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court
and admitting to probate Exhibit "F", the alleged last will and testament of
the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are
substantially factual in character and content. Hence, at the very outset,
We must again state the oft-repeated and well-established rule that in this
jurisdiction, the factual findings of the Court of Appeals are not
reviewable, the same being binding and conclusive on this Court. This
rule has been stated and reiterated in a long line of cases enumerated
in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737,
743)   and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA
12
393),   and in the more recent cases of Baptisia vs. Carillo and
13
CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs.
Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83,
88). In the case of Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by
the then Justice Recto, it has been well-settled that the jurisdiction of tills
Court in cases brought to us from the Court of Appeals is limited to
reviewing and revising the errors of law imputed to it, its findings of fact
being conclusive. More specifically, in a decision exactly a month later,
this Court, speaking through the then Justice Laurel, it was held that the
same principle is applicable, even if the Court of Appeals was in
disagreement with the lower court as to the weight of the evidence with a
consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when
supported by substantive evidence are not reviewable on appeal by
certiorari. Said findings of the appellate court are final and cannot be
disturbed by Us particularly because its premises are borne out by the
record or based upon substantial evidence and what is more, when such
findings are correct. Assignments of errors involving factual issues cannot
be ventilated in a review of the decision of the Court of Appeals because
only legal questions may be raised. The Supreme Court is not at liberty to
alter or modify the facts as set forth in the decision of the Court of
Appeals sought to be reversed. Where the findings of the Court of
Appeals are contrary to those of the trial court, a minute scrutiny by the
Supreme Court is in order, and resort to duly-proven evidence becomes
necessary. The general rule We have thus stated above is not without
some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now
proceed to consider petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of
Appeals erred in holding that the document, Exhibit "F", was executed
and attested as required by law when there was absolutely no proof that
the three instrumental witnesses were credible witnesses. She argues
that the require. ment in Article 806, Civil Code, that the witnesses must
be credible is an absolute requirement which must be complied with
before an alleged last will and testament may be admitted to probate and
that to be a credible witness, there must be evidence on record that the
witness has a good standing in his community, or that he is honest and
upright, or reputed to be trustworthy and reliable. According to petitioner,
unless the qualifications of the witness are first established, his testimony
may not be favorably considered. Petitioner contends that the term
"credible" is not synonymous with "competent" for a witness may be
competent under Article 820 and 821 of the Civil Code and still not be
credible as required by Article 805 of the same Code. It is further urged
that the term "credible" as used in the Civil Code should receive the same
settled and well- known meaning it has under the Naturalization Law, the
latter being a kindred legislation with the Civil Code provisions on wigs
with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the
Civil Code provides the qualifications of a witness to the execution of wills
while Article 821 sets forth the disqualification from being a witness to a
win. These Articles state:
Art. 820. Any person of sound mind and of the age of
eighteen years or more, and not blind, deaf or dumb, and
able to read and write, may be a witness to the execution
of a will mentioned in article 806 of this Code. "Art. 821.
The following are disqualified from being witnesses to a
will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify
initially or at any time during the trial as to his good standing in the
community, his reputation for trustworthythiness and reliableness, his
honesty and uprightness in order that his testimony may be believed and
accepted by the trial court. It is enough that the qualifications enumerated
in Article 820 of the Civil Code are complied with, such that the
soundness of his mind can be shown by or deduced from his answers to
the questions propounded to him, that his age (18 years or more) is
shown from his appearance, testimony , or competently proved
otherwise, as well as the fact that he is not blind, deaf or dumb and that
he is able to read and write to the satisfaction of the Court, and that he
has none of the disqualifications under Article 821 of the Civil Code. We
reject petitioner's contention that it must first be established in the record
the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because
such attributes are presumed of the witness unless the contrary is proved
otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term
"credible" as used in the Civil Code should be given the same meaning it
has under the Naturalization Law where the law is mandatory that the
petition for naturalization must be supported by two character witnesses
who must prove their good standing in the community, reputation for
trustworthiness and reliableness, their honesty and uprightness. The two
witnesses in a petition for naturalization are character witnesses in that
being citizens of the Philippines, they personally know the petitioner to be
a resident of the Philippines for the period of time required by the Act and
a person of good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications necessary to become a
citizen of the Philippines and is not in any way disqualified under the
provisions of the Naturalization Law (Section 7, Commonwealth Act No.
473 as amended).
In probate proceedings, the instrumental witnesses are not character
witnesses for they merely attest the execution of a will or testament and
affirm the formalities attendant to said execution. And We agree with the
respondent that the rulings laid down in the cases cited by petitioner
concerning character witnesses in naturalization proceedings are not
applicable to instrumental witnesses to wills executed under the Civil
Code of the Philippines.
In the case at bar, the finding that each and everyone of the three
instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and
Maria Gimpaya, are competent and credible is satisfactorily supported by
the evidence as found by the respondent Court of Appeals, which
findings of fact this Tribunal is bound to accept and rely upon. Moreover,
petitioner has not pointed to any disqualification of any of the said
witnesses, much less has it been shown that anyone of them is below 18
years of age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other
than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in
his presence, and by his express direction, and attested and subscribed
by three or more credible witnesses in the presence of the testator and of
one another, While the petitioner submits that Article 820 and 821 of the
New Civil Code speak of the competency of a witness due to his
qualifications under the first Article and none of the disqualifications
under the second Article, whereas Article 805 requires the attestation of
three or more credible witnesses, petitioner concludes that the
term credible requires something more than just being competent and,
therefore, a witness in addition to being competent under Articles 820
and 821 must also be a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a
witness are not synonymous terms and one may be a competent witness
and yet not a credible one. She exacerbates that there is no evidence on
record to show that the instrumental witnesses are credible in
themselves, that is, that they are of good standing in the community since
one was a family driver by profession and the second the wife of the
driver, a housekeeper. It is true that Celso Gimpaya was the driver of the
testatrix and his wife Maria Gimpaya, merely a housekeeper, and that
Matilde Orobia was a piano teacher to a grandchild of the testatrix But the
relation of employer and employee much less the humble or financial
position of a person do not disqualify him to be a competent testamentary
witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil.
344; Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more
credible witnesses mentioned in Article 805 of the Civil Code are those
mentioned in Article 820 of the same Code, this being obvious from that
portion of Article 820 which says "may be Q witness to the execution of a
will mentioned in Article 805 of this Code," and cites authorities that the
word "credible" insofar as witnesses to a will are concerned simply
means " competent." Thus, in the case of Suntay vs. Suntay, 95 Phil.
500, the Supreme Court held that "Granting that a will was duly executed
and that it was in existence at the time of, and not revoked before, the
death of the testator, still the provisions of the lost wig must be clearly
and distinctly proved by at least two credible witnesses. 'Credible
witnesses' mean competent witnesses and not those who testify to facts
from or upon hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the
Supreme Court held that "Section 620 of the same Code of Civil
Procedure provides that any person of sound mind, and of the age of
eighteen years or more, and not blind, deaf, or dumb and able to read
and write, may be a witness to the execution of a will. This same
provision is reproduced in our New Civil Code of 1950, under Art. 820.
The relation of employer and employee, or being a relative to the
beneficiary in a win, does not disqualify one to be a witness to a will. The
main qualification of a witness in the attestation of wills, if other
qualifications as to age, mental capacity and literacy are present, is that
said witness must be credible, that is to say, his testimony may be
entitled to credence. There is a long line of authorities on this point, a few
of which we may cite:
A 'credible witness is one who is not is not to testify by
mental incapacity, crime, or other cause. Historical Soc of
Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134
Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a
will means a 'competent witness.' Appeal of Clark, 95 A.
517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).
 Expression 'credible witness' in relation to attestation of
wins means 'competent witness that is, one competent
under the law to testify to fact of execution of will.
Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank
of Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p.
342)
The term 'credible', used in the statute of wills requiring
that a will shall be attested by two credible witnesses
means competent; witnesses who, at the time of attesting
the will, are legally competent to testify, in a court of
justice, to the facts attested by subscribing the will, the
competency being determined as of the date of the
execution of the will and not of the timr it is offered for
probate, Smith vs. Goodell 101 N.E. 255, 256, 258 111.
145. (Ibid.)
Credible witnesses as used in the statute relating to wills,
means competent witnesses — that is, such persons as
are not legally disqualified from testifying in courts of
justice, by reason of mental incapacity, interest, or the
commission of crimes, or other cause excluding them
from testifying generally, or rendering them incompetent
in respect of the particular subject matter or in the
particular suit. Hill vs. Chicago Title & Trust co 152 N.E.
545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental
witness to a will is determined by the statute, that is Art. 820 and 821,
Civil Code, whereas his credibility depends On the appreciation of his
testimony and arises from the belief and conclusion of the Court that said
witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El
Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the
Supreme Court held and ruled that: "Competency as a witness is one
thing, and it is another to be a credible witness, so credible that the Court
must accept what he says. Trial courts may allow a person to testify as a
witness upon a given matter because he is competent, but may thereafter
decide whether to believe or not to believe his testimony." In fine, We
state the rule that the instrumental witnesses in Order to be competent
must be shown to have the qualifications under Article 820 of the Civil
Code and none of the disqualifications under Article 821 and for their
testimony to be credible, that is worthy of belief and entitled to credence,
it is not mandatory that evidence be first established on record that the
witnesses have a good standing in the community or that they are honest
and upright or reputed to be trustworthy and reliable, for a person is
presumed to be such unless the contrary is established otherwise. In
other words, the instrumental witnesses must be competent and their
testimonies must be credible before the court allows the probate of the
will they have attested. We, therefore, reject petitioner's position that it
was fatal for respondent not to have introduced prior and independent
proof of the fact that the witnesses were "credible witnesses that is, that
they have a good standing in the community and reputed to be
trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth
assignments of errors, petitioner disputes the findings of fact of the
respondent court in finding that the preparation and execution of the will
was expected and not coincidental, in finding that Atty. Paraiso was not
previously furnished with the names and residence certificates of the
witnesses as to enable him to type such data into the document Exhibit
"F", in holding that the fact that the three typewritten lines under the
typewritten words "pangalan" and "tinitirahan" were left blank shows
beyond cavil that the three attesting witnesses were all present in the
same occasion, in holding credible that Isabel Gabriel could have dictated
the will without note or document to Atty. Paraiso, in holding that Matilde
Orobia was physically present when the will was signed on April 15, 1961
by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya
and Maria Gimpaya, in holding that the trial court gave undue importance
to the picture takings as proof that the will was improperly executed, and
in holding that the grave contradictions, evasions and misrepresentations
of the witnesses (subscribing and notary) presented by the petitioner had
been explained away.
Since the above errors are factual We must repeat what We have
previously laid down that the findings of fact of the appellate court are
binding and controlling which We cannot review, subject to certain
exceptions which We win consider and discuss hereinafter. We are
convinced that the appellate court's findings are sufficiently justified and
supported by the evidence on record. Thus, the alleged unnaturalness
characterizing the trip of the testatrix to the office of Atty. Paraiso and
bringing all the witnesses without previous appointment for the
preparation and execution of the win and that it was coincidental that
Atty. Paraiso was available at the moment impugns the finding of the
Court of Appeals that although Atty. Paraiso admitted the visit of Isabel
Gabriel and of her companions to his office on April 15, 1961 was
unexpected as there was no prior appointment with him, but he explained
that he was available for any business transaction on that day and that
Isabel Gabriel had earlier requested him to help her prepare her will. The
finding of the appellate court is amply based on the testimony of Celso
Gimpaya that he was not only informed on the morning of the day that he
witnessed the will but that it was the third time when Isabel Gabriel told
him that he was going to witness the making of her will, as well as the
testimony of Maria Gimpaya that she was called by her husband Celso
Gimpaya to proceed to Isabel Gabriel's house which was nearby and
from said house, they left in a car to the lawyer's office, which testimonies
are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso
Gimpaya and his wife Maria Gimpaya obtained residence certificates a
few days before Exhibit "F" was executed. Celso Gimpaya's residence
certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961
while Maria Gimpaya's residence certificate No. A-5114974 was issued
also at Navotas, Rizal on April 14, 1961. The respondent Court correctly
observed that there was nothing surprising in these facts and that the
securing of these residence certificates two days and one day,
respectively, before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses were earlier
notified that they would be witnesses to the execution of Isabel Gabriel's
will.
We also agree with the respondent Court's conclusion that the excursion
to the office of Atty. Paraiso was planned by the deceased, which
conclusion was correctly drawn from the testimony of the Gimpaya
spouses that they started from the Navotas residence of the deceased
with a photographer and Isabel Gabriel herself, then they proceeded by
car to Matilde Orobia's house in Philamlife, Quezon City to fetch her and
from there, all the three witnesses (the Gimpayas and Orobia) passed by
a place where Isabel Gabriel stayed for about ten to fifteen minutes at the
clinic of Dr. Chikiamco before they proceeded to Atty. Cipriano Paraiso's
office.
It is also evident from the records, as testified to by Atty. Paraiso, that
previous to the day that. the will was executed on April 15, 1961, Isabel
Gabriel had requested him to help her in the execution of her will and that
he told her that if she really wanted to execute her will, she should bring
with her at least the Mayor of Navotas, Rizal and a Councilor to be her
witnesses and that he (Atty. Paraiso) wanted a medical certificate from a
physician notwithstanding the fact that he believed her to be of sound and
disposition mind. From this evidence, the appellate court rightly
concluded, thus: "It is, therefore, clear that the presence of Isabel Gabriel
and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya
including the photographer in the law office of Atty. Paraiso was not
coincidental as their gathering was pre-arranged by Isabel Gabriel
herself."
As to the appellate court's finding that Atty. Paraiso was not previously
furnished with the names and residence certificates of the witnesses as
to enable him to type such data into the document Exhibit ' L which the
petitioner assails as contradictory and irreconcilable with the statement of
the Court that Atty. Paraiso was handed a list (containing the names of
the witnesses and their respective residence certificates) immediately
upon their arrival in the law office by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who testified that it was only on
said occasion that he received such list from Isabel Gabriel, We cannot
agree with petitioner's contention. We find no contradiction for the,
respondent Court held that on the occasion of the will making on April 15,
1961, the list was given immediately to Atty. Paraiso and that no such list
was given the lawyer in any previous occasion or date prior to April 15,
1961.
But whether Atty. Paraiso was previously furnished with the names and
residence certificates of the witnesses on a prior occasion or on the very
occasion and date in April 15, 1961 when the will was executed, is of no
moment for such data appear in the notarial acknowledgment of Notary
Public Cipriano Paraiso, subscribed and sworn to by the witnesses on
April 15, 1961 following the attestation clause duly executed and signed
on the same occasion, April 15, 1961. And since Exhibit "F" is a notarial
will duly acknowledged by the testatrix and the witnesses before a notary
public, the same is a public document executed and attested through the
intervention of the notary public and as such public document is evidence
of the facts in clear, unequivocal manner therein expressed. It has in its
favor the presumption of regularity. To contradict all these, there must be
evidence that is clear, convincing and more than merely preponderant.
(Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed
by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact
that the three typewritten lines under the typewritten words "pangalan '
and "tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion merits Our
approval because tills conclusion is supported and borne out by the
evidence found by the appellate court, thus: "On page 5 of Exhibit "F",
beneath the typewritten words "names", "Res. Tax Cert. date issued" and
place issued the only name of Isabel Gabriel with Residence Tax
certificate No. A-5113274 issued on February 24, 1961 at Navotas Rizal
appears to be in typewritten form while the names, residence tax
certificate numbers, dates and places of issuance of said certificates
pertaining to the three (3) witnesses were personally handwritten by Atty.
Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be
made to close relatives; and the seventh was the appointment of the
appellant Santiago as executrix of the will without bond. The technical
description of the properties in paragraph 5 of Exhibit F was not given
and the numbers of the certificates of title were only supplied by Atty.
Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the
properties disposed and the docket number of a special proceeding are
indicated which Atty. Paraiso candidly admitted were supplied by him,
whereupon petitioner contends that it was incredible that Isabel Gabriel
could have dictated the will Exhibit "F" without any note or document to
Atty. Paraiso, considering that Isabel Gabriel was an old and sickly
woman more than eighty-one years old and had been suffering from a
brain injury caused by two severe blows at her head and died of terminal
cancer a few weeks after the execution of Exhibit "F". While we can rule
that this is a finding of fact which is within the competency of the
respondent appellate court in determining the testamentary capacity of
the testatrix and is, therefore, beyond Our power to revise and review,
We nevertheless hold that the conclusion reached by the Court of
Appeals that the testatrix dictated her will without any note or
memorandum appears to be fully supported by the following facts or
evidence appearing on record. Thus, Isabel Gabriel, despite her age, was
particularly active in her business affairs as she actively managed the
affairs of the movie business ISABELITA Theater, paying the aparatistas
herself until June 4, 1961, 3 days before her death. She was the widow of
the late Eligio Naval, former Governor of Rizal Province and acted as
coadministratrix in the Intestate Estate of her deceased husband Eligio
Naval. The text of the win was in Tagalog, a dialect known and
understood by her and in the light of all the circumstances, We agree with
the respondent Court that the testatrix dictated her will without any note
or memorandum, a fact unanimously testified to by the three attesting
witnesses and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence,
both testimonial and documentary is, according to the respondent court,
overwhelming that Matilde Orobia was physically present when the will
was signed on April 15, 1961 by the testatrix and the other two witnesses,
Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate
court is very clear, thus: "On the contrary, the record is replete with proof
that Matilde Orobia was physically present when the will was signed by
Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso
Gimpaya and Maria Gimpaya. The trial court's conclusion that Orobia's
admission that she gave piano lessons to the child of the appellant on
Wednesdays and Saturdays and that April 15, 1961 happened to be a
Saturday for which reason Orobia could not have been present to witness
the will on that — day is purely conjectural. Witness Orobia did not admit
having given piano lessons to the appellant's child every Wednesday and
Saturday without fail. It is highly probable that even if April 15, 1961 were
a Saturday, she gave no piano lessons on that day for which reason she
could have witnessed the execution of the will. Orobia spoke of occasions
when she missed giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso was in the
morning of April 15, 1961 and there was nothing to preclude her from
giving piano lessons on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya that Matilde was present on April 15, 1961 and that she signed
the attestation clause to the will and on the left-hand margin of each of
the pages of the will, the documentary evidence which is the will itself, the
attestation clause and the notarial acknowledgment overwhelmingly and
convincingly prove such fact that Matilde Orobia was present on that day
of April 15, 1961 and that she witnessed the will by signing her name
thereon and acknowledged the same before the notary public, Atty.
Cipriano P. Paraiso. The attestation clause which Matilde Orobia signed
is the best evidence as to the date of signing because it preserves in
permanent form a recital of all the material facts attending the execution
of the will. This is the very purpose of the attestation clause which is
made for the purpose of preserving in permanent form a record of the
facts attending the execution of the will, so that in case of failure in the
memory of the subscribing witnesses, or other casualty they may still be
proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68
Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of
Appeals in holding that the trial court gave undue importance to the
picture-takings as proof that the win was improperly executed, We agree
with the reasoning of the respondent court that: "Matilde Orobia's
Identification of the photographer as "Cesar Mendoza", contrary to what
the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso
said that the photographer was Benjamin Cifra, Jr., is at worst a minor
mistake attributable to lapse of time. The law does not require a
photographer for the execution and attestation of the will. The fact that
Miss Orobia mistakenly Identified the photographer as Cesar Mendoza
scarcely detracts from her testimony that she was present when the will
was signed because what matters here is not the photographer but the
photograph taken which clearly portrays Matilde Orobia herself, her co-
witnesses Celso Gimpaya. " Further, the respondent Court correctly held:
"The trial court gave undue importance to the picture takings, jumping
therefrom to the conclusion that the will was improperly executed. The
evidence however, heavily points to only one occasion of the execution of
the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and
positive when they spoke of this occasion. Hence, their Identification of
some photographs wherein they all appeared along with Isabel Gabriel
and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second
picture-taking was disclosed at the cross examination of Celso Gimpaya.
But this was explained by Atty. Paraiso as a reenactment of the first
incident upon the insistence of Isabel Gabriel. Such reenactment where
Matilde Orobia was admittedly no longer present was wholly unnecessary
if not pointless. What was important was that the will was duly executed
and witnessed on the first occasion on April 15, 1961 , " and We agree
with the Court's rationalization in conformity with logic, law and
jurisprudence which do not require picture-taking as one of the legal
requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and
misrepresentations of witnesses in their respective testimonies before the
trial court. On the other hand, the respondent Court of Appeals held that
said contradictions, evasions and misrepresentations had been explained
away. Such discrepancies as in the description of the typewriter used by
Atty. Paraiso which he described as "elite" which to him meant big letters
which are of the type in which the will was typewritten but which was
Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in
mentioning the name of the photographer by Matilde Orobia to be Cesar
Mendoza when actually it was Benjamin Cifra, Jr.— these are indeed
unimportant details which could have been affected by the lapse of time
and the treachery of human memory such that by themselves would not
alter the probative value of their testimonies on the true execution of the
will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected
that the testimony of every person win be Identical and coinciding with
each other with regard to details of an incident and that witnesses are not
expected to remember all details. Human experience teach us "that
contradictions of witnesses generally occur in the details of certain
incidents, after a long series of questionings, and far from being an
evidence of falsehood constitute a demonstration of good faith. In as
much as not all those who witness an incident are impressed in like
manner, it is but natural that in relating their impressions, they should not
agree in the minor details; hence the contradictions in their testimony."
(Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should
not have been disturbed by the respondent appellate court because the
trial court was in a better position to weigh and evaluate the evidence
presented in the course of the trial. As a general rule, petitioner is correct
but it is subject to well-established exceptions. The right of the Court of
Appeals to review, alter and reverse the findings of the trial court where
the appellate court, in reviewing the evidence has found that facts and
circumstances of weight and influence have been ignored and overlooked
and the significance of which have been misinterpreted by the trial court,
cannot be disputed. Findings of facts made by trial courts particularly
when they are based on conflicting evidence whose evaluation hinges on
questions of credibility of contending witnesses hes peculiarly within the
province of trial courts and generally, the appellate court should not
interfere with the same. In the instant case, however, the Court of
Appeals found that the trial court had overlooked and misinterpreted the
facts and circumstances established in the record. Whereas the appellate
court said that "Nothing in the record supports the trial court's unbelief
that Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso;" that the trial court's conclusion that Matilde Orobia could not
have witnessed anybody signing the alleged will or that she could not
have witnessed Celso Gimpaya and Maria Gimpaya sign the same or
that she witnessed only the deceased signing it, is a conclusion based
not on facts but on inferences; that the trial court gave undue importance
to the picture-takings, jumping therefrom to the conclusion that the will
was improperly executed and that there is nothing in the entire record to
support the conclusion of the court a quo that the will signing occasion
was a mere coincidence and that Isabel Gabriel made an appointment
only with Matilde Orobia to witness the signing of her will, then it
becomes the duty of the appellate court to reverse findings of fact of the
trial court in the exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule
that the judgment of the Court of Appeals is conclusive as to the facts
and cannot be reviewed by the Supreme Court. Again We agree with the
petitioner that among the exceptions are: (1) when the conclusion is a
finding grounded entirely on speculations, surmises or conjectures; (2)
when the inference is manifestly mistaken, absurd or impossible; (3)
when there is a grave abuse of discretion; (4) when the presence of each
other as required by law. " Specifically, We affirm that on April 15, 1961
the testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya
and his wife Maria Gimpaya, and a photographer proceeded in a car to
the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in
the morning of that day; that on the way, Isabel Gabriel obtained a
medical certificate from one Dr. Chikiamko which she gave to Atty.
Paraiso upon arriving at the latter's office and told the lawyer that she
wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to
dictate what she wanted to be written in the will and the attorney wrote
down the dictation of Isabel Gabriel in Tagalog, a language known to and
spoken by her; that Atty. Paraiso read back to her what he wrote as
dictated and she affirmed their correctness; the lawyer then typed the will
and after finishing the document, he read it to her and she told him that it
was alright; that thereafter, Isabel Gabriel signed her name at the end of
the will in the presence of the three witnesses Matilde Orobia, Celso
Gimpaya and Maria Gimpaya and also at the left-hand margin of each
and every page of the document in the presence also of the said three
witnesses; that thereafter Matilde Orobia attested the will by signing her
name at the end of the attestation clause and at the left-hand margin of
pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel
and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then,
Celso Gimpaya signed also the will at the bottom of the attestation clause
and at the left-hand margin of the other pages of the document in the
presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that
Maria Gimpaya followed suit, signing her name at the foot of the
attestation clause and at the left-hand margin of every page in the
presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that
thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV,
Series of 1961, in his Notarial Register. On the occasion of the execution
and attestation of the will, a photographer took pictures, one Exhibit "G",
depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya,
Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing
of the will, and another, Exhibit "H", showing Matilde Orobia signing
testimony that he had earlier advised Isabel Gabriel to bring with her at
least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for
he did not know beforehand the Identities of the three attesting witnesses
until the latter showed up at his law office with Isabel Gabriel on April 15,
1961. Atty. Paraiso's claim which was not controverted that he wrote
down in his own hand the date appearing on page 5 of Exhibit "F"
dissipates any lingering doubt that he prepared and ratified the will on the
date in question."
It is also a factual finding of the Court of Appeals in holding that it was
credible that Isabel Gabriel could have dictated the will, Exhibit "F",
without any note or document to Atty. Paraiso as against the contention
of petitioner that it was incredible. This ruling of the respondent court is
fully supported by the evidence on record as stated in the decision under
review, thus: "Nothing in the record supports the trial court's unbelief that
Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso. On the contrary, all the three attesting witnesses uniformly
testified that Isabel Gabriel dictated her will to Atty. Paraiso and that other
than the piece of paper that she handed to said lawyer she had no note
or document. This fact jibes with the evidence — which the trial court
itself believed was unshaken — that Isabel Gabriel was of sound
disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated
but quite simple. The first was Isabel Gabriel's wish to be interred
according to Catholic rites the second was a general directive to pay her
debts if any; the third provided for P1,000.00 for her sister Praxides
Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel;
the fourth was a listing of her 13 nephews and nieces including oppositor-
appellee Rizalina Gabriel and the amount for each legatee the fifth was
the institution of the petitioner-appellant, Lutgarda Santiago as the
principal heir mentioning in general terms seven (7) types of properties;
the sixth disposed of the remainder of her estate which she willed in favor
of appellant Lutgarda Santiago but prohibiting the sale of such properties
to anyone except in extreme situations in which judgment is based on a
misapprehension of facts; (5) when the findings of fact are conflicting, (6)
when the Court of Appeals, in making its findings, went beyond the
issues of the case and the same is contrary to the admissions of both
appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct.
31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9,
1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does
not fall within any of the exceptions enumerated above. We likewise hold
that the findings of fact of the respondent appellate court are fully
supported by the evidence on record. The conclusions are fully sustained
by substantial evidence. We find no abuse of discretion and We discern
no misapprehension of facts. The respondent Court's findings of fact are
not conflicting. Hence, the well-established rule that the decision of the
Court of Appeals and its findings of fact are binding and conclusive and
should not be disturbed by this Tribunal and it must be applied in the
case at bar in its full force and effect, without qualification or reservation.
The above holding simply synthesize the resolutions we have heretofore
made in respect ' to petitioner's previous assignments of error and to
which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected
by Us as We find the respondent Court acted properly and correctly and
has not departed from the accepted and usual course of judicial
proceedings as to call for the exercise of the power of supervision by the
Supreme Court, and as We find that the Court of Appeals did not err in
reversing the decision of the trial court and admitting to probate Exhibit
"F", the last will and testament of the deceased Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation
and evaluation of the evidence on record is unassailable that: "From the
welter of evidence presented, we are convinced that the will in question
was executed on April 15, 1961 in the presence of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya signing and witnessing the same in the the
will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya
sitting around the table. Atty. Paraiso, after finishing the notarial act, then
delivered the original to Isabel Gabriel and retained the other copies for
his file and notarial register. A few days following the signing of the will,
Isabel Gabriel, Celso Gimpaya and another photographer arrived at the
office of Atty. Paraiso and told the lawyer that she wanted another picture
taken because the first picture did not turn out good. The lawyer told her
that this cannot be done because the will was already signed but Isabel
Gabriel insisted that a picture be taken, so a simulated signing was
performed during which incident Matilde Orobia was not present.

Petitioner's exacerbation centers on the supposed incredibility of the

testimonies of the witnesses for the proponent of the will, their alleged
evasions, inconsistencies and contradictions. But in the case at bar, the
three instrumental witnesses who constitute the best evidence of the will
making have testified in favor of the probate of the will. So has the lawyer
who prepared it, one learned in the law and long in the practice thereof,
who thereafter notarized it. All of them are disinterested witnesses who
stand to receive no benefit from the testament. The signatures of the
witnesses and the testatrix have been identified on the will and there is
no claim whatsoever and by anyone, much less the petitioner, that they
were not genuine. In the last and final analysis, the herein conflict is
factual and we go back to the rule that the Supreme Court cannot review
and revise the findings of facts of the respondent Court of Appeals.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed

from is hereby AFFIRMED, with costs against the petitioner.

SO ORDERED.