Rule 76-ALLOWANCE OR DISALLOWANCE OF WILLS

G.R. No. L-23135. December 26, 1967.

TESTATE ESTATE OF HILARION RAMAGOSA. MARIANO SUMILANG, Petitioner-
Appellee, v. SATURNINA RAMAGOSA, SANTIAGO RAMAGOSA, ENRIQUE
PABELLA, LICERIA PABELLA and ANDREA RAVALO, Oppositors-Appellants.

Facts:

On July 5, 1960 Mariano Sumilang filed in the CFI a petition for the probate of a document
alleged to be the last will and testament of Hilarion Ramagosa, who died on December 1, 1959.
Said document institutes petitioner as sole heir of the testator.

The petition for probate was opposed by two (2) sets of oppositors — appellants herein — who
questioned the due execution of the document, claiming that it was made under duress and was
not really intended by the deceased to be his last will and testament. Aside from merely opposing
the petition for probate, the first set of oppositors — Saturnino and Santiago Ramagosa — also
claimed that they, instead of petitioner, were entitled to inherit the estate of the deceased. The
other oppositors, representing themselves simply as next of kin, appropriately prayed only for the
disallowance of the will.

However, on July 3, 1961 oppositors moved for the dismissal of the petition for probate mainly
on the ground that "the court lacks jurisdiction over the subject-matter because the last will and
testament of the decedent, if ever it was really executed by him, was revoked by implication of
law six years before his death." Oppositors alleged that after making the will Hilarion Ramagosa
sold to petitioner Mariano Sumilang and his brother Mario the parcels of land described therein,
so that at the time of the testator’s death the titles to said lands were no longer in his name.

The CFI denied the motion to dismiss stating that the allegations contained therein go to the very
intrinsic value of the will and other grounds stated on said motion to dismiss are without merit.
With respect to the motion to strike out opposition and all other pleadings of oppositors filed by
the petitioner, the CFI found that oppositors have no relationship whatsoever within the fifth
degree as pronded by law and therefore the oppositors are totally strangers to the deceased whose
will is under probate.

Issue:

1. Whether the probate court should pass upon the intrinsic validity of the will.
2. Whether or not oppositors are allowed to intervene

Ruling:

1. Yes.

The petition below being for the probate of a will, the court’s area of inquiry is limited to the
extrinsic validity thereof. The testator’s testamentary capacity and the compliance with the
formal requisites or solemnities prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the
will or the legality of any devise or legacy is premature.

The alleged revocation implied from the execution of the deeds of conveyance in favor of the
testamentary heir is plainly irrelevant to and separate from the question of whether the testament
was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all
questions of revocation become superfluous: in law, there is no such will and hence there would
be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an
express one, but merely implied from subsequent acts of the testatrix allegedly evidencing an
abandonment of the original intention to bequeath or devise the properties concerned. As such,
the revocation would not affect the will itself, but merely the particular devise or legacy.

2. No.

It is a well-settled rule that in order that a person may be allowed to intervene in a probate
proceeding, he must have an interest in the estate, or in the will, or in the property to be affected
by it either as executor or as a claimant of the estate; and an interested party has been defined as
one who would be benefited by the estate such as an heir or one who has a claim against the
estate like a creditor.

The reason for the rule excluding strangers from contesting the will, is not that thereby the court
maybe prevented from learning facts which would justify or necessitate a denial of probate, but
rather that the courts and the litigants should not be molested by the intervention in the
proceedings of persons with no interest in the estate which would entitle them to be heard with
relation thereto.

The Court affirmed the decision of the CFI.

G.R. No. L-39247. June 27, 1975.

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY,
JR., Petitioner, v. HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance
of Davao Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, Respondents.

Facts:

Leodegaria Julian died testate leaving her husband and 6 children as heirs. Her son Felix
Balanay, Jr. filed a petition for the probate of her will contained declarations of her ownership of
the southern half of their conjugal properties and that her properties be left undivided during her
husband’s lifetime and the heirs’ legitimes be satisfied from the fruits of the properties. Felix
Balanay, Sr., though initially opposed to the probate for he was preterited, later on relented and
renounced his share in her estate. The CFI gave effect to the widower’s conformity and
appointed its clerk of court as special administrator. When a purported lawyer for Felix Balanay,
Jr. came and filed a motion for leave of court to withdraw probate of the will, the CFI declared
the will void and converted the testate proceedings into intestate proceedings and ordered the
issuance of notice to creditors. Felix Balanay, Jr. asked that the lower court reconsider alleging
that the purported lawyer was terminated hence the withdrawal of the probate was unauthorized.
When this was denied, the recourse was to the SC.

Issue: Whether or not the probate court erred in passing upon the intrinsic validity of the will
before ruling on its formal validity.

Ruling:

The SC ruled that in view of certain unusual provisions in the will, which are of dubious legality
and because of the motion to withdraw assumed to have been filed with authorization, the trial
court acted correctly in passing upon the will’s intrinsic validity before formal validity can be
established. The probate of the will might become an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations demand that the intrinsic validity of the will be
passed upon before it is probated, the court should meet the issue.

But the probate court erred when it converted the proceedings from testate to intestate despite the
fact that it gave effect to the conformity of the widower. The rule is that the invalidity of some of
the dispositions will not result in the invalidity of the other dispositions unless it is presumed that
the testator would not have made such other dispositions if the first invalid disposition had not
been made. The illegal dispositions such as the statement of the testatrix claiming ownership of
the southern part of the conjugal lands and the provision that her properties be left undivided
contrary to law does not nullify the entire will. Such may be disregarded. But by reason of the
widower’s conformity, it had the effect of validating the partition in the will without prejudice to
the rights of the creditors and the legitimes of the compulsory heirs. Hence the lower court erred
when it did not proceed with the probate. Except in extreme cases where the will on its face is
intrinsically void, it is the probate court’s duty to pass first upon the validity of the will.

G.R. No. L-56340. June 24, 1983.

SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE
PASTOR, Petitioners, v. THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF
BRANCH I, COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT
OF FIRST INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, Respondents.

Facts:

Spouses Alvaro Pastor, Sr. (PASTOR, SR.) and his wife Sofia Bossio were survived by their two
legitimate children, Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), as
well as an illegitimate child Lewellyn Barlito Quemada (QUEMADA).

QUEMADA filed a petition for the probate and allowance of an alleged holographic will of
PASTOR, SR. with the CFI of Cebu, (PROBATE COURT). The will contained only one
testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s
42% share in the operation by Atlas Consolidated Mining and Development Corporation
(ATLAS).
The PROBATE COURT appointed QUEMADA as a special administrator of the entire estate of
PASTOR, SR. QUEMADA instituted against PASTOR, JR. and his wife an action for
reconveyance of alleged properties of the estate, which included the properties subject of the
legacy which were in the names of PASTOR, JR. and his wife, Maria Elena Achaval de Pastor,
who claimed to be the owners thereof in their own rights, and not by inheritance. PASTOR, JR.
and his sister SOFIA filed their opposition to the petition for probate and the order appointing
QUEMADA as special administrator. The PROBATE COURT issued an order allowing the will
to probate. The CA affirmed the said decision. On petition for review, the SC dismissed the
petition in a minute resolution and remanded the same to the PROBATE COURT after denying
reconsideration.

QUEMADA asked for payment of his legacy and seizure of the properties subject of said legacy.
PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the
reconveyance suit. All pleadings remained unacted upon by the PROBATE COURT.Later on,
the PROBATE COURT required the parties to submit their respective position papers
as to how much inheritance QUEMADA was entitled to receive. PASTOR. JR. and SOFIA
manifested that determination of how much QUEMADA should receive was still premature.
ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the Pastor
Group. The statement revealed that of the mining claims being operated by ATLAS,
60%pertained to the Pastor Group distributed as follows:

1. A. Pastor, Jr. ...................................40.5%

2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%

On August 20, 1980, while the reconveyance suit was still being litigated, the PROBATE
COURT issued the assailed Order of Execution and Garnishment, resolving the question of
ownership of the royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA
was NOT INOFFICIOUS. The PROBATE COURT directed ATLAS to remit directly to
QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was authorized to
retain 75% for himself as legatee and to deposit 25% with a reputable banking institution for
payment of the estate taxes and other obligations of the estate. The 33% share of PASTOR,
JR. and/or his assignees was ordered garnished to answer for the accumulated legacy of
QUEMADA from the time of PASTOR, SR.'s death. The order being "immediately
executory", QUEMADA succeeded in obtaining a Writ of Execution and Garnishment,
serving the same on ATLAS on the same day. The oppositors sought reconsideration thereof on
the ground that the PROBATE COURT gravely abused its discretion when it resolved the
question of ownership of the royalties and ordered the payment of QUEMADA's legacy after
prematurely passing upon the intrinsic validity of the will.

In the meantime, the PROBATE COURT ordered suspension of payment of all royalties due
PASTOR, JR. and/or his assignees until after resolution of oppositors' motion for
reconsideration.Before the Motion for Reconsideration could be resolved, PASTOR, JR. and his
wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for
certiorari and Prohibition with a prayer for writ of preliminary injunction, assailing the writ of
execution and garnishment issued by the Probate Court. Said petition was denied as well as their
motion for reconsideration. Hence, this Petition for Review by certiorari.

ISSUE: Whether or not the Probate Court was correct when it ruled on the issues of the intrinsic
validity of the will and ownership of the mining claims.

RULING:

No, it was not resolved by the Probate Court in the case at bar.

In a special proceeding for the probate of a will, the issue by and large is restricted to the
extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the
will in accordance with the formalities prescribed by law. As a rule, the question of ownership is
an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the purpose
of determining whether a certain property should or should not be included in the inventory of
estate properties, the Probate Court may pass upon the title thereto, but such determination is
provisional, not conclusive, and is subject to the final decision in a separate action to resolve
title.

Nowhere in the dispositive portion is there a declaration of ownership of specific properties. It

confined itself to the question of extrinsic validity of the will, and the need for and propriety of
appointing a special administrator. It allowed and approved the holographic will with respect to
its extrinsic validity and declared that the intestate estate administration aspect must
proceed “subject to the outcome of the suit for reconveyance of ownership and possession of real
and personal properties.”

The Probate Order did not resolve the question of ownership of the properties listed
in the estate inventory, considering that the issue of ownership was the very subject of
controversy in the reconveyance suit that was still pending.It was, therefore, error for the assailed
implementing Orders to conclude that the Probate Order adjudged with finality the question of
ownership of the mining properties and royalties, and that, premised on this conclusion, the
dispositive portion of the said Probate Order directed the special administrator to pay the legacy
in dispute.

G.R. No. 12184           September 27, 1917

THE UNITED STATES, plaintiff-appellee, vs. CHIU GUIMCO, defendant-appellant.

Facts:

Joaquin Cruz, a chinese merchant living for many years in the municipality of Gingoog, Province
of Misamis, died while visiting China. Before his departure from the Philippines he had executed
a will before Anastacio Servillon, a notary public, in which Chiu Guimco and Co-Iden were
named as executors. Chiu Guimco is Joaquin Cruz’s brother.
Guimco, as attorney in fact and manager of the estate of his deceased brother, entered into an
agreement with his brother’s Filipina wife, whereby she relinquished her claims to the estate for
a consideration. He also entered into an agreement with Uy Cuan, his brother’s Chinese wife, for
the distribution of the estate and for the payment of rentals on her interest in the real estate. No
payments have, however, been made by Guimco.

Ramon Contreras, acting on behalf of Uy Cuan, wrote a letter to Guimco urging him to produce
the will of the decedent for the institution of lawful proceedings in accordance therewith.
Guimco replied that the will in question had never been in his possession and that he had never
seen it.

A complaint was filed under section 628 of the Code of Civil Procedure charging Guimco with
the failure to produce the will within the time required by law. The court found the accused
guilty and imposed upon him a fine of P1800. Subsequently, the court, believing that the will
was in his possession, ordered him to produce it but Guimco still failed to do so. The court
ordered the confinement of Guimco in the provincial jail.

Issue: Whether the judge was acting within his power when he ordered the commitment of
Guimco to the provincial jail?

Ruling:

No. Section 629 of the Code of Civil Procedure (now section 5 of Rule 75), which allows
imprisonment of a person who neglects to deliver a will after the death of the testator without
reasonable cause, can only be applied when a court is acting in the exercise of its jurisdiction
over the administration of the estates of deceased persons. Where administration proceedings are
not already pending, the court, before taking action under this section, should require that there
be before it some petition, information, or affidavit of such character as to make action by the
court under this section appropriate.

The remedy provided in section 629 of the Code of Procedure is clearly a totally different
remedy, having no relation with that provided in section 628 (now section 4 of Rule 75). It is not
permissible in a prosecution under Sec. 628 to superimpose upon the penalty of fine therein
prescribed the additional penalty of imprisonment prescribed under Sec. 629.

To enforce the production of the will by the accused at a trial under Sec. 628 would virtually
compel him to convict himself, since the mere production of the will by him would be conclusive
that he had possession of it as charged in the criminal complaint. This would constitute an
infringement of the provision of law which says that in a criminal action the defendant shall be
exempt from testifying against himself.

G.R. No. L-21993. June 21, 1966.

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., Petitioners, v. HON. JUAN DE
BORJA, as Judge of the Court of FIRST Instance of Bulacan, Branch III, ANATOLIA
PANGILINAN and ADELAIDA JACALAN, Respondents.

Facts:

Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila. On March 4, 1963,
Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Court of Bulacan a purported
last will and testament of Fr. Rodriguez; that on March 8, 1963, Maria Rodriguez and Angela
Rodriguez, through counsel filed a petition for leave of court to allow them to examine the
alleged will; that on March 11, 1963 before the Court could act on the petition, the same was
withdrawn; that on March 12, 1963, aforementioned petitioners filed before the Court of First
Instance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging,
among other things, that Fr. Rodriguez was a resident of Parañaque, Rizal, and died without
leaving a will and praying that Maria Rodriguez be appointed as Special Administratrix of the
estate; and that on March 12, 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petition in
this Court for the probation of the will delivered by them on March 4, 1963. It was stipulated by
the parties that Fr. Rodriguez was born in Parañaque, Rizal; that he was Parish priest of the
Catholic Church of Hagonoy, Bulacan, from the year 1930 up to the time of his death in 1963;
that he was buried in Parañaque, and that he left real properties in Rizal, Cavite, Quezon City and
Bulacan.

The movants contend that since the intestate proceedings in the Court of First Instance of Rizal
was filed at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the Court of
First Instance of Bulacan at 11:00 A.M. on the same date, the latter Court has no jurisdiction to
entertain the petition for probate. The petitioners Pangilinan and Jacalan, on the other hand, take
the stand that the Court of First Instance of Bulacan acquired jurisdiction over the case upon
delivery by them of the will to the Clerk of Court on March 4, 1963, and that the case in this
Court therefore has precedence over the case filed in Rizal on March 12, 1963.

Issue:
1. Which court acquires jurisdiction over the settlement of Fr. Rodriguez’s estate?
2. Which proceeding should be preferred?

Ruling:

1. The SC ruled that the Bulacan Court of First Instance was entitled to priority in the settlement
of the estate in question and the intestate proceedings in the Rizal Court should be discontinued.

The jurisdiction of the Court of First Instance of Bulacan became vested upon the delivery
thereto of the will of the late Father Rodriguez on March 4, 1963, even if no petition for its
allowance was filed until later, because upon the will being deposited the court could, motu
proprio, have taken steps to fix the time and place for proving the will, and issued the
corresponding notices conformably to what is prescribed by section 3, Rule 76, of the Revised
Rules of Court (Section 3, Rule 77, of the old Rules):

The use of the disjunctive in the words "when a will is delivered to OR a petition for the
allowance of a will is filed" plainly indicates that the court may act upon the mere deposit therein
of a decedent's testament, even if no petition for its allowance is as yet filed. Where the petition
for probate is made after the deposit of the will, the petition is deemed to relate back to the time
when the will was delivered. Since the testament of Fr. Rodriguez was submitted and delivered
to the Court of Bulacan on March 4, while petitioners initiated intestate proceedings in the Court
of First Instance of Rizal only on March 12, eight days later, the precedence and exclusive
jurisdiction of the Bulacan court is incontestable.

The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any
other, that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it
were a case of wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of
Court, since the same enjoins that:

2. As long as there is a will, even if that will is found later and even if the proceeding for the
settlement of the estate of a person with a will is filed later, that should be preferred.  The will
should be probated.  The will should be given effect as much as possible in order to give effect to
the wishes of the testator.  The wishes of the testator must be given such preference first. 
Probate of the will is needed in order to determine whether or not the will was indeed valid,
whether or not the will was executed in observance with the formalities required by law and
whether or not the testator executed it with a sound mind. 

If later on in the probate proceeding, the will is found not to have validly executed, then you go
to intestate proceeding.  But first you go to testate. 

G.R. No. L-18753. March 26, 1965.

VICENTE B. TEOTICO, Petitioner-Appellant, v. ANA DEL VAL CHAN, ETC., Oppositor-
Appellant.

Facts:

Maria Mortera died on July 1955 leaving properties worth P600,000. She executed a will written
in Spanish, affixed her signature and acknowledged before Notary Public by her and the
witnesses. Among the legacies made in the will was the P20,000 for Rene Teotico who was
married to the testatrix‟s niece, Josefina Mortera. The usufruct of Maria‟s interest in
the Calvo Building were left to the said spouses and the ownership thereof was left in equal parts
to her grandchildren, the legitimate children of said spouses. Josefina was likewise instituted, as
sole and universal heir to all the remainder of her properties not otherwise disposed by will.
Vicente Teotico filed a petition for the probate of the will but was opposed by Ana del Val Chan,
claiming that she was an adopted child of Francisca (deceased sister of Maria) and
acknowledged natural child of Jose (deceased brother of Maria), that said will was not executed
as required by law and that Maria as physically and mentally incapable to execute the will at the
time of its execution and was executed under duress, threat, or influence of fear.

ISSUE:
 Whether or not defendant has right to intervene in this proceeding.

RULING:

No. It is a well-settled rule that in order that a person may be allowed to intervene in a probate
proceeding is that he must have an interest in the estate, will or in the property to be affected by
either as executor or as a claimant of the estate and be benefited by such as an heir or one who
has a claim against it as creditor. Under the terms of the will, defendant has no right to intervene
because she has no such interest in the estate either as heir, executor or administrator because it
did not appear therein any provision designating her as heir/ legatee in any portion of the estate.
She could have acquired such right if she was a legal heir of the deceased but she is not under
the CIVIL CODE. Even if her allegations were true, the law does not give her any right
to succeed the estate of the deceased sister of both Jose and Francisca because being
an illegitimate child she is prohibited by law from succeeding to the legitimate relatives of her
natural father and that relationship established by adoption is limited solely to the adopter and
adopted and does not extend to the relatives of the adopting parents except only as expressly
provided by law. As a consequence, she is an heir of the adopter but not of the relatives of
the adopter. Hence, defendant has no right to intervene either as testamentary or as legal heir in
the probate proceeding.
GR Nos. L-2963-4. December 27, 1951.
GUARDIANSHIP OF RUFINO CRISOSTOMO and his minor children of him RUFINO
CRISOSTOMO, JR., JUAN CRISOSTOMO, ROBERTO CRISOSTOMO, and GABRIEL
CRISOSTOMO. HERMOGENES C. FERNANDO, as Guardian of the minors, Petitioner-
Appellant , v. GERMAN CRISOSTOMO and PACITA FERNANDO, Oppositors-
Appellees .

INTESTATE ESTATE OF THE DECEASED SPOUSES RUFINO CRISOSTOMO and

PETRA FERNANDO, GERMAN CRISOSTOMO and PACITA FERNANDO,
administrators-appellees, v. HERMOGENES C. FERNANDO, as Guardian of the minors
RUFINO CRISOSTOMO, JR., JUAN CRISOSTOMO, ROBERTO CRISOSTOMO, and
GABRIEL CRISOSTOMO, Oppositor-Appellant.

Facts:

This case involved 2 cases.

One: Guardianship of Rufino Crisostomo and his 4 minor children. In this case, Hermogenes
Fernando was appointed guardian of Rufino and his 4 minor children. When Rufino died, the
children was left under the guardianship of Hermogenes. He then filed for the approval of an
extrajudicial settlement of the estate of the deceased parents of the minors which was denied by
the court ruling that the guardian of the children is not the administrator of the estate until and
after the said estate has been acquired by the minors by proper proceedings.

Two: Intestate estate of Sps. Crisostomo. German Crisostomo filed a petition as next on kin for
the opening of intestate proceedings of the estate of the deceased and the appointment of himself
and Pacita Fernando as co-administrators which was granted by the court.

Issue: W/N the court’s appointment of Crisostomo and Fernando as co-administrators is valid

Ruling:

YES!
No evidence is presented why the brother and sister of the deceased, as nearest of kin, should not
be appointed co-administrators of the Intestate Estate of said decedent either on account of their
incompetency or lack of moral qualifications.

G.R. No. 2308. April 30, 1906.

NIEVES ARAUJO, ET AL., Plaintiffs-Appellants, v. GREGORIA CELIS, Defendant-
Appellee.

Facts:

Rosario Araujo inherited from her mother, Asuncion, the hacienda known as Pangpang. She
subsequently married Jose Celis, Gregoria’s’s son. Rosario died leaving no descendants or
ascendants, but only collateral relatives. Such relatives asked that the property inherited by
Rosario from her mother be delivered to them. The property, however, is held by the Gregoria,
who took possession of the same after the death of her son Jose. He died a year after the death of
Rosario in l889.

The defendant claims that Rosario died leaving a will in which she bequeathed all of her property
to her husband, Jose, and that the latter having died without a will, she, therefore, succeeded to
all of his property, rights, and actions, thereby lawfully acquiring all the property that had
formerly belonged to her daughter-in-law. The problem, however, is that the will could not be
found alleging that insurgents had burned the Court of Pototan where the will was kept. She
instead offered secondary parol evidence as to its contents. CFI allowed the evidence over the
objection of the collateral relatives of Rosario and ruled in favor of Gregoria. Hence this appeal.

Issue: Whether or not secondary parol evidence is sufficient to prove Rosario’s will?

Ruling:

NO. The loss of the alleged original will has not been sufficiently established. The principal
witness, Calixto Delgado testified that he had acted as procurador for Gregoria in an action
brought against her by one Jose involving the hacienda of Pangpang, and that as such there came
into his possession a copy of the will of Rosario which was introduced in evidence in that action.
However, he likewise testified that he never saw the original of that will because the same was
retained by the notary. He likewise failed to affirm whether the copy in question was a simple or
certified copy. More importantly, he further testified that the will was signed by two witnesses
only. A will signed by two witnesses only could not under any circumstances be valid under the
law in force at the time referred to by the witness, and legally speaking such will could not then
have been probated or recorded.

As to the loss of the will, there is nothing to show that at the time these records were burned by
the insurgents there existed in the court-house of Pototan the copy of the will referred to.
Moreover, the testimony that all the notarial records were likewise burned as they were kept in
the same courthouse is inconclusive as the same is plainly and manifested contrary to the royal
decree concerning the organization of notaries, which provided that: “Notaries shall keep the
protocols and books in the same building where they live, in their custody, and shall be
responsible therefor.”

Their testimony is absolutely insufficient to establish in a satisfactory manner the loss of the
alleged will of Rosario Darwin, and the court below should not have, therefore, allowed the
secondary evidence introduced by her as to the contents of the will, particularly in view of the
fact that, as it appears from the record, there had been pending since 1889 an action to declare
this very will null and void.

G.R. No. 44276. November 25, 1936.

In re will of the deceased Jose B. Suntay. MARIA NATIVIDAD LIM BILLIAN, Petitioner-
Appellant, v. APOLINARIO SUNTAY, ANGEL SUNTAY, MANUEL SUNTAY, and JOSE
SUNTAY, Oppositors-Appellees.

Facts:

When Jose B. Suntay died, his eldest son from his first marriage filed the intestate proceeding in
the CFI of Manila. In the same court, his second wife Maria Billian also instituted for the probate
of a will allegedly left by the deceased. According to Maria, before the deceased died he left with
her a sealed envelope (Exhibit A) containing his will and also another documents said to be a
true copy of the original contained in the envelope.
 
While the witness showed the envelope to Suntay, they snatched and opened it, took its contents
and threw the envelope (they denied this). Upon these allegations, Maria asks that the children
by the first marriage of the deceased, be ordered to present the will in Court, that a day be set for
the reception of evidence on the will, and that she be appointed executrix pursuant to the
designation made by the deceased in he will.
 
ISSUE: Whether Exhibit B accompanying the petition is an authentic copy and whether it has
been executed with all the essential and necessary formalities required by law for its probate.
 
RULING:

The evidence presented sufficiently establishes the loss of the will, thus justifying the
presentation of secondary evidence of its contents. It was ordered that the case be remanded to
the court of origin for further proceedings.

G.R. No. L-42226 July 26, 1935

In re  estate of the deceased Ines Basa de Mercado.
JOAQUINA BASA, ET AL., petitioners-appellants, vs. ATILANO G.
MERCADO, Respondent-Appellee.

Facts:

Hon. Hermogenes Reyes, Judge of Pampanga CFI, allowed and probated the last will and
testament of Ines Basa, decedent. The same judge also approved the account of the administrator
of the estate, declared him the only heir and closed the administration proceedings. Joaquin Basa,
et al., filed a motion to reopen the proceedings, alleging that the court lacked jurisdiction because
there was failure to comply with the requirements as to the publication of the notice of hearing.
They contended that the hearing took place only twenty-one days after the date of first
publication instead of three full weeks. Moreover, they questioned whether Ing Katipunan, the
newspaper where the notice was published was a newspaper of general circulation as
contemplated by the law.

ISSUEs:
1. Whether or not there was compliance with the publication requirement
2. Whether or not Ing Katipunan is a newspaper of general circulation

RULING:

The language used in section 630 of the Code of Civil Procedure does not mean that the notice,
referred to therein, should be published for three full weeks before the date set for the hearing of
the will. In other words, the first publication of the notice need not be made 21 days before the
day appointed for the hearing.

The records show that Ing Katipunan is a newspaper of general circulation in view of the fact
that it is published for the dissemination of local news and general information; that it has a bona
fide subscription list of paying subscribers; that it is published at regular intervals and that the
trial court ordered the publication to be made in Ing Katipunan precisely because it was a
newspaper of general circulation in the Province of Pampanga.

G.R. No. 77047 May 28, 1988

JOAQUINA R-INFANTE DE ARANZ, ANTONIO R-INFANTE, CARLOS R. INFANTE,
MERCEDES R-INFANTE DE LEDNICKY, ALFREDO R-INFANTE, TERESITA R-
INFANTE, RAMON R-INFANTE, FLORENCIA R-INFANTE DE DIAS, MARTIN R-
INFANTE, JOSE R-INFANTE LINK and JOAQUIN R-INFANTE
CAMPBELL, Petitioners, vs. THE HON. NICOLAS GALING, PRESIDING JUDGE,
REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, BRANCH
NO. 166, PASIG, METRO MANILA AND JOAQUIN R-INFANTE, Respondents.

Facts:

Joaqin Infante (RESPONDENT) filed a petition at the RTC of Pasig for the probate of the will of
Monseratt Infante Y Pola. His petition named several individuals (PETITIONERS) with the
surname Infante-Roxas as legatees and devisees.

Thereafter, the probate court issued an order for the requisite hearing and the judge complied
with the mandatory three week publication of the order. Come hearing date, no oppositor
appeared and so the judge reset the hearing date. No oppositor made manifestation on the later
date, compelling the judge to request for the submission of evidence ex-parte. Joaquin Infante
immediately presented evidence that same fateful day. He called a lone witness to the stand.
Two days passed and the ten Petitioners made an appearance contesting the probate on the
ground that no notice was ever sent to them. They requested ten days to file an opposition.
Petitioners assert that failure to notify the legatees/devisees deprives the court of jurisdiction.

Joaqin Infante opposed the opposition and garnered the affirmation of both the RTC and the CA.
The petition to deny probate was therefore denied.

ISSUE: Whether or not probate may proceed despite the failure of personal notice to the
legatees/devisees.

Ruling:

No. The probate proceeding was mired in procedural lapses which deprived the court of
jurisdiction. The pertinent rule follows:

Sec. 4, Rule 76 of the Rules of Court reads:

SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or

personally. — The court shall also cause copies of the notice of the time and place fixed
for proving the will to be addressed to the designated or other known heirs, legatees, and
devisees of the testator resident in the Philippines at their places of residence, and
deposited in the post office with the postage thereon prepaid at least twenty (20) days
before the hearing, if such places of residence be known. A copy of the notice must in
like manner be mailed to the person named as executor, if he be not the petitioner; also,
to any person named as co-executor not petitioning, if their places of residence be known.
Personal service of copies of the notice at least ten (10) days before the day of hearing
shall be equivalent to mailing.

The CA’s ruling that notification was merely a matter of convenience sits in stark disregard of
the law which makes notice mandatory. Probate is a proceeding in rem and for the validity of
such proceedings personal notice or by publication or both to all interested parties must be made.
The will and the alleged probate thereof cannot be said to have been done in accordance with the
accepted basic and fundamental concepts and principles followed in the probate and allowance
of wills. The Supreme Court remanded the case to the RTC for further proceedings after
nullifying the CA.

G.R. No. L-12767 November 16, 1918

In the matter of the estate of EMIL H. JOHNSON. EBBA INGEBORG
JOHNSON, applicant-appellant

Facts:

On February 4, 1916, Emil H. Johnson, a native of Sweden and a naturalized citizen of the
United States, died in the city of Manila, leaving a holographic will by which he disposed of an
estate valued at P231,800.
The instrument, being written in the testator's own handwriting, and is signed by himself and two
witnesses only, instead of three witnesses required by section 618 of the Code of Civil
Procedure. The will, therefore, was not executed in conformity with the provisions of law
generally applicable to wills executed by inhabitants of these Islands.

Thereafter, a petition was presented in the Court of First Instance of Manila for the probate of
this will, on the ground that Johnson was at the time of his death a citizen of the State of Illinois,
United States of America; that the will was duly executed in accordance with the laws of that
State; and hence could properly be probated here pursuant to section 636 of the Code of Civil
Procedure. Thereafter the document was declared to be legal and was admitted to probate.

Three months after the will had been probated, the attorneys for Ebba Ingeborg Johnson entered
an appearance in her behalf and asserted that Ebba is a legitimate heir of the testator. Thus, she
cannot be deprived of the legitime to which she is entitled under the law governing testamentary
successions in these Islands.

Therefore, she moved to annul the decree of probate and put the estate into intestate
administration in order for her to claim the estate as the sole legitimate heir of her father.

ISSUE: Whether or not the order of the probate can be set aside on the ground that the testator
was not a resident of the State of Illinois and that the will was not made in conformity with the
laws of that State.

Ruling: NO.

In the testimony submitted to the trial court it appears that, when Johnson first came to the
United States as a boy, he took up his abode in the State of Illinois and there remained until he
came as a soldier in the United States Army to the Philippine Islands. Although he remained in
these Islands for sometime after receiving his discharge, no evidence was adduced showing that
at the time he returned to the United States, in the autumn of 1902, he had then abandoned
Illinois as the State of his permanent domicile.

Further, there is no law in force at that time by virtue of which any person of foreign nativity can
become a naturalized citizen of the Philippine Islands; Thus, it was impossible for the testator,
even if he had so desired, to expatriate himself from the United States and change his political
status from a citizen of the United States to a citizen of these Islands.
This being true, it is to be presumed that he retained his citizenship in the State of Illinois along
with his status as a citizen of the United States.

SC held that the probate of the will does not affect the intrinsic validity of its provisions, the
decree of probate being conclusive only as regards the due execution of the will.

Further, the intrinsic validity of the provisions of this will must be determined by the law of
Illinois and not of the Philippines. In paragraph 2 of article 10 of the Civil Code it is declared
that "legal and testamentary successions, with regard to the order of succession, as well as to the
amount of the successional rights and to the intrinsic validity of their provisions, shall be
regulated by the laws of the nation of the person whose succession is in question, whatever may
be the nature of the property and the country where it may be situate."

In this case, the petition submitted to the lower court was insufficient to warrant the setting aside
of the order, probating the will in question, whether said petition be considered as an attack on
the validity of the decree for error apparent, or whether it be considered as an application for a
rehearing based upon the new evidence submitted in the affidavits which accompany the petition.

Further, in the latter aspect the petition is subject to the further fatal defect that it was not
presented within the time allowed by law.

Thus, the trial court committed no error in denying the relief sought. The order appealed from is
accordingly affirmed

G.R. No. L-26743. May 31, 1972.

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF CIPRIANO
ABUT, deceased, GENEROSO ABUT, Petitioner, GAVINA ABUT, Petitioner-Appellant, v.
FELIPE ABUT, PRESENTACION DE RODRIGUEZ and ABSOLUTO
ABUT, Oppositors-Appellees.

Facts:

Generoso Abut is one of the children of the deceased Cipriano Abut by his second marriage. On
August 4, 1965, Generoso filed a petition before the CFI of Misamis, a petition for the allowance
of the will of the said deceased and the issuance of letters testamentary in his favor alleging that
he is the person named as executor in a will allegedly executed by his father. In an order dated
September 1, 1965 the court a quo motu proprio set the petition for hearing and further directed
compliance with Sections 3 and 4 of Rule 76 of the Rules of Court. These procedural steps
admittedly took place. Opposition to the petition was filed by the children of Cipriano Abut by
his first marriage.

During the pendency of the case below but before the court a quo could even start the formal
hearing of the petition, Generoso died on January 10, 1966. This eventuality prompted Gavina
Abut, a sister of Generoso and an heir and devisee under the will of the testator Cipriano Abut, to
ask the court a quo to substitute her in lieu of Generoso and to admit an amended petition
wherein she prayed that the probate of the will be allowed and that letters of administration with
the will annexed be issued in her favor.

The lower court dismissed the petition originally brought by the deceased Generoso, "without
prejudice to the filing of another petition pursuant to the requirements of the Rules of Court".
Said dismissal was based on the theory that the amended petition filed Gavaina, seeking to
substitute her in place of the original petitioner, required a new publication in order to invest the
court with jurisdiction.

Issue: Whether or not the probate court correctly dismissed the petition simply because the
original petitioner died before the petition could be heard and/or terminated.
Ruling:

The Court found the dismissal of the original petition for probate and the refusal of the probate
court to admit the amended petition to be untenable. The jurisdiction of the court became vested
upon the filing of the original petition and upon compliance with Sections 3 and 4 of Rule 76.

A proceeding for the probate of a will is one in rem, such that with the corresponding publication
of the petition the court's jurisdiction extends to all persons interested in said will or in the
settlement of the estate of the deceased. The fact that the amended petition named additional
heirs not included in the original petition did not require that notice of the amended petition be
published anew. All that Section 4 of Rule 76 provides is that those heirs be notified of the
hearing for the probate of the will, either by mail or personally.

Jurisdiction of the court once acquired continues until the termination of the case, and remains
unaffected by subsequent events. The court below erred in holding that it was divested of
jurisdiction just because the original petitioner died before the petition could be formally heard.
Parties who could have come in and opposed the original petition, as herein appellees did, could
still come in and oppose the amended petition, having already been notified of the pendency of
the proceeding by the publication of the notice thereof.

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

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

Facts:

Appellant filed a petition with the CFI of Rizal for the probate of the holographic will and the
issuance of letters testementary in her favor. Oppositor-appellees, Aranza et al. opposed the
petition on the following grounds, among others:

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

Following the consolidation of the cases, the appellees moved again to dismiss the petition for
the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent Ricardo
B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike
ordinary wills.

Upon opposition of the appellant, the motion to dismiss (of the appellees) was denied by the
court. The appellees then filed a motion for reconsideration on the ground that the order was
contrary to law and settled pronouncements and rulings of the Supreme Court, to which the
appellant in turn filed an opposition. The court set aside its order and dismissed the petition for
the probate of the will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is lost, a copy
thereof cannot stand in lieu of the original.

Hence, this petition.

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

Ruling: YES

The photostatic or xerox copy of the lost or destroyed holographic will may be admitted because
the authenticity of the handwriting of the deceased can be determined by the probate court.
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." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the probate court," Evidently,
the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because
then the authenticity of the handwriting of the deceased can be determined by the probate court.

G.R. No. L-12190. August 30, 1958.

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.
GAN, Petitioner-Appellant, v. ILDEFONSO YAP, Oppositor-Appellee.

Facts:

Gan filed a petition for probate of the holographic will allegedly executed by Felicidad Yap.
Opposing the petition, her surviving husband, Ildefonso Yap asserted that the deceased had not
left any will, nor executed any testament during her lifetime. The will itself was not presented.
Petitioners tried to establish its contents and due execution by the statements of 4 witnesses who
testified that Felicidad wrote, signed and dated a holographic will and that Felicidad allowed
them to read the will.
ISSUE: w/n a holographic will may be probated upon the testimony of witnesses.

Ruling: NO

When the will itself is not submitted, the means of opposition, and of assessing the
evidence are not available. And then the only guaranty of authenticity—the testator’s
handwriting—has disappeared.

Unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills:

In Holographic wills, there is a a) guarantee of authenticity: the handwriting itself; b) if oral

testimonies were admissible, only one man could engineer the whole fraud; and, c) in case of a
lost holographic will, the witnesses would testify as to their opinion of the handwriting which
they allegedly saw, an opinion which cannot be tested in court because the handwriting itself is
not at hand.

In notarial will, on the other hand, a) the guarantee of authenticity: testimony of the subscribing
or instrumental witnesses; b) hard to convince 3 witnesses deliberately to lie; and, c) in case of a
lost will, the 3 subscribing witnesses would be testifying to a fact which they saw the act of the
testator subscribing the will.

G.R. No. L-26317 January 29, 1927

Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, Petitioner-Appellant,
vs. CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.

Facts:

Miguel Mamuyac died on January 2, 1922. It appears from the record that Miguel executed a last
will and testament on July 27, 1918. Gago presented such will for probate which was opposed by
Cornelio Mamuyac et. al. Said petition for probate was denied on the ground that the deceased
executed another will on April 16, 1919. Gago presented the April 16 will for probate which was
again opposed by Cornelio et. al. alleging that the will presented by Gago is a carbon copy of the
original April 16 will; such will was cancelled during the lifetime of the deceased; and that said
will was not the last will and testament of the deceased. The RTC found that the deceased
executed another will on December 30, 1920.

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

RULING:

Yes. The will was already cancelled in 1920. This was inferred when after due search, the
original will cannot be found. When the will which cannot be found in shown to be in the
possession of the testator when last seen, the presumption is that in the absence of other
competent evidence, the same was deemed cancelled or destroyed. The same presumption
applies when it is shown that the testator has ready access to the will and it can no longer be
found after his death.

G.R. No. 23061. March 6, 1925.

Estate of the deceased Salome Avila. VICENTE ALDANESE, Petitioner-Appellant, v.
CANUTO SALUTILLO ET AL., objectors-appellees.

Facts:

Salome Avila died a resident of Cebu. Her will appears to be executed by Moreta, Borromeo,
and Rafols, all residents of Manila. Since Avila left no ascendants or descendants, under her will
she disposed the greater part of her estate in favor of petitioner Aldanese and his sister.

The petition for probate was filed in the CFI of Cebu. The respondents surnamed Salutillo and
Llanos appeared as opponents, alleging that the will should be denied probate on the ground of
fraud, undue influence, and testamentary incapacity of Avila at the time of execution. They also
alleged that they were the nearest relatives of Avila and should thus succeed to her estate by
operation of law.

Aldanese filed a motion asking the court to authorize the taking of the depositions of the
witnesses to the will, since they were unable to appear personally before the CFI of Cebu –
granted.

The Salutillos then filed a motion asking to the court to revoke the order authorizing the taking
of depositions on the ground that it has not been sufficiently shown that it was impossible for the
witnesses to appear personally before the court – and this was also granted. However, by the time
that notice of this order was sent to Aldanese, the depositions had already been taken.

After hearing, the CFI denied probate of the will, holding that the depositions were inadmissible
in evidence. Hence this petition.

Issue: Whether or not the CFI erred in declaring that the depositions taken were inadmissible as
evidence in the probate proceedings.

Ruling:

YES. THE CA ERRED IN DECLARING THE DEPOSITIONS AS INADMISSIBLE

EVIDENCE.

While the rule in this jurisdiction is that when a will is contested the attesting witnesses must be
called to prove the will, that does not necessarily mean that they must be brought bodily before
the court. It is their testimony which is needed, not their actual presence.

Section 355 of the (old) Code of Civil Procedure provides:

 “The testimony of a witness in the Philippine Islands may be taken by deposition…in a
special proceeding, after the question of fact has arisen therein, in the following cases:

2. When the witness resides out of the province in which his testimony is to be used.”

Section 406 of the same Code reads:

“A witness is not obliged to attend as a witness in a civil action before any court, judge,
justice, or other officer out of the province in which he resides, unless the distance be less
than thirty miles from his place of residence to the place of trial by the usual course of travel,
but his testimony may be taken in such case in the form of a deposition.”

In the present case, the will was presented for probate in Cebu, and the attesting witnesses were
living in Manila. The required notice was duly given, and so the depositions would ordinarily be
admissible. However, the record indicates that the failure of the opponents to be present at the
taking of the depositions was due to the fact that they were misled by petitioner’s action in
seeking a special authorization from the court. Therefore, in the interest of justice, the
depositions should be retaken, to give the opponents another opportunity to examine the
witnesses. It must also be noted that when the depositions of subscribing witnesses to a will are
taken, a photographic copy of the will may be presented to them on their examination, and they
may be asked the same original will.

The Court reversed the order and the case was remanded.

G.R. No. 8954. March 21, 1916.

DOROTEA CABANG, Petitioner-Appellee, v. MARTIN DELFINADO, Respondent-
Appellant.

Facts:

This is an appeal from judgement probating will of the decedent despite the fact that the will was
contested and only one of the three subscribing witnesses were called. The two other subscribing
witnesses were not called although they were living within the jurisdiction of the court.

On the 25th of October 1911, Martin Delfinado appeared, through his attorney, and filed an
opposition to the allowance of the will, alleging that the will was not signed by the deceased, nor
by any other person, in his presence and by his express direction, and that the attestation does not
comply with law. After publication, the case was set for hearing at 8 a.m. on November 18,
1911.

On the last named date the case proceeded to trial, the petitioner presenting as witnesses the
widow Dorotea Cabang, Antonio Flor Mata, and Paciano Romero, the latter being one of the
subscribing witnesses. The opposition called only one witness, Martin Delfinado. On the 27th of
November, 1911, the petitioner presented a motion asking that the case be reopened for the
purpose of receiving the testimony of the other two subscribing witnesses, who were then living
in Manila and Nueva Ecija.
On the 13th of May, 1912, the petitioner filed another motion, setting forth that due publication
for the legalization of the will had not been made. As a result of this last motion, the court, by an
order dated 29th of December, 1912, directed a republication, setting the date for hearing on the
7th of January, 1913, and the judgment appealed from was entered on the 25th of that month.

The decision of the court is based exclusively upon the testimony taken on the 18th of
November, 1911. The petitioner had from the 29th of November, 1912, the date of the order
directing a republication and new hearing, until January 7, 1913, the date fixed for the new
hearing, within which to present the two absent subscribing witnesses. No reason whatever
appears in the record why these witnesses were not present and no question was raised either in
the court below or in this court with reference to the consideration by the trial court of the
testimony taken upon the first hearing. So it must be presumed that the petitioner did not desire
to present these two witnesses and that she had no objection to the consideration of the testimony
already taken.

Issue: Whether or not the will should be probated in the absence of other witnesses to the will to
testify in the probate proceedings.

Ruling: No.

The Court was inclined to hold that no will can be proved, unless all the subscribing witnesses,
alive and within the control of the process of the court, are produced to testify.

The rule that no will shall be valid to pass any estate, real or personal, unless "attested and
subscribed by three or more credible witnesses," is a matter of substantive law and an element of
the will’s validity. The rule that the attesting witnesses must be called to prove a will for probate
is one of preference made so by statute. This rule of evidence is not to be confused with rules of
quantity. There have been several reasons given for this rule of preference for the attesting
witnesses, one reason being that the party opposing the claim of proper execution of the will has
a right to the benefit of cross-examining the attesting witnesses as to fraud, duress, or other
matters of defense. The law places these witnesses "around the testator to ascertain and judge of
his capacity" for the purpose of preventing frauds. The soundness of the rule is well illustrated in
the case under consideration. Here the attesting clause was omitted and the testator signed by
mark.

The petitioner produced only one of the attesting witnesses. Had there not been a contest this
would have probably been sufficient under section 631. While there is no testimony in the record
to the effect that the testator could neither read nor write, there is conclusive evidence that he
could sign his name. This fact is established by the production of Exhibit 1, which all agree the
testator did sign. The testator’s signature to the document shows that he could write, at least his
name, in a plain clear manner, indicating a fairly good knowledge of writing. Had the proponent
shown that the other two subscribing witnesses were not within the jurisdiction of the court and
could not, therefore, be called, the due execution of the will would still be very doubtful.
Believing, as we do, that it was the intention of the Legislature that the subscribing witnesses
must be called or good and sufficient reason shown why they could not be had, and being
supported by the authorities above cited and quoted, we must conclude that the proponent did not
comply with the provisions of the law in the presentation of her case.

G.R. No. 15566. September 14, 1921.

EUTIQUIA AVERA, Petitioner-Appellee, v. MARINO GARCIA, and JUAN
RODRIGUEZ, as guardian of the minors Cesar Garcia and Jose Garcia, objectors-
appellants.

Facts:

Eutiquia Avera instituted proceedings for the probate of the will of Esteban Garcia. Marino
Garcia and Juan Rodriguez, as guardians for the minors Jose Garcia and Cesar Garcia, opposed
the same. At the hearing, Avera introduced one of the three witnesses who testified that the will
was executed with all necessary formalities, and that the testator was at the time in full
possession of disposing faculties. The person who wrote the will at the request of the testator
corroborated the witness’ testimony regarding the testamentary capacity of the decedent. Two of
the attesting witnesses were not introduced, nor did Avera account for their absence.

The trial judge found that the testator at the time of making of the will was of sound mind and
disposing memory and that the will had been properly executed. Thus, he allowed the will to
probate.

Issue: Whether or not the will in question can be admitted to probate, where opposition is made,
upon the proof of a single attesting witness, without producing or accounting for the absence of
the other two.

Ruling:

No.

When a contest is instituted, all of the attesting witnesses must be examined, if alive and within
reach of the process of the court. In the present case no explanation was made at the trial as to
why all three of the attesting witnesses were not produced.

But the probable reason is found in the fact that, although the petition for probate of the will had
been pending from 21 December 1917 until 5 April 1919, no formal contest was entered until the
very day set for the hearing. It is probable that the attorney for the proponent, believing in good
faith that the probate would not be contested, went to the court with only one of the three
attesting witnesses. Although said circumstance may explain why the three witnesses were not
produced, it does not in itself supply any basis for changing the rule requiring the presentation of
all three witnesses.

However, Garcia and Rodriguez did not raise this point either upon the submission of the cause
for determination in the lower court or upon the occasion of the filing of the motion for a new
trial. Thus, this question cannot now be raised for the first time in this court.
G.R. No. 83484. February 12, 1990.
CELEDONIA SOLIVIO, Petitioner, v. THE HONORABLE COURT OF APPEALS and
CONCORDIA JAVELLANA VILLANUEVA, Respondents.

Facts:

This case involves the estate of the late novelist, Esteban Javellana, Jr," who died a bachelor,
without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving
relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his
mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister
of his deceased father, Esteban Javellana, Sr.

During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some
close friends his plan to place his estate in a foundation to honor his mother and to help poor but
deserving students obtain a college education. Unfortunately, he died of a heart attack without
having set up the foundation.

Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's
properties. Pursuant to their agreement that Celedonia would take care of the proceedings leading
to the formation of the foundation, Celedonia in good faith and upon the advice of her counsel,
filed a Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of
Esteban Javellana, Jr.. Later, she filed an amended petition praying that letters of administration
be issued to her; that she be declared sole heir of the deceased; and that after payment of all
claims and rendition of inventory and accounting, the estate be adjudicated to her.

After due publication and hearing of her petition, as well as her amended petition, she was
declared sole heir of the estate of Esteban Javellana, Jr. Thereafter, she sold properties of the
estate to pay the taxes and other obligations of the deceased and proceeded to set up the
"SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION" which she caused to be
registered in the Securities and Exchange Commission on July 17,1981 under Reg. No. 0100027.

Four months later, Concordia Javellana Villanueva filed a motion for reconsideration of the
court's order declaring Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the
deceased. Her motion was denied by the court for tardiness. Instead of appealing the denial,
Concordia filed a civil case in the RTC of Iloilo for partition, recovery of possession, ownership
and damages.

Issue: Whether the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition
and recovery of Concordia Villanueva's share of the estate of Esteban Javellana, Jr. even while
the probate proceedings were still pending in the same court;

Ruling:

The Regional Trial Court, lacked jurisdiction to entertain Concordia Villanueva's action for
partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate
proceedings (Spl, Proc. No. 2540) for the settlement of said estate are still pending in the same
court, there being as yet no orders for the submission and approval of the administratix's
inventory and accounting, distributing the residue of the estate to the heir, and terminating the
proceedings.

It is the order of distribution directing the delivery of the residue of the estate to the persons
entitled thereto that brings to a close the intestate proceedings, puts an end to the administration
and thus far relieves the administrator from his duties.

The probate court loses jurisdiction of an estate under administration only after the payment of
all the debts and the remaining estate delivered to the heirs entitled to receive the same. The
finality of the approval of the project of the probate court, in the exercise of its jurisdiction to
make distribution, has power to determine the proportion or parts to which each distributed is
entitled. The power to determine the legality or illegality of the testamentary provision is
inherent in the jurisdiction of the court making a just and legal distribution of the inheritance. To
hold that a separate and independent action is necessary to that effect, would be contrary to the
general tendency of the jurisprudence of avoiding multiplicity of suits; and is further, expensive,
dilatory, and impractical.