RAMON J.

FERNANDEZ, petitioner-appellant, 
HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-appellants, 
vs.
FERNANDO VERGEL DE DIOS, ET AL., opponents-appellees.
G.R. No. L-21151 February 25, 1924
EN BANC
PONENTE: ROMUALDEZ, J

FACTS: A will was executed by the deceased Antonio Vergel de Dios. Said will, written in
Spanish, was propounded by Ramon J. Fernandez for probate and was contested by
Fernando Vergel de Dios which the trial court subsequently denied. The applicant takes
appeal, assigning error to the action of the lower court in holding the attestation clause
fatally defective and in not finding Act No. 2645 void. The defects attributed to the will by
the contestants are as follows: (a) It was not sufficiently proven that the testator knew the
contents of the will; (b) The testator did not sign all the pages of the will; (c) He did not
request anybody to attest the document as his last will; (d) He did not sign it in the
presence of any witness; (e) The witnesses did not sign it in the presence of the testator, or
of each other, nor with knowledge on the part of the testator that they were signing his
will; (f ) The witnesses did not sign the attestation clause before the death of the testator;
(g) This clause was written after the execution of the dispositive part of the will and was
attached to the will after the death of the testator; (h) The signatures of the testator on
page 3 of the will are not authentic.

ISSUE: Whether or not the will executed by Antonio Vergel de Dios complied with all the
solemnities and requirements prescribed by law in order for it to be valid.

HELD: Yes. Section 618 of the code of Civil Procedure, as amended by Act No. 2645,
contains three paragraphs, of which the first enumerates in general terms the
requirements to be met by a will executed after said Code took effect, to wit, that the
language or dialect in which it is written be known by the testator, that it be signed by the
latter or by another person in the name of the testator by his express direction and in his
presence, and that it be attested and signed by three or more credible witnesses in the
presence of the testator and of each other. 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, on the left margin, and said pages shall be numbered correlatively in
letters placed on the upper part of each sheet”. The second paragraph which deals only
with the will, without including the attestation clause, that the signature or name of the
testator and those of the witnesses are mentioned as necessary on the left margin of each
and everyone of the sheets of the will, not of the attestation clause, as well as the paging of
said sheet of the will, and not of the attestation clause which is not yet spoken of.
The evidence sufficiently shows that when Attorney Lopez Lizo read the will to the
testator, the latter's mind was perfectly sane and he understood it: that he signed all the
pages of the will proper, although he did not sign the page containing the attestation clause;
that while he did not personally call the witnesses, yet the latter were invited by Attorney
Lopez Lizo to act as such in his presence. In the case at bar the attestation clause in
question states that the requirements prescribed for the will were complied with, and this
is enough for it to be held in compliance with the said solemnities. The fact that in said
clause the signature of the testator does not appear does not affect its validity, for the law
does not require that it be signed by the testator.
The court held that the last will and testament of the deceased Antonio Vergel de
Dios meets all the requirements prescribed by the law now in force and therefore it must
be allowed to probate as prayed for by the petitioner.

71
 BELLA  A. GUERRERO, petitioner   v.  RESURRECCION  A. BIHIS,  respondent
GR no. 174144         April 17, 2007
FIRST DIVISION
PONENTE: CORONA, J.

FACTS: Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and

respondentResurreccion A. Bihis, died. Guerrero filed for probate in the RTC QC. Responde
nt Bihis opposed her elder sister'spetition on the following grounds: the will was not
executed and attested as required by law; its attestation clause and acknowledgment did
not comply with the requirements of the law; the signature of the testatrix was procured by
fraud and petitioner and her children procured the will through undue and improper
pressure and influence. Petitioner Guerrero was appointee’s special administratrix.
Respondent opposed petitioner's appointment but subsequently withdrew her opposition.
The trial court denied the probate of the will ruling that Article 806 of the Civil Code was
not complied with because the will was "acknowledged" by the testatrix and the witnesses
at the testatrix's residence at No. 40 Kanlaon Street, Quezon City before Atty. Macario O.
Directo who was a commissioned notary public for and in Caloocan City.

ISSUE: Whether or not  the will acknowledged by the testator and the instrumental
witnesses before a notary public acting outside the place of his commission is in
compliance with the requirement prescribed under Article 806 of the Civil Code

HELD: No. One of the formalities required by law in connection with the execution of a
notarial will is that it must be acknowledged before a notary public by the testator and the
witnesses. This formal requirement is one of the indispensable requisites for the validity of
a will. In other words, a notarial will that is not acknowledged before a notary public by the
testator and the instrumental witnesses is void and cannot be accepted for probate. The
Notarial law provides: SECTION 240.Territorial jurisdiction.

  The jurisdiction of a notary public in a province shall be co-extensive with the

province. The jurisdiction of a notary public in the City of Manila shall be co-extensive with
said city. No notary shall possess authority to do any notarial act beyond the limits of his
jurisdiction. The compulsory language of Article 806 of the Civil Code was not complied
with and the interdiction of Article 240 of the Notarial Law was breached. Thus, the
testratix and the instrumental witnesses could not have validly acknowledged the will
before him. As such, Felisa Tamio de Buenaventura’s last will and testament was, in effect,
not acknowledged as required by law.

72
 LETICIA VALMONTE ORTEGA, petitioner v. JOSEFINA C. VALMONTE, respondent
G.R. No. 157451 December 16, 2005
THIRD DIVISION
PONENTE: Panganiban, J.,

FACTS: Placido toiled and lived for a long time in the United States until he finally
reached retirement. Placido finally came home to stay in the Philippines, and he
lived in the house and lot which he owned in common with his sister Ciriaca
Valmonte and titled in their names. Two years after his arrival from the United
States and at the age of 80 he wed Josefina who was then 28 years old in a civil
ceremony. But in a little more than two years of wedded bliss, Placido died. Placido
executed a notarial last will and testament written in English and consisting of two
pages, and dated June 15, 1983 but acknowledged only on August 9, 1983.  The first
page contains the entire testamentary dispositions and a part of the attestation
clause, and was signed at the end or bottom of that page by the testator and on the
left hand margin by the three instrumental witnesses.  The second page contains the
continuation of the attestation clause and the acknowledgment, and was signed by
the witnesses at the end of the attestation clause and again on the left hand margin.
The allowance to probate of this will was opposed by Leticia on the grounds
that: a) petitioner failed to allege all assets of the testator, especially those found in
the USA; b) he failed to state the names, ages, and residences of the heirs of the
testator; or to give them proper notice pursuant to law; c) Will was not executed and
attested as required by law and legal solemnities and formalities were not complied
with; and d) testator was mentally incapable to make a will at the time of the alleged
execution he being in an advance sate of senility. At the hearing, the petitioner
Josefina testified and called as witnesses the notary public Atty. Floro Sarmiento.

ISSUE: Whether or not Placido Valmonte has testamentary capacity at the time he
allegedly executed the subject will.

HELD: Yes. In determining the capacity of the testator to make a will, the Civil Code gives
the guidelines through the provisions of Articles 798, 799 and 800. According to Article
799, the three things that the testator must have the ability to know to be considered of
sound mind are as follows:  (1) the nature of the estate to be disposed of, (2) the proper
objects of the testator’s bounty, and (3) the character of the testamentary act.  Applying this
test to the present case, the Court held that the appellate court was correct in holding that
Placido had testamentary capacity at the time of the execution of his will.
 It must be noted that despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his shares in them and even their
locations.  As regards the proper objects of his bounty, it was sufficient that he identified
his wife as sole beneficiary.  As we have stated earlier, the omission of some relatives from
the will did not affect its formal validity.  There being no showing of fraud in its execution,
intent in its disposition becomes irrelevant.
As the Court held in the case of Alsua-Betts v. CA, "To constitute a sound and
disposing mind, it is not necessary that the mind be unbroken or unimpaired or
unshattered by disease or otherwise. It has been held that testamentary incapacity does
not necessarily require that a person shall actually be insane or of unsound mind."

73
AGAPITA N. CRUZ, petitioner v. HON. JUDGE GUILLERMO P. VILLASOR and MANUEL B.
LUGAY, respondents
G.R. No. L-32213 November 26, 1973
FIRST DIVISION
PONENTE: ESGUERRA, J.

FACTS: The Court of First Instance of Cebu allowed the probate of the last will and
testament of the late Valenti Cruz. However, the petitioner opposed the allowance of the
will alleging that it was executed through fraud, deceit, misrepresentation, and undue
influence. He further alleged that the instrument was executed without the testator having
been informed of its contents and finally, that it was not executed in accordance with law.
One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was
acknowledged. Despite the objection, the lower court admitted the will to probate on the
ground that there is substantial compliance with the legal requirements of having at least 3
witnesses even if the notary public was one of them.

ISSUE: Whether or not the will is valid in accordance with Art. 805 and 806 of the New Civil
Code

HELD: NO. The will is not valid. The notary public cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the
said will. An acknowledging officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and

'before' means in front of or proceeding in space or ahead of. The notary 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 situation would be absurd.
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.
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.
Finally, the function of a notary among others is to guard against any illegal or
immoral arrangements, a function defeated if he were to be one of the attesting or
instrumental witnesses. He would be interested in sustaining the validity of the will as it
directly involves himself and the validity of his own act. He would be in an inconsistent
position, thwarting the very purpose of the acknowledgment, which is to minimize fraud.

74
 REV. FATHER LUCIO V. GARCIA, petitioner, v. HON. CONRADO M. VASQUEZ,
respondent
G.R. No. L-26615 April 30, 1970
EN BANC
PONENTE: REYES, J.B.L., J.

FACTS: Gliceria Avelino del Rosario died unmarried leaving no descendents, ascendants,
brother or sister. At the time of her death, she was said to be 90 years old more or less, and
possessed of an estate consisting mostly of real properties. Consuelo S. Gonzales Vda. de
Precilla, a niece of the deceased, petitioned for probate of the alleged last will and
testament of Gliceria A. del Rosario, executed on 29 December 1960, and for her
appointment as special administratrix of the latter’s estate, said to be valued at about
P100,000.00, pending the appointment of a regular administrator thereof. The petition was
opposed separately by several groups of alleged heirs. Oppositor Lucio V. Garcia, who also
presented for probate the 1956 will of the deceased, joined the group of Dr. Jaime Rosario
in registering opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de
Precilla as special administratrix, on the ground that the latter possesses interest adverse
to the estate. After the parties were duly heard, the probate court, in its order of 2 October
1965, granted petitioner’s prayer and appointed her special administratrix of the estate
upon a bond for P30,000.00. The order was premised on the fact the petitioner was
managing the properties belonging to the estate even during the lifetime of the deceased,
and to appoint another person as administrator or co administrator at that stage of the
proceeding would only result in further confusion and difficulties.

ISSUE: Whether or not the probate court is correct in admitting to probate the 1960 will of
the deceased Gliceria Avelino del Rosario.

HELD: No. The probate court erred in admitting to probate the 1960 will of Gliceria Avelino
del Rosario. The records of the probate proceeding fully establish the fact that the testatrix,
Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956 written
in Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera,
Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose Ayala;
and another dated 29 December 1960, consisting of 1 page and written in Tagalog,
witnessed by Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and
acknowledged before notary public Remigio M. Tividad. Called to testify on the due
execution of the 1960 will are instrumental witnesses Decena, Lopez and Rosales.
The court considered the declarations of Dr. Jesus V. Tamesis very material and
illuminating. Thus, for all intents and purpose of the rules on probate, the deceased Gliceria
del Rosario was not unlike a blind testator, and the due execution of her will would have
required observance of the provisions of Article 808 of the Civil Code. The rationale behind
the requirement of reading the will to the testator if he is blind or incapable of reading the
will himself is to make the provisions thereof known to him, so that he may be able to
object if they are not in accordance with his wishes. That the aim of the law is to insure that
the dispositions of the will are properly communicated to and understood by the
handicapped testator, thus making them truly reflective of his desire, is evidenced by the
requirement that the will should be read to the latter, not only once but twice, by two
different persons, and that the witnesses have to act within the range of his other senses. In
connection with the will here in question, there is nothing in the records to show that the
above requisites have been complied with. Clearly, as already stated, the 1960 will sought
to be probated suffers from infirmity that affects its due execution.

75
 CESAR ALVARADO, petitioner, v.
HON. RAMON G. GAVIOLA, JR., respondent
G.R. No. 74695 September 14, 1993
FIRST DIVISION
PONENTE:BELLOSILLO, J

FACTS: Brigido Alvarado, then 79-years old, executed a notarial will entitled "Huling
Habilin" wherein he disinherited an illegitimate son, herein petitioner, and expressly
revoked a previously executed holographic will at the time awaiting probate. 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-page document, read the
same aloud in the presence of the testator, the three instrumental witnesses and the notary
public. On December 29, 1977, a codicil entitled "Kasulatan ng Pagbabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin 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 personally read the
final draft of the codicil. Instead, it was private respondent who read it aloud in his
presence and in the presence of the three instrumental witnesses, same as those of the
notarial will. Upon probate, it was contested by the herein petitioner on the ground that it
was not executed and attested as required by law for he is not blind at the time it was
executed.

ISSUE: Whether or not Brigido Alvarado was considered blind for the purpose of Art. 808
at the time of the execution of his will and codicil; and if so, was the double-reading
requirement was complied with.

HELD: No. 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 14 December 1977, or he just had
poor eyesight. 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 necessary for private respondent to do
the actual reading for him. Art. 808 applies not only to blind testators but also to those who,
for one reason or another, are "incapable of reading the(ir) will(s)." 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.
The 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. Private respondent read the testator's will and codicil aloud in
the presence of the testator, his three instrumental witnesses, and the notary public. To
reiterate, substantial compliance suffices where the purpose has been served.

76
 AGAPITA N. CRUZ, petitioner v. HON. JUDGE GUILLERMO P. VILLASOR and
MANUEL B. LUGAY, respondents
G.R. No. L-32213 November 26, 1973
FIRST DIVISION
PONENTE: ESGUERRA, J.

FACTS: The Court of First Instance of Cebu allowed the probate of the last will and
testament of the late Valenti Cruz. However, the petitioner opposed the allowance of the
will alleging that it was executed through fraud, deceit, misrepresentation, and undue
influence. He further alleged that the instrument was executed without the testator having
been informed of its contents and finally, that it was not executed in accordance with law.
One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was
acknowledged. Despite the objection, the lower court admitted the will to probate on the
ground that there is substantial compliance with the legal requirements of having at least 3
witnesses even if the notary public was one of them.

ISSUE: Whether or not the will is valid in accordance with Art. 805 and 806 of the New Civil
Code

HELD: NO. The will is not valid. The notary public cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the
said will. An acknowledging officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and

'before' means in front of or proceeding in space or ahead of. The notary 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 situation would be absurd.
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.
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.
Finally, the function of a notary among others is to guard against any illegal or
immoral arrangements, a function defeated if he were to be one of the attesting or
instrumental witnesses. He would be interested in sustaining the validity of the will as it
directly involves himself and the validity of his own act. He would be in an inconsistent
position, thwarting the very purpose of the acknowledgment, which is to minimize fraud.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the
probate of the last will and testament of Valente Z. Cruz is declared not valid and hereby set
aside.

77
 RIZALINA GABRIEL GONZALES, petitioner, v.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
G.R. No. L-37453 May 25, 1979
FIRST DIVISION
PONENTE: GUERRERO, J.
FACTS: Petitioner Rizalina Gonzales and Private respondent Lutgarda Santiago are the
nieces of the deceased Isabel Gabriel who died at the age of 85 years old as a widow. A will
was thereafter submitted to probate. The said will was typewritten, in Tagalog and
appeared to have been executed in April 1961 or two months prior to the death of Isabel. It
consisted of 5 pages including the attestation and acknowledgment, with the signature of
testatrix on page 4 and the left margin of all the pages. Lutgarda was named as the
universal heir and executor. The petitioner opposed the probate. The lower court denied
the probate on the ground that the will was not executed and attested in accordance with
law on the issue of the competency and credibility of the witnesses.

ISSUE: Whether or not the credibility of the subscribing witnesses is material to the
validity of a will

HELD: No. The law requires only that witnesses possess the qualifications under Art. 820
and none of the disqualifications of Art. 802 as provided in the New Civil Code. There is no
requirement that they are of good standing or reputation in the community, for
trustworthiness, honesty and uprightness in order that his testimony is believed and
accepted in court because such attributes are presumed of the witness unless the contrary
is proved otherwise by the opposing party. For the testimony to be credible, it is not
mandatory that evidence be established on record that the witnesses have good standing in
the community. Competency is distinguished from credibility, the former being determined
by Art. 820 while the latter does not require evidence of such good standing. Credibility
depends on the convincing weight of his testimony in court.

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. 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 which the court is
bound to accept and rely upon.

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. "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."

78
 EMILIANA MOLO-PECKSON and PILAR PEREZ-NABLE, Petitioners-Appellees, vs.
ENRIQUE TANCHUCO, FAUSTINO GOMEZ, ET AL., Oppositors-Appellants.

G.R. No. L-8774.  November 26, 1956.

EN BANC

PONENTE: MONTEMAYOR, J.

FACTS: Mariano Molo and Juana Juan was a couple possessed of much worldly wealth, but
no children. They took into their home and custody two baby girls, raising them from
infancy, treating them as their own daughters, sending them to school, and later to the best
and exclusive centers of higher learning, until they both graduated, one in pharmacy, and
the other in law. These two fortunate girls, now grown up women and married, are
Emiliana Perez-Molo-Peckson, a niece of Juana, and Pilar Perez-Nable a half-sister of
Emiliana. Mariano Molo died in January, 1941, and by will bequeathed all his estate to his
wife. Juana, his widow, died on May 28, 1950, leaving no forced heirs but only collateral,
children and grandchildren of her sisters. She left considerable property worth around a
million pesos or more, and to dispose of the same, she was supposed to have executed a
document purporting to be her last will and testament, wherein she bequeathed the bulk of
her property to her two foster children, Emiliana and Pilar. Petitioners presented the
document for probate which the decedent’s other relatives opposed on the ground that the
instrument in question was not the last will and testament of Juana.

ISSUE: Whether or not Juana vda. De Molo, in executing her last will and testament,
complied with the requirement prescribed by law particularly the requirement as to
credible witnesses.

HELD: Yes. It was proved to the full satisfaction of the Court that the deceased freely and
voluntarily executed her last will and testament, in the presence of her three attesting
witnesses that at the time of the execution of the said will, the deceased was of sound mind
and in good health and was fully conscious of all her acts.

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 will, 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.

The term ‘credible’, used in the statute of wills requiring that a will shall be attested
by two credible witnesses, means competent; 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
time it is offered for probate. A ‘credible witness’ is one who is not disqualified to testify by
mental incapacity, crime, or other cause.

79
 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO
LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR,
ENRICA LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants, 
vs.
COURT OF APPEALS,  GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-
appellees.
G.R. Nos. 83843-44 April 5, 1990
SECOND DIVISION
PONENTE: PARAS, J.

FACTS: Melecio Labrador died in Zambales, where he was residing, leaving behind a parcel
of land to his heirs: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria
and Jovita, all surnamed Labrador, and a holographic will. Sagrado Labrador, deceased but
substituted by his heirs, Enrica Labrador and Cristobal Labrador, filed a petition for the
probate of the alleged holographic will of the late Melecio Labrador. Jesus Labrador,
deceased but substituted by his heirs, and Gaudencio Labrador filed an opposition to the
petition on the ground that the will has been extinguished or revoked by implication of law,
that before Melecio's death, testator executed a Deed of Absolute Sale in favor of Jesus and
Gaudenco.
Respondents claim that the date 17 March 1968 in the will was when the testator
and his beneficiaries entered into an agreement among themselves about "the partitioning
and assigning the respective assignments of the said fishpond," and was not the date of
execution of the holographic will; hence, the will is more of an "agreement" between the
testator and the beneficiaries thereof to the prejudice of other compulsory heirs like the
respondents which was thus a failure to comply with Article 783.

ISSUE: Whether or not the alleged holographic will of one Melecio Labrador is dated, as
provided for in Article 810 of the New Civil Code.

HELD: Yes. The will has been dated in the hand of the testator himself in perfect
compliance with Article 810. The law does not specify a particular location where the date
should be placed in the will. The only requirements are that the date be in the will itself and
executed in the hand of the testator. These requirements are present in the subject will.
Respondents’ contention is incorrect. The intention to show 17 March 1968 as the
date of the execution of the will is plain from the tenor of the succeeding words of the
paragraph. As aptly put by petitioner, the will was not an agreement but a unilateral act of
Melecio Labrador who plainly knew that what he was executing was a will. The act of
partitioning and the declaration that such partitioning as the testator's instruction or
decision to be followed reveal that Melecio Labrador was fully aware of the nature of the
estate property to be disposed of and of the character of the testamentary act as a means to
control the disposition of his estate.

80
 IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA
ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners, 
vs. ANDRES R. DE JESUS, JR., respondent.
G.R. No. L-38338 January 28, 1985
FIRST DIVISION
PONENTE: GUTIERREZ, JR., J.

FACTS: After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, a Special
Proceeding entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana
Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased
Bibiana Roxas de Jesus. Petitioner Simeon R. Roxas was appointed administrator who
delivered to the court a document purporting to be the holographic Will of the deceased
Bibiana Roxas de Jesus.
Simeon alleged to found a notebook belonging to the deceased Bibiana R. de Jesus
and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to her children and
entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was
found. The will is dated "FEB./61" and states: "This is my win which I want to be respected
although it is not written by a lawyer. Such testimony was corroborated by Pedro and
Manuel Roxas de Jesus who recognized the handwriting of their mother and positively
Identified her signature.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"
assailing the purported holographic Will of Bibiana R. de Jesus because a it was not
executed in accordance with law, and that it was undated.

ISSUE: Whether or not the date "FEB./61 " appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code

HELD: Yes. Petitioners are correct in contending that while Article 685 of the Spanish Civil
Code and Article 688 of the Old Civil Code require the testator to state in his holographic
Win the "year, month, and day of its execution," the present Civil Code omitted the phrase
Añ o mes y dia and simply requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the holographic Will should prevail. This
will not be the first time that the Court departs from a strict and literal application of the
statutory requirements regarding the due execution of Wills.
The law has a tender regard for the will of the testator expressed in his last will and
testament on the ground that any disposition made by the testator is better than that which
the law can make. For this reason, intestate succession is nothing more than a disposition
based upon the presumed will of the decedent. Thus, the prevailing policy is to require
satisfaction of the legal requirements in order to guard against fraud and bad faith but
without undue or unnecessary curtailment of testamentary privilege. If a Will has been
executed in substantial compliance with the formalities of the law, and the possibility of
bad faith and fraud in the exercise thereof is obviated, said Win should be admitted to
probate.
A complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on the day on
which a Will was executed. There is no such contingency in this case. As a general rule, the
"date" in a holographic Will should include the day, month, and year of its execution.
However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is
whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance
with Article 810 of the Civil Code, probate of the holographic Will should be allowed under
the principle of substantial compliance.

81
 In re Will of Francisco Varela Calderon, deceased. 
FRANCISCO CARMELO VARELA, petitioner-appellee, v. MIGUEL VARELA
CALDERON, ET AL., opponents-appellants
G.R. No. L-36342     October 8, 1932
EN BANC
PONENTE: IMPERIAL, J.

FACTS: The deceased, a physician by profession, was a Filipino citizen resident of the City
of Manila where he owned real properties assessed at P188,017.81. He traveled abroad for
his health and temporarily resided in Hendaye-Plage, France. Not feeling very well, but in
the full enjoyment of his mental faculties, he decided to make his last will and testament in
Paris, France, with the assistance of attorneys F. de Roussy de Sales, Gething C. Miller and
Henri Gadd. Sometime later, that is on July 15, 1930, he died in the Grand-Hotel de Leysin
Sanatorium in Switzerland.
Francisco Carmelo Varela, herein petitioner-appellee, filed a petition praying that
said will be admitted to probate. Said petition was opposed by the deceased's brother Jose
Miguel, Angel, Jesus, Trinidad, Paula, Pilar and Maria, surnamed Varela Calderon, although,
later on, the first mentioned opponent withdrew his opposition giving as his reason
therefor that it was out of respect for the testator's wishes because the will was executed in
his own handwriting. The grounds of the opposition are as follows: (a) That the will sought
to be probate was not holographic in character and did not comply with the requisites
prescribed by article 970 of the French Civil Code; (b) that the witnesses to the will did not
possess the qualifications required by article 980 of the French Civil Code; (c) that for not
having complied with the requisites prescribed by the French law, said will is null and void;
(d) that neither has it the character of an open will, not having been executed in accordance
with article 1001 of the French Civil Code; and (e) that the provisions of article 1007 of the
same Code relative to the recording of wills were not complied with in connection with the
will in question.

ISSUE: Whether or not the alleged last will and testament of the deceased Francisco Varela
Calderon, was a valid holographic will made and executed, in accordance with the laws of
the French Republic.

HELD: No. The original will was executed in the French language and had been written,
dated and signed by the testator with his own hand, with the exception of the attestation
clause which appears at the bottom of the document. This fact is proved by the testimony of
the appellee and his other witnesses, including the depositions, and is admitted by the
appellants.
The court which originally took cognizance of the case decided that such
circumstance does not invalidate the will. Philippine Court concur in said opinion and hold
that a clause drawn up in such manner is superfluous and does not affect in any way the
essential requisites prescribed for holographic wills by the French law, and, consequently,
it has not invalidated the will nor deprived it of its holographic character.
In reaching this conclusion, the Court based its opinion on depositions made by
practicing attorneys F. de Roussy de Sales, Gething C. Miller and Henri Gadd of Paris,
France, who emphatically declared that the will in question did not lose its holographic
character by the addition of the aforementioned attestation clause and that it may be
allowed to probate in conformity with the French laws under which it had been made and
executed.

82
ROSA K. KALAW, petitioner, v. HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the
CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
G.R. No. L-40207 September 28, 1984
FIRST DIVISION
PONENTE: MELENCIO-HERRERA, J.

FACTS: Private respondent GREGORIO K. KALAW, claiming to be the sole heir of his
deceased sister, Natividad K. Kalaw, filed a petition for the probate of her holographic Will
executed on December 24, 1968. The holographic Will, as first written, named ROSA K.
Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner
ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained
alterations, corrections, and insertions without the proper authentication by the full
signature of the testatrix as required by Article 814 of the Civil Code. ROSA's position was
that the holographic Will, as first written, should be given effect and probated so that she
could be the sole heir thereunder. Respondent Judge denied probate. GREGORIO moved for
reconsideration arguing that since the alterations and/or insertions were the testatrix, the
denial to probate of her holographic will would be contrary to her right of testamentary
disposition. Reconsideration was likewise denied on the ground that "Article 814 of the
Civil Code being, clear and explicit, (it) requires no necessity for interpretation."

ISSUE: Whether or not the original unaltered text after subsequent alterations and/or
insertions will be deemed voided.

HELD: Yes. Such alterations and/or insertions will have the effect of voiding or revoking
the original will provided that such alterations or insertions will be authenticated in the
manner prescribed by law.

Ordinarily, when a number of erasures, corrections, and interlineations made by the

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

As in the ruling in the Velasco case, must be held confined to such insertions,

cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of
the altered words themselves but not the essence and validity of the Will itself. As it is, with
the erasures, cancellations and alterations made by the testatrix herein, her real intention
cannot be determined with certitude.

83
SPOUSES ROBERTO AND THELMA AJERO, petitioners, v. THE COURT OF APPEALS AND
CLEMENTE SAND, respondents.
G.R. No. 106720 September 15, 1994
SECOND DIVISION
PONENTE: PUNO, J.

FACTS: An action for probate was filed in court concerning the holographic will of the late
Annie Sand, who died on November 25, 1982. In the will, decedent named as devisees:
petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S.
Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and
their children. Petitioners instituted a special action for allowance of decedent's
holographic will. They alleged that at the time of its execution, she was of sound and
disposing mind, not acting under duress, fraud or undue influence, and was in every
respect capacitated to dispose of her estate by will. Private respondent, on the other hand,
opposed the petition on the grounds that: neither the testament's body nor the signature
therein was in decedent's handwriting; it contained alterations and corrections which were
not duly signed by decedent; and, the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero who
contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del
Norte which, he claimed, cannot be conveyed by decedent as she was not its sole owner.

ISSUE: Whether or not unauthenticated alterations, cancellations or insertions made in the

holographic will or on testator's signature will invalidate the will itself. 

HELD: Yes. Unless the unauthenticated alterations, cancellations or insertions were made
on the date of the holographic will or on testator's signature, their presence does not
invalidate the will itself.  The lack of authentication will only result in disallowance of such
changes.
In a petition to admit a holographic will to probate, the only issues to be resolved
are: (1) whether the instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the necessary testamentary capacity at
the time the will was executed; and, (4) whether the execution of the will and its signing
were the voluntary acts of the decedent.
For purposes of probating non-holographic wills, such formal solemnities include
the subscription, attestation, and acknowledgment requirements under Articles 805 and
806 of the NCC. In the case of holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally autographic or handwritten by the
testator himself, as provided under Article 810 of the NCC. Likewise, a holographic will can
still be admitted to probate, notwithstanding non-compliance with the provisions of Article
814.
As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation constrains them to do, and pass upon
certain provisions of the will.  In the case at bench, decedent herself indubitably stated in
her holographic will that the Cabadbaran property is in the name of her late father, John H.
Sand. Thus, as correctly held by respondent court, she cannot validly dispose of the whole
property, which she shares with her father's other heirs.

84
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL,  petitioners, vs. EVANGELINE R.
CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, respondents.
G.R. No. 123486   August 12, 1999
FIRST DIVISION
PONENTE: PARDO, J.

FACTS: Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees
of the holographic will of the deceased Matilde Señ o Vda. de Ramonal filed a petition for
probate of the holographic will of the deceased, who died on January 16, 1990.
Respondents claimed that the deceased was of sound and disposing mind when she
executed the will on August 30, 1978, that there was no fraud, undue influence, and duress
employed in the person of the testator, and the will was written voluntarily. The assessed
value of the decedent’s property, including all real and personal property was
about P400,000.00, at the time of her death. Eugenia Ramonal Codoy and Manuel Ramonal
filed an opposition to the petition for probate, alleging that the holographic will was a
forgery and that the same is even illegible.  This gives an impression that a “third hand” of
an interested party other than the “true hand” of the decedent executed the holographic
will.
Petitioners argued that the repeated dates incorporated or appearing on the will after
every disposition is out of the ordinary.  If the deceased was the one who executed the will,
and was not forced, the dates and the signature should appear at the bottom after the
dispositions, as regularly done and not after every disposition.  And assuming that the
holographic will is in the handwriting of the deceased, it was procured by undue and
improper pressure and influence on the part of the beneficiaries, or through fraud and
trickery. Respondents, on the other hand, presented six witnesses and various
documentary evidence.  

ISSUE: Whether or not Article 811 of the Civil Code, providing that at least three witnesses
explicitly declare the signature in a contested will as the genuine signature of the testator,
is mandatory or merely directory.

HELD: YES. Said requirement is mandatory. The word “shall” connotes a mandatory order,
an imperative obligation and is inconsistent with the idea of discretion and that the
presumption is that the word “shall”, when used in a statute, is mandatory. In the case at
bar, the goal to be achieved by the law, is to give effect to the wishes of the deceased and
the evil to be prevented is the possibility that unscrupulous individuals who for their
benefit will employ means to defeat the wishes of the testator. The paramount
consideration in the present petition is to determine the true intent of the deceased.
Laws are enacted to achieve a goal intended and to guide against an evil or mischief
that aims to prevent.  In the case at bar, the goal to achieve is to give effect to the wishes of
the deceased and the evil to be prevented is the possibility that unscrupulous individuals
who for their benefit will employ means to defeat the wishes of the testator. The Court
believed that the paramount consideration in the present petition is to determine the true
intent of the deceased.  An exhaustive and objective consideration of the evidence is
imperative to establish the true intent of the testator.
The object of solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. However, one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise the right to make a will. However, we
cannot eliminate the possibility of a false document being adjudged as the will of the
testator, which is why if the holographic will is contested, the law requires three witnesses
to declare that the will was in the handwriting of the deceased.

85
 JOSE RIVERA petitioner, v. INTERMEDIATE APPELLATE COURT and ADELAIDO J.
RIVERA, respondents.
G.R. Nos. 75005-06 February 15, 1990
FIRST DIVISION
PONENTE: CRUZ, J.

FACTS: A prominent and wealthy resident of Mabalacat, Pampanga named Venancio Rivera
died. Jose Rivera, claiming to be the only surviving legitimate son of the deceased, filed a
petition for the issuance of letters of administration over Venancio's estate. However, said
petition was opposed by Adelaido J. Rivera, who denied that Jose was the son of the
decedent. Adelaido averred that Venancio was his father and did not die intestate but in
fact left two holographic wills.  Adelaido filed a petition for the probate of the holographic
wills. This petition was in turn opposed by Jose Rivera, who reiterated that he was the sole
heir of Venancio's intestate estate. Adelaido J. Rivera was later appointed special
administrator. After joint trial, Judge Eliodoro B. Guinto found that Jose Rivera was not the
son of the decedent but of a different Venancio Rivera who was married to Maria Vital. The
Venancio Rivera whose estate was in question was married to Maria Jocson, by whom he
had seven children, including Adelaido. Jose Rivera had no claim to this estate because the
decedent was not his father. The holographic wills were also admitted to probate.

ISSUE: Whether or not herein petitioner, Jose Rivera, alleging to be the legitimate son, had
the personality to contest the wills executed by the decedent named Venancio Rivera.

HELD: No. Jose Rivera is not the son of the deceased Venancio Rivera whose estate is in
question. Hence, being a mere stranger, he had no personality to contest the wills and his
opposition thereto did not have the legal effect of requiring the three witnesses. The
testimony of Zenaida and Venancio Rivera, Jr., who authenticated the wills as having been
written and signed by their father, was sufficient.

Venancio Rivera who married Maria Jocson in 1942 was not the same person who
married Maria Vital, Jose's legitimate mother, in 1928. Jose belonged to a humbler family
which had no relation whatsoever with the family of Venancio Rivera and Maria Vital. This
was more prosperous and prominent. Except for the curious Identity of names of the head
of each, there is no evidence linking the two families or showing that the deceased
Venancio Rivera was the head of both.

Now for the holographic wills. The respondent court considered them valid because
it found them to have been written, dated and signed by the testator himself in accordance
with Article 810 of the Civil Code. It also held there was no necessity of presenting the three
witnesses required under Article 811 because the authenticity of the wills had not been
questioned.

86
 TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN,
Petitioner-Appellant, v. ILDEFONSO YAP, Oppositor-Appellee.
G.R. No. L-12190 August 30, 1958
EN BANC
PONENTE: BENGZON, J.

FACTS: Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas
Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.  Fausto E. Gan
initiated an action in Court with a petition for the probate of a holographic will allegedly
executed by the deceased. Opposing the petition, her surviving husband Ildefonso Yap
asserted that the deceased had not left any will, nor executed any testament during her
lifetime.  After hearing the parties and considering their evidence, the Hon. Judge Ramon R.
San Jose, refused to probate the alleged will. The will itself was not presented. Petitioner
tried to establish its contents and due execution by the statements in open court of Felina
Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez. Based on their
statements, the will contains some improbabilities which led the trial court to accept the
oppositor’s evidence that Felicidad did not and could not have executed such holographic
will. 

ISSUE: Whether or not a holographic will may be probated upon the testimony of witnesses
who have allegedly seen it and who declare that it was in the handwriting of the testator;
and that the execution and the contents of a lost or destroyed holographic will may be
proved by the bare testimony of witnesses who have seen and/or read such will.

HELD: No. Authenticity and due execution is the dominant requirement to be fulfilled when
such will is submitted to the courts for allowance. For that purpose the testimony of one of
the subscribing witnesses would be sufficient, if there is no opposition. If there is, the three
must testify, if available. From the testimony of such witnesses (and of other additional
witnesses) the court may form its opinion as to the genuineness and authenticity of the
testament, and the circumstances of its due execution. 
In the matter of holographic wills, no such guaranties of truth and veracity are
demanded, since as stated, they need no witnesses; provided however, that they are
"entirely written, dated, and signed by the hand of the testator himself." The law, it is
reasonable to suppose, regards the document itself as material proof of authenticity, and as
its own safeguard, since it could at any time, be demonstrated to be or not to be in the
hands of the testator himself. In the probate of a holographic will" says the New Civil Code,
"it shall be necessary that at least one witness who knows the handwriting and signature of
the testator explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent’s handwriting) and if the court
deem it necessary, expert testimony may be resorted to."
The execution and the contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity. In fine, even if oral testimony were
admissible to establish and probate a lost holographic will, the evidence submitted by
herein petitioner is so tainted with improbabilities and inconsistencies that it fails to
measure up to that "clear and distinct" proof required by Rule 77, Sec. 6.

87
 MARCELA RODELAS, petitioner-appellant, v. AMPARO ARANZA, ET AL., oppositors-
appellees
G.R. No. L-58509 December 7, 1982
FIRST DIVISION
PONENTE: RELOVA, J.

FACTS: Appellant Marcela Rodelas filed a petition for the probate of the holographic will of
Ricardo B. Bonilla and the issuance of letters testamentary in her favor. Appellant was
estopped from claiming that the deceased left a will by failing to produce the will within
twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of
Court. The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it was
not a will. The appellees moved to dismiss the petition for the probate of the will on the
ground that the alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent Ricardo B.
Bonilla; and that the lost or destroyed holographic wills cannot be proved by secondary
evidence unlike ordinary wills. Upon opposition of the appellant, the motion to dismiss was
denied by the court in its order. The appellees then filed a motion for reconsideration on
the ground that the order was contrary to law and settled pronouncements and rulings of
the Supreme Court. The court set aside its order and dismissed the petition for the probate
of the will of Ricardo B. Bonilla.

ISSUE: Whether or not a holographic will which was lost or cannot be found can be proved
by means of a photostatic copy.

HELD: Yes. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the
allowance of the will by the court after its due execution has been proved. The probate may
be uncontested or not. If uncontested, at least one Identifying witness is required and, if no
witness is available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no
other copy is available, the will cannot be probated because the best and only evidence is
the handwriting of the testator in said will. It is necessary that there be a comparison
between sample handwritten statements of the testator and the handwritten will. But, a
photostatic copy or xerox copy of the holographic will may be allowed because comparison
can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104
PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented; otherwise, it shall produce no
effect. The law regards the document itself as material proof of authenticity."

As part of the Court’s ruling, it says that "Perhaps it may be proved by a

photographic or photostatic copy. Even a mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of
the lost or destroyed holographic will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate court.

88
 JUANA JUAN VDA. DE MOLO, petitioner-appellee, v. LUZ, GLICERIA and CORNELIO
MOLO, oppositors-appellants
G.R. No. L-2538       September 21, 1951
EN BANC
PONENTE: BAUTISTA ANGELO, J.

FACTS: Mariano Molo Legaspi died on January 24, 1941, in the municipality of Pasay,
province of Rizal, without leaving any forced heir either in the descending or ascending
line. He was survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo,
and by his nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all
surnamed Molo, who were the legitimate children of Candido Molo Legaspi, deceased
brother of the testator. Mariano Molo Legaspi left two wills, one executed on August 17,
1918 and another executed on June 20, 1939. Only a carbon copy of the second will was
found. The widow filed a petition for the probate of the 1939 will. It was admitted to
probate but subsequently set aside on ground that the petitioner failed to prove its due
execution. As a result, the petitioner filed another petition for the probate of the 1918 will
this time. Again the oppositors alleged that said will had already been revoked under the
1939 will. They contended that despite the disallowance of the 1939 will, the revocation
clause is valid and thus effectively nullified the 1918 will.

ISSUE: Whether or not the 1918 will, executed by the decedent, can still be valid despite
the revocation in the subsequent disallowed 1939 will.

HELD: Yes. The court applied the doctrine laid down in Samson v. Naval that a subsequent
will, containing a clause revoking a previous will, having been disallowed for the reason
that it was not executed in accordance with law cannot produce the effect of annulling the
previous will, inasmuch as the said revocatory clause is void.
There was no valid revocation in this case. No evidence was shown that the testator
deliberately destroyed the original 1918 will because of his knowledge of the revocatory
clause contained in the will executed in 1939. The earlier will can still be probated under
the principle of dependent relative revocation. The doctrine applies when a testator cancels
or destroys a will or executes an instrument intended to revoke a will with the intention to
make a new testamentary disposition as substitute for the old, and the new disposition fails
of effect for some reason.
The doctrine is limited to the existence of some other document, however, and has
been applied where a will was destroyed as a consequence of a mistake of law. The failure
of a new testamentary disposition upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive condition, and hence prevents the
revocation of the original will. But a mere intent to make at some time a will in the place of
that destroyed will not render the destruction conditional. It must appear that the
revocation is dependent upon the valid execution of a new will.
The Court held that even in the supposition that the destruction of the original will
by the testator could be presumed from the failure of the petitioner to produce it in court,
such destruction cannot have the effect of defeating the prior will of 1918 because of the
fact that it is founded on the mistaken belief that the will of 1939 has been validly executed
and would be given due effect. The theory on which this principle is predicated is that the
testator did not intend to die intestate. And this intention is clearly manifest when he
executed two wills on two different occasions and instituted his wife as his universal heir.
There can therefore be no mistake as to his intention of dying testate.
Wherefore, the order appealed from is hereby affirmed, with costs against the
appellants.

89
 CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO, petitioners-
appellants, v. MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-
appellants.
G.R. No. L-11823       February 11, 1918
EN BANC
PONENTE: ARAULLO, J.

FACTS: Atty. Perfecto Gabriel presented in the Court the will executed by the deceased
Simeona F. Naval, and in which he was appointed executor. Said petition for allowance filed
by said executor was denied on the ground that said document was not duly executed by
the deceased as her last will and testament, inasmuch as she did not sign it in the presence
of three witness and the two witnesses did not sign it in the presence of each other.
Thereafter the nieces and legatees of the same deceased filed in the same court for
allowance as her will, another document executed by her on October 31, 1914. The petition
for allowance was opposed by Monica Naval, Rosa Naval, and Cristina Naval on the ground
that the will, the allowance of which is asked, could not be allowed, because of the existence
of another will of subsequent date, executed during her lifetime by the same Simeona F.
Naval, and because said will has been revoked by another executed subsequently by her
during her lifetime, and further, because sail will has not been executed with the
formalities required by existing laws. The Court admitted the second document and
ordering its allowance as the last will and testament of the deceased.

ISSUE: Whether or not the disallowance of the will of the deceased, dated February 13,
1915, on the ground that is was not executed in such form that it could transmit real and
personal property, according to section 618 of the Code of Civil Procedure, had the effect of
annulling the revocatory clause in said will.

HELD: No. The court did not say that the annulment of the revocatory clause in said will
was the effect or consequence of the fact that it was not allowed on the ground that it was
not executed in the form required by law in order that it may transmit real and personal
property. Referring to sections 618 and 623 of the Code of Civil Procedure, to the effect that
a subsequent will may revoke a previous will, although the later will has not been allowed
by the competent court, it being sufficient that the intention of the testator to revoke the
previous will should be clearly expressed, and that, while the requisite of allowance is
necessary in order that it may transmit property from one person to another, it is not
necessary in order that it might procedure other effects, for example, the effect of a
revocatory clause, or a clause of acknowledgment of a child.
The Court declared that although the revocation of a will should have been effected,
not by means of another will or codicil, but by mans of a document, as authorized by said
section 623, which document should have the requisites and conditions fixed in section
618, the presentation of the document to the court was necessary in order that the latter
might allow it, by declaring that it was executed with the formalities required by law for the
execution of a will, and finally concluding that is to be proved that the requisites of section
618 have been complied with in order that a will may be of value through its allowance, so
without such allowance the revocatory clause like the other provisions of the will, has no
value or effect except to show extraneous matters, as, for example, the acknowledgment of
natural children, of some debt or obligation.

90
 Estate of Miguel Mamuyac, deceased. 
FRANCISCO GAGO, petitioner-appellant, 
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA, 
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
G.R. No. L-26317      January 29, 1927
EN BANC
PONENTE: JOHNSON, J.

FACTS: Francisco Gago filed a petition for the probate of a will executed by Miguel
Mamuyac on July 27, 1918. The oppositors alleged that the said will was already annulled
and revoked. It appeared that on April 16, 1919, the deceased executed another will. The
lower court denied the probate of the first will on the ground of the existence of the second
will. Another petition was filed to seek the probate of the second will. The oppositors
alleged that the second  will presented was merely a copy. According to the  witnesses, the
said will was allegedly revoked as per the testimony of Jose Tenoy, one of the witnesses
who typed the document. Another witness testified that on December 1920 the original will
was actually cancelled by the testator.The lower court denied the probate and held that the
same has been annulled and revoked.

ISSUE: Whether or not there was a valid revocation of the will.

HELD: Yes. The will was already cancelled in 1920. This was inferred when after due
search, the original will cannot be found. Where a will which cannot be found is shown to
have been in the possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had ready access to the will and it
cannot be found after his death. It will not be presumed that such will has been destroyed
by any other person without the knowledge or authority of the testator. The force of the
presumption of cancellation or revocation by the testator, while varying greatly, being weak
or strong according to the circumstances, is never conclusive, but may be overcome by
proof that the will was not destroyed by the testator with intent to revoke it.

In view of the fat that the original will of 1919 could not be found after the death of
the testator Miguel Mamuyac and in view of the positive proof that the same had been
cancelled, we are forced to the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence. In a proceeding to probate a will the burden of
proofs is upon the proponent clearly to establish not only its execution but its existence.
Having proved its execution by the proponents, the burden is on the contestant to show
that it has been revoked. In a great majority of instances in which wills are destroyed for
the purpose of revoking them there is no witness to the act of cancellation or destruction
and all evidence of its cancellation perishes with the testator. Copies of wills should be
admitted by the courts with great caution. When it is proven, however, by proper
testimony that a will was executed in duplicate and each copy was executed with all the
formalities and requirements of the law, then the duplicate may be admitted in evidence
when it is made to appear that the original has been lost and was not cancelled or
destroyed by the testator.

91
 In re will of Josefa Zalamea y Abella, deceased. 
PEDRO UNSON, petitioner-appellee, 
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.
G.R. No. 17857      June 12, 1922.
EN BANC
PONENTE: VILLAMOR, J.

FACTS: Doñ a Josefa Zalamea y Abella, single, 60 years of age, executed her last will and
testament with an attached inventory of her properties in the presence of three witnesses,
who signed with her all the pages of said documents. Pedro Unson, executor of Dona Josefa
Zalamea’s last will, filed a petition for theprobate of the will of the latter. Attached on the
said will is an inventory of all the properties of Dona Josefa. Opposition was
made thereto by Antonio, Ignacia and Avivencia Abella and Santiago Vito on the
following grounds: a) will is not paged correlatively in letters rather it is in Arabic
numerals; b) there is no attestation clause in the inventory attached to the will; and c) will
was not signed by the testatrix and the witnesses in the presence of each other. Only two of
the witnesses, namely Gonzalo Avaya and Eugenio Zalamea, testified as to the
authenticity of the will. The third witness, Pedro de Jesus, was not presented
because he was hostile with Unson and has been meeting with the oppositors
since the filing of the petition for the probate of the will of Josefa.

ISSUE: Whethe or not the will is valid.

HELD: Yes. It was held in a previous case that numbering the pages of a will in Arabic
numerals is in compliance with the spirit of the law, inasmuch as either one of these
methods indicates the correlation of the pages and serves to prevent the abstraction of
any of them. In the course of the decision, the court held that "it might be said that the
object of the law in requiring that the paging be made in letters is to make falsification
more difficult, but it should be noted that since all the pages of the testament
are signed at the margin by the testatrix and the witnesses, the difficulty of forging the
signatures in either case remains the same. In other words, the more or less degree of
facility to imitate the writing of the letters A, B, C, etc., does not make for the easiness to
forge the signatures.

The inventory is referred to in the will as an “integral part” of it so the

inventory need not have an additional attestation clause at the end. The actuation of the
proponents in not bringing to court Pedro de Jesus does not render the will invalid.

As announced in Cabang vs. Delfinado, the general rule is that, where opposition
is made to the probate of a will, the attesting witnesses must be produced. Exceptions
to this rule are: a ) w h e n a   w i t n e s s i s   d e a d , b ) h e cannot be served with
process of the court, c) his reputation for truth has been questioned, or d) he
appears hostile to the cause of the proponent. In the aforementioned cases,
the will may be admitted to probate without the testimony of said witness, if, upon
the other proofs adduced in the case, the court is satisfied that the will has been duly
executed. But supposing that de Jesus, when cited, had testified adversely to the
application, this would not by itself have change the result reached by the court
f o r section 632 of the Code of Civil Procedure provides that a will can be admitted to
probate, notwithstanding that one or more witnesses do not remember having
attested it, provided the court is satisfied upon the evidence adduced that the will has been
executed and signed in the manner prescribed by the law

92
 YAP TUA, petitioner-appellee, 
vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.
G.R. No. 6845      September 1, 1914
EN BANC
PONENTE: JOHNSON, J.

FACTS: Perfecto Gabriel, representing the petitioner, Yap Tua, filed an action asking that the
will of Tomasa Elizaga Yap Caong be admitted to probate, as it is the last will and testament
of the deceased. It appears that the will was signed by the deceased, as well as Anselmo
Zacarias, Severo Tabora, and Timoteo Paez. No further proceedings were had until Yap Ca
Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were interested
in the matters of the said will and desired to intervene and asked that a guardian ad
litem be appointed to represent them in the cause. Tomasa Elizaga Yap Caong allegedly
executed two wills, the first will dated August 6, 1909 and the second will dated August
11,1909. It was also alleged that the signatures appearing in the August 11, 1909 will were
written by two different hands.

ISSUE: Whether or not the Tomasa Elizaga Yap Caong did validly execute will dated August
11, 1909.

HELD: Yes. Tomasa Elizaga Yap Caong did execute, freely and voluntarily, while she was in
the right use of all her faculties, the will dated August 11, 1909. There appears to be but
little doubt that Tomasa Elizaga Yap Caong did execute the will of August 6, 1909. Several
witnesses testified to that fact. The mere fact, however, that she executed a former will is no
proof that she did not execute a later will. She had a perfect right, by will, to dispose of her
property, in accordance with the provisions of law, up to the very last of moment her life.
She had a perfect right to change, alter, modify or revoke any and all of her former wills and
to make a new one. Neither will the fact that the new will fails to expressly revoke all
former wills, in any way sustain the charge that she did not make the new will.

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

The man who cannot write and who is obliged to make his mark simply therefor,
upon the will, is held to "sign" as effectually as if he had written his initials or his full name.
It would seem to be sufficient, under the law requiring a signature by the person making a
will, to make his mark, to place his initials or all or any part of his name thereon. In the
present case we think the proof shows, by a large preponderance, that Tomasa Elizaga Yap
Caong, if she did not sign her full name, did at least sign her given name "Tomasa," and that
is sufficient to satisfy the statute.

93
ROSA K. KALAW, petitioner, v. HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the
CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
G.R. No. L-40207 September 28, 1984
FIRST DIVISION
PONENTE: MELENCIO-HERRERA, J.

FACTS: Private respondent GREGORIO K. KALAW, claiming to be the sole heir of his
deceased sister, Natividad K. Kalaw, filed a petition for the probate of her holographic Will
executed on December 24, 1968. The holographic Will, as first written, named ROSA K.
Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner
ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained
alterations, corrections, and insertions without the proper authentication by the full
signature of the testatrix as required by Article 814 of the Civil Code. ROSA's position was
that the holographic Will, as first written, should be given effect and probated so that she
could be the sole heir thereunder. Respondent Judge denied probate. GREGORIO moved for
reconsideration arguing that since the alterations and/or insertions were the testatrix, the
denial to probate of her holographic will would be contrary to her right of testamentary
disposition. Reconsideration was likewise denied on the ground that "Article 814 of the
Civil Code being, clear and explicit, (it) requires no necessity for interpretation."

ISSUE: Whether or not the original unaltered text after subsequent alterations and/or
insertions will be deemed voided.

HELD: Yes. Such alterations and/or insertions will have the effect of voiding or revoking
the original will provided that such alterations or insertions will be authenticated in the
manner prescribed by law.

Ordinarily, when a number of erasures, corrections, and interlineations made by the

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

As in the ruling in the Velasco case, must be held confined to such insertions,

cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of
the altered words themselves but not the essence and validity of the Will itself. As it is, with
the erasures, cancellations and alterations made by the testatrix herein, her real intention
cannot be determined with certitude.

94
 Estate of Miguel Mamuyac, deceased. 
FRANCISCO GAGO, petitioner-appellant, 
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA, 
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
G.R. No. L-26317      January 29, 1927
EN BANC
PONENTE: JOHNSON, J.

FACTS: Francisco Gago filed a petition for the probate of a will executed by Miguel
Mamuyac on July 27, 1918. The oppositors alleged that the said will was already annulled
and revoked. It appeared that on April 16, 1919, the deceased executed another will. The
lower court denied the probate of the first will on the ground of the existence of the second
will. Another petition was filed to seek the probate of the second will. The oppositors
alleged that the second  will presented was merely a copy. According to the  witnesses, the
said will was allegedly revoked as per the testimony of Jose Tenoy, one of the witnesses
who typed the document. Another witness testified that on December 1920 the original will
was actually cancelled by the testator.The lower court denied the probate and held that the
same has been annulled and revoked.

ISSUE: Whether or not there was a valid revocation of the will.

HELD: Yes. The will was already cancelled in 1920. This was inferred when after due
search, the original will cannot be found. Where a will which cannot be found is shown to
have been in the possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had ready access to the will and it
cannot be found after his death. It will not be presumed that such will has been destroyed
by any other person without the knowledge or authority of the testator. The force of the
presumption of cancellation or revocation by the testator, while varying greatly, being weak
or strong according to the circumstances, is never conclusive, but may be overcome by
proof that the will was not destroyed by the testator with intent to revoke it.

In view of the fat that the original will of 1919 could not be found after the death of
the testator Miguel Mamuyac and in view of the positive proof that the same had been
cancelled, we are forced to the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence. In a proceeding to probate a will the burden of
proofs is upon the proponent clearly to establish not only its execution but its existence.
Having proved its execution by the proponents, the burden is on the contestant to show
that it has been revoked. In a great majority of instances in which wills are destroyed for
the purpose of revoking them there is no witness to the act of cancellation or destruction
and all evidence of its cancellation perishes with the testator. Copies of wills should be
admitted by the courts with great caution. When it is proven, however, by proper
testimony that a will was executed in duplicate and each copy was executed with all the
formalities and requirements of the law, then the duplicate may be admitted in evidence
when it is made to appear that the original has been lost and was not cancelled or
destroyed by the testator.

95
 TESTATE ESTATE OF THE DECEASED DAMASA CRISOSTOMO. NAZARIO
TRILLANA, administrator-appellee, 
vs.
CONSORCIA P. CRISOSTOMO, ET ALS, petitioners-appellants.
G.R. No. L-3378             August 22, 1951
EN BANC
PONENTE: FERIA, J.

FACTS: The deceased, Damasa Crisostomo, allegedly made two wills: one will was made on
August 16, 1948 and the other will was executed on October 19, 1948. Trillana, the
administrator of the estate, presented the subsequent will executed on October 19 for
probate, and was granted by the court. Crisostomo and others, claiming to be nephews and
nieces of the deceased, filed a petition for relief of the judgment rendered by the
probate court to disallow the subsequent will and allow the former will executed
on  August 16, alleging that the proceedings during the probate of the subsequent will was
attended by fraud. Appellants argue that they are interested parties and therefore may
appeal in the present case, because in the event the will of October 19 is disallowed and
that of August 16 is allowed, and the legacies in the latter are declared invalid or the
legatees incapable to inherit, the legacies will go to the appellants. Appellee contented that
the will of August 16, 1948 was expressly and absolutely revoked by the will of October 19,
1948, executed by the same executrix or deceased. The probate of the subsequent will was
not attended by fraud and the appellants show no proof of the alleged fraud committed in
the probate of the subsequent will.

ISSUE: Whether or not a revoked will must be included in the probate of the
subsequent will.

HELD: No. If two wills are presented for allowance but one of them is a revoked will, such
revoked will cannot be included in the probate of the latter subsequent will, because it
would be a waste of time to allow the revoked will if the subsequent revoking will is
allowed. The revoked will may be probated and allowed only if the subsequent revoking
will is disallowed.

Under sec. 3 of Rule 77, the Court shall set aside a date for proving a will even
without petition when it is delivered to the, court having jurisdiction, as contended by the
appellants, the lower court was right in not setting a date for proving the will of August 16,
1948, because this will was expressly and absolutely revoked by the will of October 19,
1948, executed by the same executrix or deceased, which was filed for allowance on
November 1, 1948, with the same Court of First Instance of Bulacan. According to the
attorneys for the appellant, the will dated August 16, 1948, was sent together with a writing
called "Manifestation" by registered mail on October 30, 1948, from Manila to the Court of
First Instance of Bulacan, by Attorney Mr. Tomas V. Barnes, and said will must have been
received by the Clerk of Said Court on or after November 1, 1948, the date when the
subsequent will of October 19, was filed for probate.

In civil actions and special proceedings, unless otherwise provided by law, the
interest in order that a person may be a party on appeal must be material and direct, so
that he will be materially and directly benefited or injured by the court's order, decree or
judgment: and not indirect or contingent. The interest claimed by the appellants is purely
contingent or dependent upon several uncertain and future events to 1) The disallowance
of the will of October 19, 1948; 2)The allowance of the will of August 16, 1948; and 3)
invalidation of certain legacies left in said will of August 16, 1948.

96
 HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P.
Llonillo, petitioners, vs. VICENTA UMENGAN, respondent.
G.R. No. 168156     December 6, 2006
FIRST DIVISION
PONENTE: CALLEJO, SR., J.

FACTS: Vicenta Umengan filed a complaint for unlawful detainer alleging that the plaintiffs
were the owners of the property. The defendants were allegedly possessing the property
by mere tolerance. In their defense, they alleged that they have a better right because they
inherited it from their father, showing a Last Will and Testament which has not yet been
probated. Both the MTC and RTC ruled that with the will, they have a better right, but the
Court of Appeals reversed such decision on the ground that the will has not yet been
probated, hence, it has no passed any right. In this case, both parties were claiming to have
better right of possession due to ownership. One party claiming that there was conveyance;
the other, having inherited it. Hence, claiming a better right of possession following the law
on succession.

ISSUE: Whther or not a last will and testament which has not yet been probated can be the
source of any right.

HELD: No. The Last Will and Testament cannot be relied upon to establish the right of
possession without having been probated, the said last will and testament could not be the
source of any right. The Court in apevious case held that “before any will can have force or
validity it must be probated. To probate a will means to prove before some officer or
tribunal, vested by law with authority for that purpose, that the instrument offered to be
proved is the last will and testament of the deceased person whose testamentary act it is
alleged to be, and that it has been executed, attested and published as required by law, and
that the testator was of sound and disposing mind. It is a proceedings to establish the
validity of the will. Moreover, the presentation of the will for probate is mandatory and is a
matter of public policy.”

It was likewise previously held that “a will is essentially ambulatory; at any time
prior to the testator’s death, it may be changed or revoked; and until admitted to probate, it
has no effect whatever and no right can be claimed thereunder, the law being quite explicit:
‘No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.”

Since the will has not yet been probated, it has no effect whatsoever and it cannot be
the basis of any claim of any right of possession. The defendants have a better right of
possession based on the deed of conveyances executed by the owner in favor of the
children, the defendants herein. 

97
 SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners, vs. COURT OF
APPEALS and REMEDIOS S. EUGENIO-GINO,respondents.
G.R. No. 115925    August 15, 2003
FIRST DIVISION
PONENTE: CARPIO, J.

FACTS: Petitioner Consolacion Sioson and respondent Remedios S. Eugenio-Gino are the
niece and granddaughter, respectively, of the late Canuto Sioson. Canuto and 11 other
individuals, including his sister Catalina Sioson and his brother Victoriano Sioson were co-
owners of a parcel of land in Tanza, Navotas, Metro Manila. The property had an area of
9,347 square meters and was covered by Original Certificate of Title No. 4207 issued by the
Register of Deeds of Rizal. Catalina, Canuto and Victoiano each owned an aliquot 10/70
share or 1,335 square meters of Lot 2. Canuto and Consolacion executed a Kasulatan ng
Bilihang Tuluyan which states that Canuto sold his 10/70 share in Lot 2 in favor of
Consolacion for P2,250.00.

Remedios filed a complaint against Consolacion and her spouse Ricardo Pascual in for
Annulment or Cancellation of Transfer Certificate of Title and Damages. Remedios claimed
that she is the owner of Lot Nos. 2-A and 2-E because Catalina devised these lots to her in
her last will and testament. Remedios added that Consolacion obtained title to these lots
through fraudulent means since the area is twice the size of Canuto’s share in Lot 2.

ISSUE: Whether or not Remedios is a real paty-in-interest in the absence of any order by
the court admitting said will for probate.

HELD: No. Remedios is not a real party-in-interest who can file the complaint, as the trial
court correctly ruled. The 1997 Rules of Civil Procedure require that every action must be
prosecuted or defended in the name of the real party-in-interest who is the party who
stands to benefit or suffer from the judgment in the suit. If one who is not a real party-in-
interest brings the action, the suit is dismissible for lack of cause of action.

Remedios anchored her claim over Lot Nos. 2-A and 2-E, or over its one-half portion on
the devise of these lots to her under Catalina’s last will. However, the trial court found that
the probate court did not issue any order admitting the last will to probate.

Article 838 of the Civil Code states that “No will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court.” This Court
has interpreted this provision to mean, “until admitted to probate, a will has no effect
whatever and no right can be claimed thereunder.” Remedios anchors her right in filing
this suit on her being a devisee of Catalina’s last will.  However, since the probate court has
not admitted Catalina’s last will, Remedios has not acquired any right under the said last
will. Remedios is thus without any cause of action either to seek reconveyance of Lot Nos.
2-A and 2-E or to enforce an implied trust over these lots.

98
 MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, MARITES AGAPE,
ESTABANA GALOLO, and CELSA AGAPE, petitioners, vs. COURT OF APPEALS
AND JULIO VIVARES, respondents.
G.R. No. 124099   October 30, 1997
SECOND DIVISION
PONENTE: TORRES, JR., J.

FACTS: Torcuato J. Reyes executed his last will and testament consisted of two pages and
was signed by Torcuato Reyes in the presence of three witnesses: Antonio Veloso, Gloria
Borromeo, and Soledad Gaputan.  The recognized natural children of Torcuato Reyes with
Estebana Galolo, and the deceased’s natural children with Celsa Agape, filed an opposition
with the following allegations: a) that the last will and testament of Reyes was not executed
and attested in accordance with the formalities of law; and b) that Asuncion Reyes Ebarle
exerted undue and improper influence upon the testator at the time of the execution of the
will.  The opposition further averred that Reyes was never married to and could never
marry Asuncion Reyes, the woman he claimed to be his wife in the will, because the latter
was already married to Lupo Ebarle who was still then alive and their marriage was never
annulled.  Thus Asuncion can not be a compulsory heir for her open cohabitation with
Reyes was violative of public morals.

ISSUE: Whether or not the Court in a probate proceeding may  rule upon the intrinsic
validity or efficacy of the provisions of the will.

HELD: No. As a general rule, courts in probate proceedings are limited to pass only upon
the extrinsic validity of the will sought to be probated.  Thus, the court merely inquires on
its due execution, whether or not it complies with the formalities prescribed by law, and
the testamentary capacity of the testator.  It does not determine nor even by implication
prejudge the validity or efficacy of the will’s provisions. The intrinsic validity is not
considered since the consideration thereof usually comes only after the will has been
proved and allowed.  However, there are notable circumstances wherein the intrinsic
validity was first determined as when the defect of the will is apparent on its face and the
probate of the will may become a useless ceremony if it is intrinsically invalid. The intrinsic
validity of a will may be passed upon because “practical considerations” demanded it as
when there is preterition of heirs or the testamentary provisions are doubtful legality.
Where the parties agree that the intrinsic validity be first determined, the probate court
may also do so. Parenthetically, the rule on probate is not inflexible and absolute. Under
exceptional circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the will.

99
 ALFREDO G. BALUYUT, petitioner, 
vs.
HON. ERNANI CRUZ PAÑO, ENCARNACION LOPEZ VDA. DE BALUYUT, JOSE ESPINO and
CORAZON ESPINO, respondents.
G.R. No. L-42088 May 7, 1976
SECOND DIVISION
PONENTE: AQUINO, J.

FACTS: Soltero Baluyut died at the age of 86, leaving an estate valued at not less than
Php2M. A few weeks later, his nephew Alfredo Baluyut filed a verified petition for the
issuance of letters of administration in his favor, alleging that Encarnacion Lopez Baluyut,
Soltero’s widow, was mentally incapable of acting as administratrix of the decedent ’s
estate. Believing that Soltero executed a will, Alfredo prayed that he be appointed as special
administrator in the meantime. The Court granted Alfredo’s petition.
Mrs. Baluyut filed an opposition claiming that the allegation as to her mental
incapacity was libelous, and that she was unaware that her husband executed a will.
Finding that Mrs. Baluyut was mentally qualified, the CFI cancelled Alfredo’s appointment.
During the course of the proceedings, the alleged will of the decedent was apparently
discovered and presented to the court. Although the decision did not dwell on the contents
of the will and the manner through which it was discovered, the decision did mention that
Alfredo was named a legatee therein, giving him standing to question the qualifications of
the administratrix.

ISSUE: Whether or not a hearing is necessary to determine Mrs. Baluyot’s mental fitness to
be designated an an executor or admintratror.

HELD: Yes. A hearing is necessary in order to determine the suitability of the person to be
appointed administrator by giving him the opportunity to prove his qualifications and
affording oppositors a chance to contest the petition. Whether Sotero Baluyut died testate
or intestate, it is imperative in the interest of the orderly administration of justice that a
hearing be held to determine Mrs. Baluyut's fitness to act as executrix or administratrix.
Persons questioning her capacity should be given an adequate opportunity to be heard and
to present evidence.

It is likewise necessary to convert the proceeding in the lower court into a

testamentary proceeding. The probate of the will cannot be dispensed with and is a matter
of public policy. After the will is probated, the prior letters of administration should be
revoked and proceedings for the issuance of letters testamentary or of administration
under the will should be conducted.

100
 ROSA CAYETANO CUENCO, petitioners, 
vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO, LOURDES
CUENCO, CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO, CONSUELO CUENCO
REYES, and TERESITA CUENCO GONZALEZ, respondents.
G.R. No. L-24742 October 26, 1973
EN BANC
PONENTE: TEEHANKEE, J.

FACTS: Senator Mariano Jesus Cuenco died in Manila. He was survived by his widow and
two minor sons, residing in Quezon City, and children of the first marriage, residing in
Cebu. Lourdes, one of the children from the first marriage, filed a Petition for Letters of
Administration with the Court of First Instance Cebu, alleging that the senator died
intestate in Manila but a resident of Cebu with properties in Cebu and Quezon City.
The petition still pending with CFI Cebu, Rosa Cayetano Cuenco, the second wife, filed
a petition with CFI Rizal for the probate of the last will and testament, where she was
named executrix. Rosa also filed an opposition and motion to dismiss in CFI Cebu but this
court held in abeyance resolution over the opposition until CFI Quezon shall have acted on
the probate proceedings. Lourdes filed an opposition and motion to dismiss in CFI Quezon,
on ground of lack of jurisdiction and/or improper venue, considering that CFI Cebu already
acquired exclusive jurisdiction over the case. The opposition and motion to dismiss were
denied. Upon appeal CA ruled in favor of Lourdes and issued a writ of prohibition to CFI
Quezon.

ISSUE: Whether or not CFI Quezon acted without jurisdiction or grave abuse of discretion
in taking cognizance and assuming exclusive jurisdiction over the probate proceedings in
pursuance to CFI Cebu's order expressly consenting in deference to the precedence of
probate over intestate proceedings.

HELD: Yes. The Supreme Court found that CA erred in law in issuing the writ of prohibition
against the Quezon City court from proceeding with the testate proceedings and annulling
and setting aside all its orders and actions, particularly its admission to probate of the last
will and testament of the deceased and appointing petitioner-widow as executrix thereof
without bond pursuant to the deceased testator's wish.

Under Rule 73, the court first taking cognizance of the settlement of the estate of a

decent, shall exercise jurisdiction to the exclusion of all other courts. The residence of the
decent or the location of his estate is not an element of jurisdiction over the subject matter
but merely of venue. If this were otherwise, it would affect the prompt administration of
justice. The court with whom the petition is first filed must also first take cognizance of
the settlement of the estate in order to exercise jurisdiction over it to the exclusion of all
other courts.

101
 TESTATE ESTATE OF THE LATE GREGORIO VENTURA MARIA VENTURA, executrix-
appellant, MIGUEL VENTURA and JUANA CARDONA, heirs-appellants, 
vs.
GREGORIA VENTURA and HER HUSBAND, EXEQUIEL VICTORIO, MERCEDES VENTURA
and HER HUSBAND, PEDRO D. CORPUZ, oppositors-appellees.
G.R. No. L-26306 April 27, 1988
SECOND DIVISION
PONENTE: PARAS, J.

FACTS: Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio
Ventura while Miguel Ventura and Juana Cardona are his son and saving spouse who are
also the brother and mother of Maria Ventura. On the other hand, appellees Mercedes and
Gregoria Ventura are the deceased's legitimate children with his former wife, the late
Paulina Simpliciano but the paternity of appellees was denied by the deceased in his will

Gregorio Ventura filed a petition for the probate of his will which did not include the
appellees. In the said will, the appellant Maria Ventura, although an illegitimate child, was
named and appointed by the testator to be the executrix of his will and the administratrix
of his estate.

Appellees filed a joint motion on the grounds that Maria Ventura are: 1) that she is grossly
incompetent; 2) that she has maliciously and purposely concealed certain properties of the
estate in the inventory; 3) that she is merely an illegitimate daughter who can have no
harmonious relations with the appellees; 4) that the executrix has neglected to render her
accounts and failed to comply with the Order of the Court; and 5) that she is with
permanent physical defect hindering her from efficiently performing her duties as an
executrix.

ISSUE: Whether or not the removal of Maria Ventura as executrix is legally justified. 

HELD: Yes. The surviving spouse of the deceased Gregorio Ventura is Juana Cardona while
the next of kin are: Mercedes and Gregoria Ventura and Maria and Miguel Ventura. The
"next of kin" has been defined as those persons who are entitled under the statute of
distribution to the decedent's property. It is generally said that "the nearest of kin, whose
interest in the estate is more preponderant, is preferred in the choice of administrator.
Among members of a class the strongest ground for preference is the amount or
preponderance of interest. As between next of kin, the nearest of kin is to be preferred.

Mercedes and Gregoria Ventura are the legitimate children of Gregorio Ventura and
his wife, the late Paulina Simpliciano. Therefore, as the nearest of kin of Gregorio Ventura
they are entitled to preference over the illegitimate children of Gregorio Ventura, namely:
Maria and Miguel Ventura. Hence, under the aforestated preference provided in Section 6
of Rule 78, the person or persons to be appointed administrator are Juana Cardona, as the
surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana Cardona
and Mercedes and Gregoria Ventura in the discretion of the Court, in order to represent
both interests.

102
 ERNESTO M. GUEVARA, petitioner-appellant, 
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.
G.R. No. L-48840 December 29, 1943

EN BANC
PONENTE: OZAETA, J.

FACTS: Victorino Guevara executed a will in 1931 wherein he made various bequests t his
wife, stepchildren, wife in the 2nd marriage. He has a legitimate son Ernesto and a natural
daughter Rosario. Therein, he acknowledged Rosario as his natural daughter. In 1933,
Victorino died but his last will was never presented for probate nor was there any
settlement proceeding initiated. It appeared that only his son Ernest possessed the land
which he adjudicated to himself. While Rosario who had the will in her custody, did nothing
to invoke the acknowledgment, as well as the devise given to her. Subsequently, Rosario
filed an action for the recovery of her legitime from Ernesto, a portion of a large parcel of
land invoking the acknowledgment contained in the will and based on the assumption that
the decedent died intestate because his will was not probated. She alleged that the
disposition in favor of Ernesto should be disregarded. The lower court and the Court of
Appeals sustained Rosario's theory.

ISSUE: Whether or not the probate of a will can be dispensed with.

HELD: No. Rosario's contention violates procedural law and considered an attempt to
circumvent the last will and testament of the decedent. The presentation of a will to the
court for probate is mandatory and its allowance is essential and indispensable to its
efficacy. Suppression of the will is contrary to law and public policy for without probate,
the right of a person to dispose of his property by will may be rendered nugatory.
In the instant case, there is no showing that the various legatees other than the
present litigants had received their respective legacies or that they had knowledge of the
existence and of the provisions of the will. Their right under the will cannot be disregarded,
nor may those rights be obliterated on account of the failure or refusal of the custodian of
the will to present it to the court for probate.

Even if the decedent left no debts and nobody raises any question as to the
authenticity and due execution of the will, none of the heirs may sue for the partition of the
estate in accordance with that will without first securing its allowance or probate by the
court, first, because the law expressly provides that "no will shall pass either real or
personal estate unless it is proved and allowed in the proper court"; and, second, because
the probate of a will, which is a proceeding in rem, cannot be dispensed with the
substituted by any other proceeding, judicial or extrajudicial, without offending against
public policy designed to effectuate the testator's right to dispose of his property by will in
accordance with law and to protect the rights of the heirs and legatees under the will thru
the means provided by law, among which are the publication and the personal notices to
each and all of said heirs and legatees. Nor may the court approve and allow the will
presented in evidence in such an action for partition, which is one in personam, any more
than it could decree the registration under the Torrens system of the land involved in an
ordinary action for reinvindicacion or partition.

103
 Probate of the late Rev. P. Eleuterio Pilapil.
ADRIAN MENDOZA, petitioner and appellee,
v.
Pilapil CALIXTO AND OTHERS, opponents and appellants.
G. R. No. L-47931  June 27, 1941
EN BANC
PONENTE: DIAZ, J.

FACTS: Eleuterio P. Pilapil, parish priest of Mualboal of the Province of Cebu died. His
brother Calixto Pilapil, having presented no will, asked to be the administrator of the
deceased’s estate. Adrian Mendoza, appellee, opposed the probate on the ground that the
decedent appointed him to be the executor/administrator of his estate. Appellee submitted
the alleged last will and testament of the deceased calling for its legalization. Appellants
filed their opposition on the ground that the will contains erasures and alterations; that the
language, Spanish, in which the will was written was not known to the testator, and that
one of the clauses of the document is no prohibition that aired on slab Courts.

ISSUE: Whether or not the disposition in the will that “it shall not be heard by the Court”
can strip the Court of its authority to determine the allowance or disallowance for probate
of the subject will.

HELD: No. The disposition of the testator that his "Last Will and Testament not be heard
by the court" cannot strip the courts of their authority to determine the allowance or
disallowance of the said will. There are stakeholders in one way or another involved in the
issue, which may confer or remove the jurisdiction and authority to resolve the issues that
needed to be resolved and decided. It is just proper to take into consideration that as a
general rule, all wills executed by the testator must be presented or submitted to the Court
in order to determine its validity and to determine that the person to whom its custody has
been entrusted has the authority to dispose of the deceased’s estate in accordance with the
provisions of the will. Moreover, the testator not being a lawyer, it is of no wonder that he
is not fully aware of the rules and requirements prescribed by law concerning the
execution of a will, and that he believed that it is okay to use his own words to ban or
prohibit the Court from exercising its authority over his will.

The Court also held that strict compliance with the substantive requirements
prescribed by law must be observed in order to ensure its authenticity, but at the same
time, they should not be considered defects that should not affect this purpose and the
other part, be taken into account, and could thwart the will of the testator. It should not be
allowed to hinder the legal formalities employing good common sense in the consideration
of wills and to frustrate the wishes of the deceased solemnly expressed in their wills, as to
which there is not even granting shadow of bad faith or fraud

104