MITRA v. SABLAN G.R. No.
213994, April 18, 2018 improper pressure, thus, Legaspi could not have intended the
REYES, JR., J.:MITRA v. SABLAN G.R. No. 213994, April 18,
2018
REYES, JR., J.:
ANTECEDENT FACTS
On June 26, 2006, Margie Santos Mitra (petitioner) filed a
petition for the probate of the notarial will of Remedios Legaspi
y Reyes (Legaspi) with prayer for issuance of letters
testamentary before the RTC. It was alleged that the petitioner
is the de facto adopted daughter of Legaspi; that Legaspi,
single, died on December 22, 2004 in Caloocan City; that
Legaspi left a notarial will, instituting the petitioner, Orlando
Castro, Perpetua Sablan Guevarra, and Remigio Legaspi
Sablan, as her heirs, legatees and devisees; that Legaspi left
real and personal properties with the approximate total value
of One Million Thirty-Two Thousand and Two Hundred Thirty
Seven Pesos (P1,032,237.00); and that Legaspi named Mary
Ann Castro as the executor of the will.5
Perpetua L. Sablan-Guevarra and Remegio L. Sablan
(respondents), who claim to be Legaspi's legal heirs, opposed
the petition. They aver that the will was not executed in
accordance with the formalities required by law; that since the
last page of the will, which contained the Acknowledgement,
was not signed by Legaspi and her instrumental witnesses, the
will should be declared invalid; that the attestation clause
failed to state the number of pages upon which the will was
written; and that the will was executed under undue and
document to be her last will and testament.6
THE RULING OF THE RTC
On February 23, 2009, the RTC rendered a Decision7
admitting Legaspi's will to probate. The dispositive portion
reads:
WHEREFORE, premises considered, this Court having been
satisfied that the will was duly executed, and that the testator
at the time of its execution was of sound and disposing mind,
and not acting under duress, menace and undue influence, or
fraud, the petition for the probate of the Huling Habilin at
Pagpapatunay of the testator Remedios Legaspi is hereby
granted.
The Huling Habilin at Pagpapatunay of the testator Remedios
Legaspi dated September 27, 2004 is hereby allowed.
In the meantime, the hearing on the issuance of [the] letters
testamentary to the named executor Mary Ann Castro is
hereby set on April 23, 2009.
SO ORDERED.8
The probate court explained that the last page of the will is but
a mere continuation of the Acknowledgement portion, which
the testator and the witnesses are not required to sign.9 Also,
it held that inasmuch as the number of pages upon which the
will was written was stated in the Acknowledgement, the will
must be admitted to probate.10 The respondents' allegation of
undue influence or improper pressure exerted upon Legaspi
1
was disregarded for failure on their part to adduce evidence
proving the existence thereof.11
Aggrieved, the respondents appealed to the CA.
THE RULING OF THE CA
In its assailed Decision12 dated May 22, 2013, the CA
reversed the judgment of the RTC, as the CA adhered to the
view of strictly complying with the requirement of stating the
number of pages of the will in the attestation clause. Moreover,
the CA detected another supposed fatal defect in the will: the
photocopy of the will submitted by the respondents on appeal
did not contain the signatures of the instrumental witnesses on
each and every page thereof. Thus, the CA disposed of the
appeal in this wise:
WHEREFORE, the appealed decision dated February 23,
2009 rendered by the Regional Trial Court, Branch 128 of
Caloocan City in Special Proceeding Case No. C-3450 for
probate of the last will and testament of the deceased
Remedios Legaspi y Reyes is REVERSED AND SET ASIDE.
SO ORDERED.13
The respondents filed their motion for reconsideration a day
late. Thus, the CA denied the same in a Resolution14 dated
August 15, 2014.
ISSUES
Whether the CA erred in finding that the instrumental
witnesses to the will failed to sign on each and every page
thereof on the left margin, except the last, as required under
Article 805 of the Civil Code
Whether the CA erred in ruling that the failure to state the
number of pages comprising the will on the attestation clause
renders such will defective
THE RULING OF THE COURT
To begin with, the importance of complying with procedural
rules can not be over emphasized these are tools designed to
facilitate the adjudication of cases.15 These are set in place to
obviate arbitrariness, caprice, or whimsicality in the
administration of justice.16 Nevertheless, if a stringent
application of the rules would hinder rather than serve the
demands of substantial justice, the former must yield to the
latter.17 "Litigations should, as much as possible, be decided
on the merits and not on technicalities."18
In Republic vs. Court of Appeals,19 the Court allowed the
perfection of the appeal of the Republic, despite the delay of
six (6) days, since the Republic stands to lose hundreds of
hectares of land already titled in its name. This was done in
order to prevent a gross miscarriage of justice. Also, in Barnes
vs. Padilla,20 the Court suspended the rule that a motion for
extension of time to file a motion for reconsideration in the CA
does not toll the fifteen-day period to appeal. The Court held
that the procedural infirmity was not entirely attributable to the
fault of the petitioner and there was lack of any showing that
the review sought is merely frivolous and dilatory. Similarly, in
Philippine Bank of Communications vs. Yeung,21 the Court
permitted the delay of seven (7) days in the filing of the motion
2
for reconsideration in view of the CA's erroneous application of
legal principles to prevent the resulting inequity that might
arise from the outright denial of the petition.
In the present case, the petitioner's motion for reconsideration
of the CA decision was indeed filed a day late. However,
taking into account the substantive merit of the case, and also,
the conflicting rulings of the RTC and CA, a relaxation of the
rules becomes imperative to prevent the commission of a
grave injustice. Verily, a rigid application of the rules would
inevitably lead to the automatic defeasance of Legaspi's last
will and testament- an unjust result that is not commensurate
with the petitioner's failure to comply with the required
procedure.
One of the issues raised by the petitioner entails an
examination of the records of the case, as it pertains to the
factual findings of the CA. As a general rule, a petition for
review on certiorari may only raise questions of law, as
provided under Rule 45 of the 1997 Rules of Civil Procedure.
Nevertheless, the Court will not hesitate to set aside the
general rule when circumstances exist warranting the same,
such as in the present case, where the findings of fact of the
probate court and CA are conflicting. Additionally, it appears
that the CA manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would
justify a different conclusion.22
According to the CA, while Legaspi signed on the left margin
of each and every page of her will, the instrumental witnesses
failed to do the same, in blatant violation of Article 805 of the
Civil Code which states:
Article 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (Emphasis supplied)
The petitioner, in assailing the findings of the CA, argues that
in the original copy23 of the will that was offered before the
probate court as Exhibit "L," it is clear that the instrumental
witnesses signed on the left margin of every page of the will
except the last, as did Legaspi.24 The petitioner advances that
the confusion arose when the respondents, in their record of
appeal, submitted an altered photocopy25 of the will to the CA,
in which the signatures of the instrumental witnesses were
covered when photocopied, to make it appear that the
3
witnesses did not sign on every page. This misled the CA to
rule that the will was defective for the lack of signatures.26
For their part, the respondents do not deny that the original
copy of the will, as opposed to its photocopy, bore the
signatures of the instrumental witnesses on every page
thereof, except the last.27 However, they submit that they did
not cause any alteration to the photocopied version. They
explain that since the folder holding the records of the case
was bound on the left margin and the pages may not be
detached therefrom, the left portion of the will must have been
unintentionally excluded or cut-off in the process of
photocopying.28
In any event, it is uncontested and can be readily gleaned that
the instrumental witnesses signed on each and every page of
the will, except the last page. Such being the case, the CA
erred in concluding otherwise. There is no doubt that the
requirement under the Article 805 of the Civil Code, which
calls for the signature of the testator and of the instrumental
witnesses on each and every page of the will on the left
margin, except the last, was complied with.
It should also be mentioned that the respondents take a
skewed stance in insisting that the testator Legaspi and the
instrumental witnesses should have signed on the last page of
the subject will. When Article 805 of the Civil Code requires
the testator to subscribe at the end of the will, it necessarily
refers to the logical end thereof, which is where the last
testamentary disposition ends.29 As the probate court
correctly appreciated, the last page of the will does not contain
any testamentary disposition; it is but a mere continuation of
the Acknowledgment.30
As to whether the failure to state the number of pages of the
will in the attestation clause renders such will defective, the
CA, citing Uy Coque vs. Naves Sioca31 and In re: Will of
Andrada, perceived such omission as a fatal flaw.32 In Uy
Coque, one of the defects in the will that led to its disallowance
is the failure to declare the number of its pages in the
attestation clause. The Court elucidated that the purpose of
requiring the number of pages to be stated in the attestation
clause is to make the falsification of a will more difficult. In In
re: Will of Andrada, the Court deemed the failure to state the
number of pages in the attestation clause, fatal. Both
pronouncements were, however, made prior to the effectivity of
the Civil Code on August 30, 1950.
Subsequently, in Singson vs. Florentino,33 the Court adopted
a more liberal approach and allowed probate, even if the
number of pages of the will was mentioned in the last part of
the body of the will and not in the attestation clause. This is to
prevent the will of the testator from being defeated by purely
technical considerations.34
The substantial compliance rule is embodied in the Civil Code
as Article 809 thereof, which provides that:
Article 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial
compliance with all the requirements of Article 805.
4
Thus, in Taboada vs. Hon. Rosal,35 the Court allowed the
probate of a will notwithstanding that the number of pages was
stated not in the attestation clause, but in the
Acknowledgment. In Azuela vs. CA,36 the Court ruled that
there is substantial compliance with the requirement, if it is
stated elsewhere in the will how many pages it is comprised
of.
What is imperative for the allowance of a will despite the
existence of omissions is that such omissions must be
supplied by an examination of the will itself, without the need
of resorting to extrinsic evidence. "However, those omissions
which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and
ultimately, of the will itself."37
An examination of the will in question reveals that the
attestation clause indeed failed to state the number of pages
comprising the will. However, as was the situation in Taboada,
this omission was supplied in the Acknowledgment. It was
specified therein that the will is composed of four pages, the
Acknowledgment included. As with the will, the
Acknowledgment38 is written in Filipino, quoted in part below:
xxxx
has been proven that Legaspi and the instrumental witnesses
signed on every page of the will, except on the last, which
refers to the Acknowledgment page. With regard to the
omission of the number of pages in the attestation clause, this
was supplied by the Acknowledgment portion of the will itself
without the need to resort to extrinsic evidence. Contrary to the
CA conclusion, such omission does not in any way serve as
hindrance to probate.
WHEREFORE, premises considered, the petition is
GRANTED. The Decision dated May 22,2013 and Resolution
dated August 15, 2014 of the Court of Appeals in CA-G.R. CV
No. 93671 are hereby REVERSED and SET ASIDE. The
Decision dated February 23, 2009 of the Regional Trial Court,
Branch 128 of Caloocan City in SP. Proc. Case No. C-3450 is
REINSTATED and AFFIRMED. The case is remanded to the
trial court for further proceedings. SO ORDERED.

Ang HULING HABILlNG ito ay binubuo ng apat (4) na dahon,

kasama ang dahong kinaroroonan ng Pagpapatunay at
Pagpapatotoong ito.

x x x x39
In sum, Legaspi's last will and testament has substantially
complied with all the formalities required of a notarial will. It

5
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, vs. JOSEFINA C.
VALMONTE,
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it
rests the burden of showing why it should not be allowed. In
the present case, petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that
allowed the probate of the will.
The Case
Before the Court is a Petition for Review1 under Rule 45 of the
Rules of Court, seeking to reverse and set aside the
December 12, 2002 Decision2 and the March 7, 2003
Resolution3 of the Court of Appeals (CA) in CA-GR CV No.
44296. The assailed Decision disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision
appealed from is REVERSED and SET ASIDE. In its place
judgment is rendered approving and allowing probate to the
said last will and testament of Placido Valmonte and ordering
the issuance of letters testamentary to the petitioner Josefina
Valmonte. Let this case be remanded to the court a quo for
further and concomitant proceedings."4
The assailed Resolution denied petitioner’s Motion for
Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA,
as follows:
"x x x: Like so many others before him, Placido toiled and lived
for a long time in the United States until he finally reached
retirement. In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot located at #9200
Catmon St., San Antonio Village, Makati, which he owned in
common with his sister Ciriaca Valmonte and titled in their
names in TCT 123468. 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 ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little more
than two years of wedded bliss, Placido died on October 8,
1984 of a cause written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in
English and consisting of two (2) 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. It
provides in the body that:
6

‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN
THE NAME OF THE LORD AMEN:
‘I, PLACIDO VALMONTE, of legal age, married to Josefina
Cabansag Valmonte, and a resident of 9200 Catmon Street,
Makati, Metro Manila, 83 years of age and being of sound and
disposing mind and memory, do hereby declare this to be my
last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under
the auspices of the Catholic Church in accordance with the
rites and said Church and that a suitable monument to be
erected and provided my by executrix (wife) to perpetuate my
memory in the minds of my family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA
C. VALMONTE, one half (1/2) portion of the follow-described
properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC,
(GLRO), situated in Makati, Metro Manila, described and
covered by TCT No. 123468 of the Register of Deeds of Pasig,
Metro-Manila registered jointly as co-owners with my
deceased sister (Ciriaca Valmonte), having share and share
alike;
b. 2-storey building standing on the above-described property,
made of strong and mixed materials used as my residence
and my wife and located at No. 9200 Catmon Street, Makati,
Metro Manila also covered by Tax Declaration No.
A-025-00482, Makati, Metro-Manila, jointly in the name of my
deceased sister, Ciriaca Valmonte and myself as co-owners,
share and share alike or equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal
properties, including my savings account bank book in USA
which is in the possession of my nephew, and all others
whatsoever and wherever found, I give, devise and bequeath
to my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole
executrix of my last will and testament, and it is my will that
said executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this
15th day of June 1983 in Quezon City, Philippines.’
"The allowance to probate of this will was opposed by Leticia
on the grounds that:
1. Petitioner failed to allege all assets of the testator, especially
those found in the USA;
2. Petitioner failed to state the names, ages, and residences of
the heirs of the testator; or to give them proper notice pursuant
to law;
3. Will was not executed and attested as required by law and
legal solemnities and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of
the alleged execution he being in an advance sate of senility;
7
5. Will was executed under duress, or the influence of fear or
threats;
6. Will was procured by undue and improper influence and
pressure on the part of the petitioner and/or her agents and/or
assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he
did not intend that the instrument should be his will at the time
of affixing his signature thereto;’
and she also opposed the appointment as Executrix of
Josefina alleging her want of understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as
witnesses the notary public Atty. Floro Sarmiento who
prepared and notarized the will, and the instrumental
witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and
Josie Collado. For the opposition, the oppositor Leticia and her
daughter Mary Jane Ortega testified.
"According to Josefina after her marriage with the testator they
lived in her parents house at Salingcob, Bacnotan, La Union
but they came to Manila every month to get his $366.00
monthly pension and stayed at the said Makati residence.
There were times though when to shave off on expenses, the
testator would travel alone. And it was in one of his travels by
his lonesome self when the notarial will was made. The will
was witnessed by the spouses Eugenio and Feliza Gomez,
who were their wedding sponsors, and by Josie Collado.
Josefina said she had no knowledge of the existence of the
last will and testament of her husband, but just serendipitously
found it in his attache case after his death. It was only then
that she learned that the testator bequeathed to her his
properties and she was named the executrix in the said will. To
her estimate, the value of property both real and personal left
by the testator is worth more or less P100,000.00. Josefina
declared too that the testator never suffered mental infirmity
because despite his old age he went alone to the market
which is two to three kilometers from their home cooked and
cleaned the kitchen and sometimes if she could not
accompany him, even traveled to Manila alone to claim his
monthly pension. Josefina also asserts that her husband was
in good health and that he was hospitalized only because of a
cold but which eventually resulted in his death.
"Notary Public Floro Sarmiento, the notary public who
notarized the testator’s will, testified that it was in the first week
of June 1983 when the testator together with the three
witnesses of the will went to his house cum law office and
requested him to prepare his last will and testament. After the
testator instructed him on the terms and dispositions he
wanted on the will, the notary public told them to come back
on June 15, 1983 to give him time to prepare it. After he had
prepared the will the notary public kept it safely hidden and
locked in his drawer. The testator and his witnesses returned
on the appointed date but the notary public was out of town so
they were instructed by his wife to come back on August 9,
1983, and which they did. Before the testator and his
witnesses signed the prepared will, the notary public explained
to them each and every term thereof in Ilocano, a dialect which
the testator spoke and understood. He likewise explained that
though it appears that the will was signed by the testator and
his witnesses on June 15, 1983, the day when it should have
been executed had he not gone out of town, the formal
8
execution was actually on August 9, 1983. He reasoned that
he no longer changed the typewritten date of June 15, 1983
because he did not like the document to appear dirty. The
notary public also testified that to his observation the testator
was physically and mentally capable at the time he affixed his
signature on the will.
"The attesting witnesses to the will corroborated the testimony
of the notary public, and testified that the testator went alone
to the house of spouses Eugenio and Feliza Gomez at GSIS
Village, Quezon City and requested them to accompany him to
the house of Atty. Floro Sarmiento purposely for his intended
will; that after giving his instructions to Atty. Floro Sarmiento,
they were told to return on June 15, 1983; that they returned
on June 15, 1983 for the execution of the will but were asked
to come back instead on August 9, 1983 because of the
absence of the notary public; that the testator executed the will
in question in their presence while he was of sound and
disposing mind and that he was strong and in good health; that
the contents of the will was explained by the notary public in
the Ilocano and Tagalog dialect and that all of them as
witnesses attested and signed the will in the presence of the
testator and of each other. And that during the execution, the
testator’s wife, Josefina was not with them.
"The oppositor Leticia declared that Josefina should not inherit
alone because aside from her there are other children from the
siblings of Placido who are just as entitled to inherit from him.
She attacked the mental capacity of the testator, declaring that
at the time of the execution of the notarial will the testator was
already 83 years old and was no longer of sound mind. She
knew whereof she spoke because in 1983 Placido lived in the
Makati residence and asked Leticia’s family to live with him
and they took care of him. During that time, the testator’s
physical and mental condition showed deterioration,
aberrations and senility. This was corroborated by her
daughter Mary Jane Ortega for whom Placido took a fancy and
wanted to marry.
"Sifting through the evidence, the court a quo held that [t]he
evidence adduced, reduces the opposition to two grounds,
namely:
1. Non-compliance with the legal solemnities and formalities in
the execution and attestation of the will; and
2. Mental incapacity of the testator at the time of the execution
of the will as he was then in an advanced state of senility
"It then found these grounds extant and proven, and
accordingly disallowed probate."5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will
of Placido Valmonte to probate. The CA upheld the credibility
of the notary public and the subscribing witnesses who had
acknowledged the due execution of the will. Moreover, it held
that the testator had testamentary capacity at the time of the
execution of the will. It added that his "sexual exhibitionism
and unhygienic, crude and impolite ways"6 did not make him a
person of unsound mind.
Hence, this Petition.7
9

Issues
Petitioner raises the following issues for our consideration:
"I.
Whether or not the findings of the probate court are entitled to
great respect.
"II.
Whether or not the signature of Placido Valmonte in the
subject will was procured by fraud or trickery, and that Placido
Valmonte never intended that the instrument should be his last
will and testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at
the time he allegedly executed the subject will."8
In short, petitioner assails the CA’s allowance of the probate of
the will of Placido Valmonte.
This Court’s Ruling
At the outset, we stress that only questions of law may be
raised in a Petition for Review under Section 1 of Rule 45 of
the Rules of Court. As an exception, however, the evidence
presented during the trial may be examined and the factual
matters resolved by this Court when, as in the instant case,
the findings of fact of the appellate court differ from those of
the trial court.9
The fact that public policy favors the probate of a will does not
necessarily mean that every will presented for probate should
be allowed. The law lays down the procedures and requisites
that must be satisfied for the probate of a will.10 Verily, Article
839 of the Civil Code states the instances when a will may be
disallowed, as follows:
"Article 839. The will shall be disallowed in any of the following
cases:
(1) If the formalities required by law have not been complied
with;
(2) If the testator was insane, or otherwise mentally incapable
of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;

The Petition has no merit. (4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
Main Issue: person;

Probate of a Will (5) If the signature of the testator was procured by fraud;

10
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing
his signature thereto."
In the present case, petitioner assails the validity of Placido
Valmonte’s will by imputing fraud in its execution and
challenging the testator’s state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the
formalities in the execution of the will, but maintains that the
circumstances surrounding it are indicative of the existence of
fraud. Particularly, she alleges that respondent, who is the
testator’s wife and sole beneficiary, conspired with the notary
public and the three attesting witnesses in deceiving Placido to
sign it. Deception is allegedly reflected in the varying dates of
the execution and the attestation of the will.
Petitioner contends that it was "highly dubious for a woman at
the prime of her young life [to] almost immediately plunge into
marriage with a man who [was] thrice her age x x x and who
happened to be [a] Fil-American pensionado,"11 thus casting
doubt on the intention of respondent in seeking the probate of
the will. Moreover, it supposedly "defies human reason, logic
and common experience"12 for an old man with a severe
psychological condition to have willingly signed a last will and
testament.
We are not convinced. Fraud "is a trick, secret device, false
statement, or pretense, by which the subject of it is cheated. It
may be of such character that the testator is misled or
deceived as to the nature or contents of the document which
he executes, or it may relate to some extrinsic fact, in
consequence of the deception regarding which the testator is
led to make a certain will which, but for the fraud, he would not
have made."13
We stress that the party challenging the will bears the burden
of proving the existence of fraud at the time of its execution.14
The burden to show otherwise shifts to the proponent of the
will only upon a showing of credible evidence of fraud.15
Unfortunately in this case, other than the self-serving
allegations of petitioner, no evidence of fraud was ever
presented.
It is a settled doctrine that the omission of some relatives does
not affect the due execution of a will.16 That the testator was
tricked into signing it was not sufficiently established by the
fact that he had instituted his wife, who was more than fifty
years his junior, as the sole beneficiary; and disregarded
petitioner and her family, who were the ones who had taken
"the cudgels of taking care of [the testator] in his twilight
years."17
Moreover, as correctly ruled by the appellate court, the conflict
between the dates appearing on the will does not invalidate
the document, "because the law does not even require that a
[notarial] will x x x be executed and acknowledged on the
same occasion."18 More important, the will must be
subscribed by the testator, as well as by three or more credible
witnesses who must also attest to it in the presence of the
testator and of one another.19 Furthermore, the testator and
11
the witnesses must acknowledge the will before a notary
public.20 In any event, we agree with the CA that "the variance
in the dates of the will as to its supposed execution and
attestation was satisfactorily and persuasively explained by the
notary public and the instrumental witnesses."21
The pertinent transcript of stenographic notes taken on June
11, 1985, November 25, 1985, October 13, 1986, and October
21, 1987 -- as quoted by the CA -- are reproduced respectively
as follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June
15 when the testator and his witnesses were supposed to be
in your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come
to your house?
A They did as of agreement but unfortunately, I was out of
town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983
as per acknowledgement appearing therein. Was this the
actual date when the document was acknowledged?
A Yes sir.
Q What about the date when the testator and the three
witnesses affixed their respective signature on the first and
second pages of exhibit C?
A On that particular date when it was acknowledged, August 9,
1983.
Q Why did you not make the necessary correction on the date
appearing on the body of the document as well as the
attestation clause?
A Because I do not like anymore to make some alterations so I
put it in my own handwriting August 9, 1983 on the
acknowledgement. (tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June
15, 1983, whereas in the acknowledgement it is dated August
9, 1983, will you look at this document and tell us this
discrepancy in the date?
A We went to Atty. Sarmiento together with Placido Valmonte
and the two witnesses; that was first week of June and Atty.
Sarmiento told us to return on the 15th of June but when we
returned, Atty. Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did
you again go back?
A We returned on the 9th of August and there we signed.
12
Q This August 9, 1983 where you said it is there where you
signed, who were your companions?
A The two witnesses, me and Placido Valmonte. (tsn,
November 25, 1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro
Sarmiento, three times?
xxxxxxxxx
A The reason why we went there three times is that, the first
week of June was out first time. We went there to talk to Atty.
Sarmiento and Placido Valmonte about the last will and
testament. After that what they have talked what will be placed
in the testament, what Atty. Sarmiento said was that he will go
back on the 15th of June. When we returned on June 15, Atty.
Sarmiento was not there so we were not able to sign it, the
will. That is why, for the third time we went there on August 9
and that was the time we affixed our signature. (tsn, October
13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June
15, 1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on
August 9, 1983.
Q And on August 9, 1983 did you go back to the house of Atty.
Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
Notably, petitioner failed to substantiate her claim of a "grand
conspiracy" in the commission of a fraud. There was no
showing that the witnesses of the proponent stood to receive
any benefit from the allowance of the will. The testimonies of
the three subscribing witnesses and the notary are credible
evidence of its due execution.23 Their testimony favoring it
and the finding that it was executed in accordance with the
formalities required by law should be affirmed, absent any
showing of ill motives.24
Capacity to Make a Will
In determining the capacity of the testator to make a will, the
Civil Code gives the following guidelines:
"Article 798. In order to make a will it is essential that the
testator be of sound mind at the time of its execution.
13
"Article 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or
that his mind be wholly unbroken, unimpaired, or shattered by
disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be disposed
of, the proper objects of his bounty, and the character of the
testamentary act.
"Article 800. The law presumes that every person is of sound
mind, in the absence of proof to the contrary.
"The burden of proof that the testator was not of sound mind at
the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be
insane, the person who maintains the validity of the will must
prove that the testator made it during a lucid interval."
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, we
find 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.
Worth reiterating in determining soundness of mind is
Alsua-Betts v. CA,25 which held thus:
"Between the highest degree of soundness of mind and
memory which unquestionably carries with it full testamentary
capacity, and that degrees of mental aberration generally
known as insanity or idiocy, there are numberless degrees of
mental capacity or incapacity and while on one hand it has
been held that mere weakness of mind, or partial imbecility
from disease of body, or from age, will not render a person
incapable of making a will; a weak or feebleminded person
may make a valid will, provided he has understanding and
memory sufficient to enable him to know what he is about to
do and how or to whom he is disposing of his property. 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."26
WHEREFORE, the Petition is DENIED, and the assailed
Decision and Resolution of the Court of Appeals are
AFFIRMED. Costs against petitioner.
SO ORDERED.
14
In Re Lopez G.R. No. 189984 November 12, 2012
RESOLUTION
PERLAS-BERNABE, J.:
The Factual Antecedents
On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his
wife, Wendy B. Lopez, and their four legitimate children,
namely, petitioner Richard B. Lopez (Richard) and the
respondents Diana Jeanne Lopez (Diana), Marybeth de Leon
(Marybeth) and Victoria L. Tuazon (Victoria) as compulsory
heirs. Before Enrique’s death, he executed a Last Will and
Testament4 on August 10, 1996 and constituted Richard as his
executor and administrator.
On September 27, 1999, Richard filed a petition for the
probate of his father's Last Will and Testament before the RTC
of Manila with prayer for the issuance of letters testamentary in
his favor. Marybeth opposed the petition contending that the
purported last will and testament was not executed and
attested as required by law, and that it was procured by undue
and improper pressure and influence on the part of Richard.
The said opposition was also adopted by Victoria.
After submitting proofs of compliance with jurisdictional
requirements, Richard presented the attesting witnesses,
namely: Reynaldo Maneja; Romulo Monteiro; Ana Maria
Lourdes Manalo (Manalo); and the notary public who notarized
the will, Atty. Perfecto Nolasco (Atty. Nolasco). The
instrumental witnesses testified that after the late Enrique read
and signed the will on each and every page, they also read
and signed the same in the latter's presence and of one
another. Photographs of the incident were taken and
presented during trial. Manalo further testified that she was the
one who prepared the drafts and revisions from Enrique before
the final copy of the will was made.
Likewise, Atty. Nolasco claimed that Enrique had been his
client for more than 20 years. Prior to August 10, 1996, the
latter consulted him in the preparation of the subject will and
furnished him the list of his properties for distribution among
his children. He prepared the will in accordance with Enrique's
instruction and that before the latter and the attesting
witnesses signed it in the presence of one another, he
translated the will which was written in English to Filipino and
added that Enrique was in good health and of sound mind at
that time.
On the other hand, the oppositors presented its lone witness,
Gregorio B. Paraon (Paraon), Officer-in-Charge of the Notarial
Section, Office of the Clerk of Court, RTC, Manila. His
testimony centered mainly on their findings that Atty. Nolasco
was not a notary public for the City of Manila in 1996, which on
cross examination was clarified after Paraon discovered that
Atty. Nolasco was commissioned as such for the years 1994 to
1997.
Ruling of the RTC
In the Decision dated August 26, 2005,5 the RTC disallowed
the probate of the will for failure to comply with Article 805 of
the Civil Code which requires a statement in the attestation
15
clause of the number of pages used upon which the will is
written. It held that while Article 809 of the same Code requires
mere substantial compliance of the form laid down in Article
805 thereof, the rule only applies if the number of pages is
reflected somewhere else in the will with no evidence aliunde
or extrinsic evidence required. While the acknowledgment
portion stated that the will consists of 7 pages including the
page on which the ratification and acknowledgment are
written, the RTC observed that it has 8 pages including the
acknowledgment portion. As such, it disallowed the will for not
having been executed and attested in accordance with law.
Aggrieved, Richard filed a Notice of Appeal which the RTC
granted in the Order dated October 26, 2005.6
Ruling of the Court of Appeals
On March 30, 2009,7 the CA issued the assailed decision
dismissing the appeal. It held that the RTC erroneously
granted Richard's appeal as the Rules of Court is explicit that
appeals in special proceedings, as in this case, must be made
through a record on appeal. Nevertheless, even on the merits,
the CA found no valid reason to deviate from the findings of
the RTC that the failure to state the number of pages of the will
in the attestation clause was fatal. It noted that while Article
809 of the Civil Code sanctions mere substantial compliance
with the formal requirements set forth in Article 805 thereof,
there was a total omission of such fact in the attestation
clause.
Moreover, while the acknowledgment of the will made mention
of "7 pages including the page on which the ratification and
acknowledgment are written," the will had actually 8 pages
including the acknowledgment portion thus, necessitating the
presentation of evidence aliunde to explain the discrepancy.
Richard's motion for reconsideration from the decision was
likewise denied in the second assailed Resolution8 dated
October 22, 2009.
Hence, the instant petition assailing the propriety of the CA's
decision.
Ruling of the Court
The petition lacks merit.
The provisions of the Civil Code on Forms of Wills, particularly,
Articles 805 and 809 of the Civil Code provide:
ART. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the presence
16
of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.1âwphi1
(underscoring supplied)
ART. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial
compliance with all the requirements of Article 805.
The law is clear that the attestation must state the number of
pages used upon which the will is written. The purpose of the
law is to safeguard against possible interpolation or omission
of one or some of its pages and prevent any increase or
decrease in the pages.9
While Article 809 allows substantial compliance for defects in
the form of the attestation clause, Richard likewise failed in
this respect. The statement in the Acknowledgment portion of
the subject last will and testament that it "consists of 7 pages
including the page on which the ratification and
acknowledgment are written"10 cannot be deemed substantial
compliance. The will actually consists of 8 pages including its
acknowledgment which discrepancy cannot be explained by
mere examination of the will itself but through the presentation
of evidence aliund.11 On this score is the comment of Justice
J.B.L. Reyes regarding the application of Article 809, to wit:
x x x The rule must be limited to disregarding those defects
that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All
these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can
be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the presence of
each other must substantially appear in the attestation clause,
being the only check against perjury in the probate
proceedings.12 (Emphasis supplied)
Hence, the CA properly sustained the disallowance of the will.
Moreover, it correctly ruled that Richard pursued the wrong
mode of appeal as Section 2(a), Rule 41 of the Rules of Court
explicitly provides that in special proceedings, as in this case,
the appeal shall be made by record on appeal.
WHEREFORE, premises considered, the petition is DENIED.
SO ORDERED.
17
G.R. No. L-30289 March 26, 1929
SERAPIA DE GALA vs. APOLINARIO GONZALES and
SINFOROSO ONA, OSTRAND, J.:
On November 23, 1920, Severina Gonzales executed a will in
which Serapia de Gala, a niece of Severina, was designated
executrix. The testatrix died in November, 1926, leaving no
heirs by force of law, and on December 2, 1926, Serapia,
through her counsel, presented the will for probate. Apolinario
Gonzales, a nephew of the deceased, filed an opposition to
the will on the ground that it had not been executed in
conformity with the provisions of section 618 of the Code of
Civil Procedure. On April 2, 1927, Serapia de Gala was
appointed special administratrix of the estate of the deceased.
She returned an inventory of the estate on March 31, 1927,
and made several demands upon Sinforoso Ona, the surviving
husband of the deceased, for the delivery to her of the
property inventoried and of which he was in possession.
On September 20, 1928, the Court of First Instance ordered
Sinforoso Ona to deliver to Serapia de Gala all the property
left by the deceased. Instead of delivering the property as
ordered, Sinforoso filed a motion asking the appointment of
Serapia de Gala as special administratrix be cancelled and
that he, Sinforoso, be appointed in her stead. The motion was
opposed by both Apolinario Gonzales and by Serapia de Gala,
but on March 3, 1928, it was nevertheless granted, Serapia
was removed, and Sinforoso was appointed special
administrator in her place, principally on the ground that he
had possession of the property in question and that his
appointment would simplify the proceedings.
In the meantime and after various continuances and delays,
the court below in an order dated January 20, 1928, declared
the will valid and admitted it to probate. All of the parties
appealed, Serapia de Gala from the order removing her from
the office of special administratrix, and Apolinario Gonzales
and Sinforoso Ona from the order probating the will.
Serapia's appeal requires but little discussion. The burden of
the argument of her counsel is that a special administrator
cannot be removed except for one or more of the causes
stated in section 653 of the Code of Civil Procedure. But that
section can only apply to executors and regular administrators,
and the office of a special administrator is quite different from
that of regular administrator. The appointment of a special
administrator lies entirely in the sound discretion of the court;
the function of such an administrator is only to collect and
preserve the property of the deceased and to return an
inventory thereof; he cannot be sued by a creditor and cannot
pay any debts of the deceased. The fact that no appeal can be
taken from the appointment of a special administrator indicates
that both his appointment and his removal are purely
discretionary, and we cannot find that the court below abused
its discretion in the present case. In removing Serapia de Gala
and appointing the present possessor of the property pending
the final determination of the validity of the will, the court
probably prevented useless litigation.
The appellants Sinforoso Ona and Apolinario Gonzales argue
that the will in question was not executed in the form
prescribed by section 618 of the Code of Civil Procedure as
amended by Act No. 2645. That section reads as follows:
18
No will, except as provided in the preceding section, shall be
valid to pass any estate, real or personal, nor charge or affect
the same, unless it be written in the language or dialect known
by the testator and signed by him, or by the testator's name
written by some other person in his presence, and by his
express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of
each other. The testator or the person requested by him to
write his name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof, on the
left margin, and said pages shall be numbered correlatively in
letters placed on the upper part of each sheet. The attestation
shall state the number of sheets or pages used, upon which
the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write
his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all
pages thereof in the presence of the testator and of each
other.
The principal points raised by the appeal are (1) that the
person requested to sign the name of the testatrix signed only
the latter's name and not her own; (2) that the attestation
clause does not mention the placing of the thumb-mark of the
testatrix in the will; and (3) that the fact that the will had been
signed in the presence of the witnesses was not stated in the
attestation clause but only in the last paragraph of the body of
the will.
The first point can best be answered by quoting the language
of this court in the case of the Estate of Maria Salva, G. R. No.
26881:1
An examination of the will in question disclosed that it contains
five pages. The name of the old woman, Maria Salva, was
written on the left hand margin of the first four pages and at
the end of the will. About in the center of her name she placed
her thumb-mark. About in the center of her name she placed
her thumb-mark. The three witnesses likewise signed on the
left-hand margin and at the end of the will.
On these facts, the theory of the trial judge was that under the
provisions of section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, it was essential to the validity of the
will that the person writing the name of the maker of the will
also sign. Under the law prior to the amendment, it had been
held by this court that where a testator is unable to write and
his name is signed by another at his request, in his presence
and in that of the subscribing witnesses thereto, it is
unimportant, so far as the validity of the will is concerned,
whether the person who writes the name of the testator signs
his own or not. (Barut vs. Cabacungan (1912), 21 Phil., 461).
But his Honor, the trial judge emphasizes that the amendment
introduced into the law the following sentence: 'The testator or
the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, on the left margin . . ..' This
requirement, it is said, was not lived up to in this instance.
There is, however, an entirely different view which can be
taken of the situation. This is that the testatrix placed her
thumb-mark on the will in the proper places. When, therefore,
the law says that the will shall be 'signed' by the testator or
testatrix, the law is fulfilled not only by the customary written
signature but by the testator or testatrix' thumb-mark. The
19
construction put upon the word 'signed' by most courts is the
original meaning of a signum or sign, rather than the derivative
meaning of a sign manual or handwriting. A statute requiring a
will to be 'signed' is satisfied if the signature is made by the
testator's mark. (28 R. C. L., pp. 116-117).
The opinion quoted is exactly in point. The testatrix
thumb-mark appears in the center of her name as written by
Serapia de Gala on all of the pages of the will.
The second and third points raised by Sinforoso Ona and
Apolinario Gonzales are sufficiently refuted by quoting the last
clause of the body of the will together with the attestation
clause, both of which are written in the Tagalog dialect. These
clauses read as follows:
Sa katunayang ang kasulatang ito, na may anim na dahon, ay
siyang naglalaman ng aking huling tagubilin, at sa hindi ko
kaalamang lumagda ng aking pangalan, ipinamanhik ko sa
aking pamankin na si Serapia de Gala na isulat ang aking
pangalan at apellido, at sa tapat ay inilagda ko ang titik ng
kanang daliri kong hinlalaki, sa walkas at sa bawat isa sa anim
(6) na dahon ng kasulatang ito, at ito's ginawa niya sa
kautusan at sa harap ko at ng tatlong saksing nagpapatutuo
sa huli ngayon ika dalawang po't tatlo ng Nobiembre ng 1920.
(Sgd.) SEVERINA GONZALES
Pinatutunayan namin na ang kasulatang ito na binubuo ng
anim (6) na dahon na pinirmahan sa harap namin ni Serapia
de Gala sa kahilingan ni Severina Gonzales sa wakas at sa
mga gilid ng bawa't isa sa anim (6) na dahon at isinaysay na
ang kasulatang ito ay siyang huling habilin o testamento ni
Severina Gonzales, ay pinirmahan namin, bilang mga saksi sa
wakas at sa gilid ng bawa't dahon sa harap at sa kahilingan ng
tinurang testadora, at ang bawat isa sa amin ay pumirma sa
harap ng lahat at bawat isa sa amin, ngayon ika dalawang po't
tatlo ng noviembre ng taong 1920 ng taong 1920.
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD
The translation in English of the clauses quoted reads as
follows:
In virtue of this will, consisting of six pages, that contains my
last wish, and because of the fact that I cannot sign my name,
I request my niece Serapia de Gala to write my name, and
above this I placed my right thumb-mark at the end of this will
and to each of the six pages of this document, and this was
done at my direction and in the presence of three attesting
witnesses, this 23rd of November, 1920.
(Sgd.) SEVERINA GONZALES
We certify that this document, which is composed of six (6)
sheets and was signed in our presence by Serapia de Gala at
the request of Severina Gonzales at the end and on the
margins of each of the six (6) sheets and was declared to
contain the last will and testament of Severina Gonzales, was
signed by us as witnesses at the end and on the margins of
each sheet in the presence and at the request of said testatrix,
and each of us signed in the presence of all and each of us,
this 23rd day of November of the year 1920.
20
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD

As will be seen, it is not mentioned in the attestation clause

that the testatrix signed by thumb-mark, but it does there
appear that the signature was affixed in the presence of the
witnesses, and the form of the signature is sufficiently
described and explained in the last clause of the body of the
will. It maybe conceded that the attestation clause is not
artistically drawn and that, standing alone, it does not quite
meet the requirements of the statute, but taken in connection
with the last clause of the body of the will, it is fairly clear and
sufficiently carries out the legislative intent; it leaves no
possible doubt as to the authenticity of the document.

The contention of the appellants Sinforoso Ona and Apolinario

Gonzales that the fact that the will had been signed in the
presence of the witnesses was not stated in the attestation
clause is without merit; the fact is expressly stated in that
clause.

In our opinion, the will is valid, and the orders appealed from
are hereby affirmed without costs. So ordered.

21
G.R. No. 1641 January 19, 1906
GERMAN JABONETA, vs. RICARDO GUSTILO
CARSON, J.:
In these proceedings probate was denied the last will and
testament of Macario Jaboneta, deceased, because the lower
court was of the opinion from the evidence adduced at the
hearing that Julio Javellana, one of the witnesses, did not
attach his signature thereto in the presence of Isabelo Jena,
another of the witnesses, as required by the provisions of
section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of
record on this particular point, being a part of the testimony of
the said Isabeo Jena:
Q. 1641 Who first signed the will?
A. 1641 I signed it first, and afterwards Aniceto and the
others.
Q. 1641 Who were those others to whom you have just
referred?
A. 1641 After the witness Aniceto signed the will I left
the house, because I was in a hurry, and at the moment when I
was leaving I saw Julio Javellana with the pen in his hand in
position ready to sign (en actitud de firmar). I believe he
signed, because he was at the table. . . .
Q. 1641 State positively whether Julio Javellana did or
did not sign as a witness to the will.
A. 1641 I can't say certainly, because as I was leaving
the house I saw Julio Javellana with the pen in his hand, in
position ready to sign. I believe he signed.
Q. 1641 Why do you believe Julio Javellana signed?
A. 1641 Because he had the pen in his hand, which was
resting on the paper, though I did not actually see him sign.
Q. 1641 Explain this contradictory statement.
A. 1641 After I signed I asked permission to leave,
because I was in a hurry, and while I was leaving Julio had
already taken the pen in his hand, as it appeared, for the
purpose of signing, and when I was near the door I happened
to turn my face and I saw that he had his hand with the pen
resting on the will, moving it as if for the purpose of signing.
Q. 1641 State positively whether Julio moved his hand
with the pen as if for the purpose of signing, or whether he was
signing
A. I believe he was signing.
The truth and accuracy of the testimony of this witness does
not seem to have been questioned by any of the parties to the
proceedings, but the court, nevertheless, found the following
facts:
22
On the 26th day of December, 1901, Macario Jaboneta
executed under the following circumstances the document in
question, which has been presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this
province, he ordered that the document in question be written,
and calling Julio Javellana, Aniceto Jalbuena, and Isabelo
Jena as witnesses, executed the said document as his will.
They were all together, and were in the room where Jaboneta
was, and were present when he signed the document, Isabelo
Jena signing afterwards as a witness, at his request, and in his
presence and in the presence of the other two witnesses.
Aniceto Jalbuena then signed as a witness in the presence of
the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a
hurry to leave, took his hat and left the room. As he was
leaving the house Julio Javellana took the pen in his hand and
put himself in position to sign the will as a witness, but did not
sign in the presence of Isabelo Jena; but nevertheless, after
Jena had left the room the said Julio Javellana signed as a
witness in the presence of the testator and of the witness
Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as
holds that the signature of Javellana was not signed in the
presence of Jena, in compliance with the provisions of section
618 of the Code of Civil Procedure. The fact that Jena was still
in the room when he saw Javellana moving his hand and pen
in the act of affixing his signature to the will, taken together
with the testimony of the remaining witnesses which shows
that Javellana did in fact there and then sign his name to the
will, convinces us that the signature was affixed in the
presence of Jena. The fact that he was in the act of leaving,
and that his back was turned while a portion of the name of the
witness was being written, is of no importance. He, with the
other witnesses and the testator, had assembled for the
purpose of executing the testament, and were together in the
same room for that purpose, and at the moment when the
witness Javellana signed the document he was actually and
physically present and in such position with relation to
Javellana that he could see everything which took place by
merely casting his eyes in the proper direction, and without
any physical obstruction to prevent his doing so, therefore we
are of opinion that the document was in fact signed before he
finally left the room.
The purpose of a statutory requirement that the witness sign in
the presence of the testator is said to be that the testator may
have ocular evidence of the identity of the instrument
subscribed by the witness and himself, and the generally
accepted tests of presence are vision and mental
apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599,
and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that
it is sufficient if the witnesses are together for the purpose of
witnessing the execution of the will, and in a position to
actually see the testator write, if they choose to do so; and
there are many cases which lay down the rule that the true test
of vision is not whether the testator actually saw the witness
sign, but whether he might have seen him sign, considering
his mental and physical condition and position at the time of
the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
23
The principles on which these cases rest and the tests of
presence as between the testator and the witnesses are
equally applicable in determining whether the witnesses
signed the instrument in the presence of each other, as
required by the statute, and applying them to the facts proven
in these proceedings we are of opinion that the statutory
requisites as to the execution of the instrument were complied
with, and that the lower court erred in denying probate to the
will on the ground stated in the ruling appealed from.

We are of opinion from the evidence of record that the

instrument propounded in these proceedings was satisfactorily
proven to be the last will and testament of Macario Jaboneta,
deceased, and that it should therefore be admitted to probate.
The judgment of the trial court is reversed, without especial
condemnation of costs, and after twenty days the record will
be returned to the court form whence it came, where the
proper orders will be entered in conformance herewith. So
ordered.

24
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE
JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO,
oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad
Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila
admitting to probate the document and its duplicate, marked
as Exhibits "A" and "A-1", as the true last will and testament of
Josefa Villacorte, deceased, and appointing as executor Celso
Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a
petition for the allowance and admission to probate of the
original, Exhibit "A" as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner Celso Icasiano
as executor thereof.
The court set the proving of the alleged will for November 8,
1958, and caused notice thereof to be published for three (3)
successive weeks, previous to the time appointed, in the
newspaper "Manila chronicle", and also caused personal
service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the
testatrix, filed her opposition; and on November 10, 1958, she
petitioned to have herself appointed as a special administrator,
to which proponent objected. Hence, on November 18, 1958,
the court issued an order appointing the Philippine Trust
Company as special administrator. 1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix,
also filed a manifestation adopting as his own Natividad's
opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a
motion for the admission of an amended and supplemental
petition, alleging that the decedent left a will executed in
duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which
he allegedly found only on or about May 26, 1959. On June
17, 1959, oppositors Natividad Icasiano de Gomez and
Enrique Icasiano filed their joint opposition to the admission of
the amended and supplemental petition, but by order of July
20, 1959, the court admitted said petition, and on July 30,
1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective
evidence, and after several hearings the court issued the order
admitting the will and its duplicate to probate. From this order,
the oppositors appealed directly to this Court, the amount
involved being over P200,000.00, on the ground that the same
is contrary to law and the evidence.
25

The evidence presented for the petitioner is to the effect that
Josefa Villacorte died in the City of Manila on September 12,
1958; that on June 2, 1956, the late Josefa Villacorte executed
a last will and testament in duplicate at the house of her
daughter Mrs. Felisa Icasiano at Pedro Guevara Street,
Manila, published before and attested by three instrumental
witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and
that the will was actually prepared by attorney Fermin
Samson, who was also present during the execution and
signing of the decedent's last will and testament, together with
former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and
testament, attorneys Torres and Natividad were in the
Philippines at the time of the hearing, and both testified as to
the due execution and authenticity of the said will. So did the
Notary Public before whom the will was acknowledged by the
testatrix and attesting witnesses, and also attorneys Fermin
Samson, who actually prepared the document. The latter also
testified upon cross examination that he prepared one original
and two copies of Josefa Villacorte last will and testament at
his house in Baliuag, Bulacan, but he brought only one original
and one signed copy to Manila, retaining one unsigned copy in
Bulacan.
The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition and
marked as Exhibit "A" consists of five pages, and while signed
at the end and in every page, it does not contain the signature
of one of the attesting witnesses, Atty. Jose V. Natividad, on
page three (3) thereof; but the duplicate copy attached to the
amended and supplemental petition and marked as Exhibit
"A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to
show that the original of the will and its duplicate were
subscribed at the end and on the left margin of each and every
page thereof by the testatrix herself and attested and
subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for
the missing signature of attorney Natividad on page three (3)
of the original); that pages of the original and duplicate of said
will were duly numbered; that the attestation clause thereof
contains all the facts required by law to be recited therein and
is signed by the aforesaid attesting witnesses; that the will is
written in the language known to and spoken by the testatrix
that the attestation clause is in a language also known to and
spoken by the witnesses; that the will was executed on one
single occasion in duplicate copies; and that both the original
and the duplicate copies were duly acknowledged before
Notary Public Jose Oyengco of Manila on the same date June
2, 1956.
Witness Natividad who testified on his failure to sign page
three (3) of the original, admits that he may have lifted two
pages instead of one when he signed the same, but affirmed
that page three (3) was signed in his presence.
26
Oppositors-appellants in turn introduced expert testimony to
the effect that the signatures of the testatrix in the duplicate
(Exhibit "A-1") are not genuine nor were they written or affixed
on the same occasion as the original, and further aver that
granting that the documents were genuine, they were
executed through mistake and with undue influence and
pressure because the testatrix was deceived into adopting as
her last will and testament the wishes of those who will stand
to benefit from the provisions of the will, as may be inferred
from the facts and circumstances surrounding the execution of
the will and the provisions and dispositions thereof, whereby
proponents-appellees stand to profit from properties held by
them as attorneys-in-fact of the deceased and not enumerated
or mentioned therein, while oppositors-appellants are enjoined
not to look for other properties not mentioned in the will, and
not to oppose the probate of it, on penalty of forfeiting their
share in the portion of free disposal.
We have examined the record and are satisfied, as the trial
court was, that the testatrix signed both original and duplicate
copies (Exhibits "A" and "A-1", respectively) of the will
spontaneously, on the same in the presence of the three
attesting witnesses, the notary public who acknowledged the
will; and Atty. Samson, who actually prepared the documents;
that the will and its duplicate were executed in Tagalog, a
language known to and spoken by both the testator and the
witnesses, and read to and by the testatrix and Atty. Fermin
Samson, together before they were actually signed; that the
attestation clause is also in a language known to and spoken
by the testatrix and the witnesses. The opinion of expert for
oppositors, Mr. Felipe Logan, that the signatures of the
testatrix appearing in the duplicate original were not written by
the same had which wrote the signatures in the original will
leaves us unconvinced, not merely because it is directly
contradicted by expert Martin Ramos for the proponents, but
principally because of the paucity of the standards used by
him to support the conclusion that the differences between the
standard and questioned signatures are beyond the writer's
range of normal scriptural variation. The expert has, in fact,
used as standards only three other signatures of the testatrix
besides those affixed to the original of the testament (Exh. A);
and we feel that with so few standards the expert's opinion and
the signatures in the duplicate could not be those of the
testatrix becomes extremely hazardous. This is particularly so
since the comparison charts Nos. 3 and 4 fail to show
convincingly that the are radical differences that would justify
the charge of forgery, taking into account the advanced age of
the testatrix, the evident variability of her signatures, and the
effect of writing fatigue, the duplicate being signed right the
original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in
the admitted and questioned signatures does not appear
reliable, considering the standard and challenged writings
were affixed to different kinds of paper, with different surfaces
and reflecting power. On the whole, therefore, we do not find
the testimony of the oppositor's expert sufficient to overcome
that of the notary and the two instrumental witnesses, Torres
and Natividad (Dr. Diy being in the United States during the
trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence.
The fact that some heirs are more favored than others is proof
of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14
27
Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of
apportionment is the usual reason for making a testament;
otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into
other property and that they should respect the distribution
made in the will, under penalty of forfeiture of their shares in
the free part do not suffice to prove fraud or undue influence.
They appear motivated by the desire to prevent prolonged
litigation which, as shown by ordinary experience, often results
in a sizeable portion of the estate being diverted into the hands
of non-heirs and speculators. Whether these clauses are valid
or not is a matter to be litigated on another occassion. It is also
well to note that, as remarked by the Court of Appeals in
Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue
influence are mutually repugnant and exclude each other; their
joining as grounds for opposing probate shows absence of
definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of
one witness to affix his signature to one page of a testament,
due to the simultaneous lifting of two pages in the course of
signing, is not per se sufficient to justify denial of probate.
Impossibility of substitution of this page is assured not only the
fact that the testatrix and two other witnesses did sign the
defective page, but also by its bearing the coincident imprint of
the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not
be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness
over whose conduct she had no control, where the purpose of
the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record
attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or the attestation
clause".
That the failure of witness Natividad to sign page three (3) was
entirely through pure oversight is shown by his own testimony
as well as by the duplicate copy of the will, which bears a
complete set of signatures in every page. The text of the
attestation clause and the acknowledgment before the Notary
Public likewise evidence that no one was aware of the defect
at the time.
This would not be the first time that this Court departs from a
strict and literal application of the statutory requirements,
where the purposes of the law are otherwise satisfied. Thus,
despite the literal tenor of the law, this Court has held that a
testament, with the only page signed at its foot by testator and
witnesses, but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476); and that
despite the requirement for the correlative lettering of the
pages of a will, the failure to make the first page either by
letters or numbers is not a fatal defect (Lopez vs. Liboro, 81
Phil. 429). These precedents exemplify the Court's policy to
require satisfaction of the legal requirements in order to guard
against fraud and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled
28
to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is
probatable. If the original is valid and can be probated, then
the objection to the signed duplicate need not be considered,
being superfluous and irrelevant. At any rate, said duplicate,
Exhibit A-1, serves to prove that the omission of one signature
in the third page of the original testament was inadvertent and
not intentional.

That the carbon duplicate, Exhibit A-1, was produced and

admitted without a new publication does not affect the
jurisdiction of the probate court, already conferred by the
original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate,
and no showing is made that new interests were involved (the
contents of Exhibit A and A-1 are admittedly identical); and
appellants were duly notified of the proposed amendment. It is
nowhere proved or claimed that the amendment deprived the
appellants of any substantial right, and we see no error in
admitting the amended petition.

IN VIEW OF THE FOREGOING, the decision appealed from is

affirmed, with costs against appellants.

29
G.R. No. 15566 September 14, 1921
EUTIQUIA AVERA, petitioner-appellee, Vs. MARINO GARCIA,
and JUAN RODRIGUEZ, as guardian of the minors Cesar
Garcia and Jose Garcia, objectors-appellants.
STREET, J.:
In proceedings in the court below, instituted by Eutiquia Avera
for probate of the will of one Esteban Garcia, contest was
made by Marino Garcia and Juan Rodriguez, the latter in the
capacity of guardian for the minors Jose Garcia and Cesar
Garcia. Upon the date appointed for the hearing, the
proponent of the will introduced one of the three attesting
witnesses who testified — with details not necessary to be
here specified — that the will was executed with all necessary
external formalities, and that the testator was at the time in full
possession of disposing faculties. Upon the latter point the
witness was corroborated by the person who wrote the will at
the request of the testator. Two of the attesting witnesses were
not introduced, nor was their absence accounted for by the
proponent of the will.
When the proponent rested the attorney for the opposition
introduced a single witness whose testimony tended to show
in a vague and indecisive manner that at the time the will was
made the testator was so debilitated as to be unable to
comprehend what he was about.
After the cause had been submitted for determination upon the
proof thus presented, the trial judge found that the testator at
the time of the making of the will was of sound mind and
disposing memory and that the will had been properly
executed. He accordingly admitted the will to probate.
From this judgment an appeal was taken in behalf of the
persons contesting the will, and the only errors here assigned
have reference to the two following points, namely, first,
whether a will can be admitted to probate, where opposition is
made, upon the proof of a single attesting witness, without
producing or accounting for the absence of the other two; and,
secondly, whether the will in question is rendered invalid by
reason of the fact that the signature of the testator and of the
three attesting witnesses are written on the right margin of
each page of the will instead of the left margin.
Upon the first point, while it is undoubtedly true that an
uncontested will bay be proved by the testimony of only one of
the three attesting witnesses, nevertheless in Cabang vs.
Delfinado (34 Phil., 291), this court declared after an elaborate
examination of the American and English authorities that when
a contest is instituted, all of the attesting witnesses must be
examined, if alive and within reach of the process of the court.
In the present case no explanation was made at the trial as to
why all three of the attesting witnesses were not produced, but
the probable reason is found in the fact that, although the
petition for the probate of this will had been pending from
December 21, 1917, until the date set for the hearing, which
was April 5, 1919, no formal contest was entered until the very
day set for the hearing; and it is probable that the attorney for
the proponent, believing in good faith the probate would not be
contested, repaired to the court with only one of the three
attesting witnesses at hand, and upon finding that the will was
30
contested, incautiously permitted the case to go to proof
without asking for a postponement of the trial in order that he
might produce all the attesting witnesses.
Although this circumstance may explain why the three
witnesses were not produced, it does not in itself supply any
basis for changing the rule expounded in the case above
referred to; and were it not for a fact now to be mentioned, this
court would probably be compelled to reverse this case on the
ground that the execution of the will had not been proved by a
sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the
appellant in the lower court either upon the submission of the
cause for determination in that court or upon the occasion of
the filing of the motion for a new trial. Accordingly it is insisted
for the appellee that this question cannot now be raised for the
first time in this court. We believe this point is well taken, and
the first assignment of error must be declared not be well
taken. This exact question has been decided by the Supreme
Court of California adversely to the contention of the appellant,
and we see no reason why the same rule of practice should
not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reason why the appellate tribunals are
disinclined to permit certain questions to be raised for the first
time in the second instance. In the first place it eliminates the
judicial criterion of the Court of First Instance upon the point
there presented and makes the appellate court in effect a court
of first instance with reference to that point, unless the case is
remanded for a new trial. In the second place, it permits, if it
does not encourage, attorneys to trifle with the administration
of justice by concealing from the trial court and from their
opponent the actual point upon which reliance is placed, while
they are engaged in other discussions more simulated than
real. These considerations are, we think, decisive.
In ruling upon the point above presented we do not wish to be
understood as laying down any hard and fast rule that would
prove an embarrassment to this court in the administration of
justice in the future. In one way or another we are constantly
here considering aspects of cases and applying doctrines
which have escaped the attention of all persons concerned in
the litigation below; and this is necessary if this court is to
contribute the part due from it in the correct decision of the
cases brought before it. What we mean to declare is that when
we believe that substantial justice has been done in the Court
of First Instance, and the point relied on for reversal in this
court appears to be one which ought properly to have been
presented in that court, we will in the exercise of a sound
discretion ignore such question relates a defect which might
have been cured in the Court of First Instance if attention had
been called to it there. In the present case, if the appellant had
raised this question in the lower court, either at the hearing or
upon a motion for a new trial, that court would have had the
power, and it would have been is duty, considering the tardy
institution of the contest, to have granted a new trial in order
that all the witnesses to the will might be brought into court.
But instead of thus calling the error to the attention of the court
and his adversary, the point is first raised by the appellant in
this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra,
contains nothing inconsistent with the ruling we now make, for
31
it appears from the opinion in that case that the proponent of
the will had obtained an order for a republication and new trial
for the avowed purpose of presenting the two additional
attesting witnesses who had not been previously examined,
but nevertheless subsequently failed without any apparent
reason to take their testimony. Both parties in that case were
therefore fully apprised that the question of the number of
witnesses necessary to prove the will was in issue in the lower
court.
The second point involved in this case is whether, under
section 618 of the Code of Civil Procedure, as amended by
Act No. 2645, it is essential to the validity of a will in this
jurisdiction that the names of the testator and the instrumental
witnesses should be written on the left margin of each page,
as required in said Act, and not upon the right margin, as in
the will now before us; and upon this we are of the opinion that
the will in question is valid. It is true that the statute says that
the testator and the instrumental witnesses shall sign their
names on the left margin of each and every page; and it is
undeniable that the general doctrine is to the effect that all
statutory requirements as to the execution of wills must be fully
complied with. The same doctrine is also deducible from cases
heretofore decided by this court.
Still some details at times creep into legislative enactments
which are so trivial it would be absurd to suppose that the
Legislature could have attached any decisive importance to
them. The provision to the effect that the signatures of the
testator and witnesses shall be written on the left margin of
each page — rather than on the right margin — seems to be
this character. So far as concerns the authentication of the will,
and of every part thereof, it can make no possible difference
whether the names appear on the left or no the right margin,
provided they are on one or the other. In Caraig vs. Tatlonghari
(R. G. No. 12558, decided March 23, 1918, not reported), this
court declared a will void which was totally lacking in the
signatures required to be written on its several pages; and in
the case of Re estate of Saguinsin (41 Phil., 875), a will was
likewise declared void which contained the necessary
signatures on the margin of each leaf ( folio), but not in the
margin of each page containing written matter.
The instrument now before us contains the necessary
signatures on every page, and the only point of deviation from
the requirement of the statute is that these signatures appear
in the right margin instead of the left. By the mode of signing
adopted every page and provision of the will is authenticated
and guarded from possible alteration in exactly the same
degree that it would have been protected by being signed in
the left margin; and the resources of casuistry could be
exhausted without discovering the slightest difference between
the consequences of affixing the signatures in one margin or
the other.
The same could not be said of a case like that of Estate of
Saguinsin, supra, where only the leaves, or alternate pages,
were signed and not each written page; for as observed in that
case by our late lamented Chief Justice, it was possible that in
the will as there originally executed by the testratrix only the
alternative pages had been used, leaving blanks on the
reverse sides, which conceivably might have been filled in
subsequently.
32
The controlling considerations on the point now before us were
well stated In Re will of Abangan (40 Phil., 476, 479), where
the court, speaking through Mr. Justice Avanceña, in a case
where the signatures were placed at the bottom of the page
and not in the margin, said:

The object of the solemnities surrounding the execution of wills

is to close the door against bad faith and fraud, to avoid
substitution o will and testaments and to guarantee their truth
and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded.

In the case before us, where ingenuity could not suggest any
possible prejudice to any person, as attendant upon the actual
deviation from the letter of the law, such deviation must be
considered too trivial to invalidate the instrument.

It results that the legal errors assigned are not sustainable,

and the judgment appealed from will be affirmed. It is so
ordered, with costs against the appellants.

33
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE
JOSEFA VILLACORTE. CELSO ICASIANO, vs. NATIVIDAD
ICASIANO and ENRIQUE ICASIANO
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila
admitting to probate the document and its duplicate, marked
as Exhibits "A" and "A-1", as the true last will and testament of
Josefa Villacorte, deceased, and appointing as executor Celso
Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a
petition for the allowance and admission to probate of the
original, Exhibit "A" as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner Celso Icasiano
as executor thereof.
The court set the proving of the alleged will for November 8,
1958, and caused notice thereof to be published for three (3)
successive weeks, previous to the time appointed, in the
newspaper "Manila chronicle", and also caused personal
service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the
testatrix, filed her opposition; and on November 10, 1958, she
petitioned to have herself appointed as a special administrator,
to which proponent objected. Hence, on November 18, 1958,
the court issued an order appointing the Philippine Trust
Company as special administrator. 1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix,
also filed a manifestation adopting as his own Natividad's
opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a
motion for the admission of an amended and supplemental
petition, alleging that the decedent left a will executed in
duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which
he allegedly found only on or about May 26, 1959. On June
17, 1959, oppositors Natividad Icasiano de Gomez and
Enrique Icasiano filed their joint opposition to the admission of
the amended and supplemental petition, but by order of July
20, 1959, the court admitted said petition, and on July 30,
1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective
evidence, and after several hearings the court issued the order
admitting the will and its duplicate to probate. From this order,
the oppositors appealed directly to this Court, the amount
involved being over P200,000.00, on the ground that the same
is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that
Josefa Villacorte died in the City of Manila on September 12,
1958; that on June 2, 1956, the late Josefa Villacorte executed
a last will and testament in duplicate at the house of her
daughter Mrs. Felisa Icasiano at Pedro Guevara Street,
Manila, published before and attested by three instrumental
witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney Jose
34
Oyengco Ong, Notary Public in and for the City of Manila; and
that the will was actually prepared by attorney Fermin
Samson, who was also present during the execution and
signing of the decedent's last will and testament, together with
former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and
testament, attorneys Torres and Natividad were in the
Philippines at the time of the hearing, and both testified as to
the due execution and authenticity of the said will. So did the
Notary Public before whom the will was acknowledged by the
testatrix and attesting witnesses, and also attorneys Fermin
Samson, who actually prepared the document. The latter also
testified upon cross examination that he prepared one original
and two copies of Josefa Villacorte last will and testament at
his house in Baliuag, Bulacan, but he brought only one original
and one signed copy to Manila, retaining one unsigned copy in
Bulacan.
The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition and
marked as Exhibit "A" consists of five pages, and while signed
at the end and in every page, it does not contain the signature
of one of the attesting witnesses, Atty. Jose V. Natividad, on
page three (3) thereof; but the duplicate copy attached to the
amended and supplemental petition and marked as Exhibit
"A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to
show that the original of the will and its duplicate were
subscribed at the end and on the left margin of each and every
page thereof by the testatrix herself and attested and
subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for
the missing signature of attorney Natividad on page three (3)
of the original); that pages of the original and duplicate of said
will were duly numbered; that the attestation clause thereof
contains all the facts required by law to be recited therein and
is signed by the aforesaid attesting witnesses; that the will is
written in the language known to and spoken by the testatrix
that the attestation clause is in a language also known to and
spoken by the witnesses; that the will was executed on one
single occasion in duplicate copies; and that both the original
and the duplicate copies were duly acknowledged before
Notary Public Jose Oyengco of Manila on the same date June
2, 1956.
Witness Natividad who testified on his failure to sign page
three (3) of the original, admits that he may have lifted two
pages instead of one when he signed the same, but affirmed
that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to
the effect that the signatures of the testatrix in the duplicate
(Exhibit "A-1") are not genuine nor were they written or affixed
on the same occasion as the original, and further aver that
granting that the documents were genuine, they were
executed through mistake and with undue influence and
pressure because the testatrix was deceived into adopting as
her last will and testament the wishes of those who will stand
to benefit from the provisions of the will, as may be inferred
from the facts and circumstances surrounding the execution of
the will and the provisions and dispositions thereof, whereby
35
proponents-appellees stand to profit from properties held by
them as attorneys-in-fact of the deceased and not enumerated
or mentioned therein, while oppositors-appellants are enjoined
not to look for other properties not mentioned in the will, and
not to oppose the probate of it, on penalty of forfeiting their
share in the portion of free disposal.
We have examined the record and are satisfied, as the trial
court was, that the testatrix signed both original and duplicate
copies (Exhibits "A" and "A-1", respectively) of the will
spontaneously, on the same in the presence of the three
attesting witnesses, the notary public who acknowledged the
will; and Atty. Samson, who actually prepared the documents;
that the will and its duplicate were executed in Tagalog, a
language known to and spoken by both the testator and the
witnesses, and read to and by the testatrix and Atty. Fermin
Samson, together before they were actually signed; that the
attestation clause is also in a language known to and spoken
by the testatrix and the witnesses. The opinion of expert for
oppositors, Mr. Felipe Logan, that the signatures of the
testatrix appearing in the duplicate original were not written by
the same had which wrote the signatures in the original will
leaves us unconvinced, not merely because it is directly
contradicted by expert Martin Ramos for the proponents, but
principally because of the paucity of the standards used by
him to support the conclusion that the differences between the
standard and questioned signatures are beyond the writer's
range of normal scriptural variation. The expert has, in fact,
used as standards only three other signatures of the testatrix
besides those affixed to the original of the testament (Exh. A);
and we feel that with so few standards the expert's opinion and
the signatures in the duplicate could not be those of the
testatrix becomes extremely hazardous. This is particularly so
since the comparison charts Nos. 3 and 4 fail to show
convincingly that the are radical differences that would justify
the charge of forgery, taking into account the advanced age of
the testatrix, the evident variability of her signatures, and the
effect of writing fatigue, the duplicate being signed right the
original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in
the admitted and questioned signatures does not appear
reliable, considering the standard and challenged writings
were affixed to different kinds of paper, with different surfaces
and reflecting power. On the whole, therefore, we do not find
the testimony of the oppositor's expert sufficient to overcome
that of the notary and the two instrumental witnesses, Torres
and Natividad (Dr. Diy being in the United States during the
trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence.
The fact that some heirs are more favored than others is proof
of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14
Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of
apportionment is the usual reason for making a testament;
otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into
other property and that they should respect the distribution
made in the will, under penalty of forfeiture of their shares in
the free part do not suffice to prove fraud or undue influence.
They appear motivated by the desire to prevent prolonged
litigation which, as shown by ordinary experience, often results
in a sizeable portion of the estate being diverted into the hands
of non-heirs and speculators. Whether these clauses are valid
36
or not is a matter to be litigated on another occassion. It is also
well to note that, as remarked by the Court of Appeals in
Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue
influence are mutually repugnant and exclude each other; their
joining as grounds for opposing probate shows absence of
definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of
one witness to affix his signature to one page of a testament,
due to the simultaneous lifting of two pages in the course of
signing, is not per se sufficient to justify denial of probate.
Impossibility of substitution of this page is assured not only the
fact that the testatrix and two other witnesses did sign the
defective page, but also by its bearing the coincident imprint of
the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not
be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness
over whose conduct she had no control, where the purpose of
the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record
attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or the attestation
clause".
That the failure of witness Natividad to sign page three (3) was
entirely through pure oversight is shown by his own testimony
as well as by the duplicate copy of the will, which bears a
complete set of signatures in every page. The text of the
attestation clause and the acknowledgment before the Notary
Public likewise evidence that no one was aware of the defect
at the time.
This would not be the first time that this Court departs from a
strict and literal application of the statutory requirements,
where the purposes of the law are otherwise satisfied. Thus,
despite the literal tenor of the law, this Court has held that a
testament, with the only page signed at its foot by testator and
witnesses, but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476); and that
despite the requirement for the correlative lettering of the
pages of a will, the failure to make the first page either by
letters or numbers is not a fatal defect (Lopez vs. Liboro, 81
Phil. 429). These precedents exemplify the Court's policy to
require satisfaction of the legal requirements in order to guard
against fraud and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled
to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is
probatable. If the original is valid and can be probated, then
the objection to the signed duplicate need not be considered,
being superfluous and irrelevant. At any rate, said duplicate,
Exhibit A-1, serves to prove that the omission of one signature
in the third page of the original testament was inadvertent and
not intentional.
37
That the carbon duplicate, Exhibit A-1, was produced and
admitted without a new publication does not affect the
jurisdiction of the probate court, already conferred by the
original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate,
and no showing is made that new interests were involved (the
contents of Exhibit A and A-1 are admittedly identical); and
appellants were duly notified of the proposed amendment. It is
nowhere proved or claimed that the amendment deprived the
appellants of any substantial right, and we see no error in
admitting the amended petition.

IN VIEW OF THE FOREGOING, the decision appealed from is

affirmed, with costs against appellants.

38
G.R. No. L-5826 April 29, 1953
Testate estate of the late VICENTE CAGRO. JESUSA
CAGRO, vs. PELAGIO CAGRO, ET AL.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision
of the Court of First Instance of Samar, admitting to probate
the will allegedly executed by Vicente Cagro who died in
Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the
will is fatally defective, because its attestation clause is not
signed by the attesting witnesses. There is no question that
the signatures of the three witnesses to the will do not appear
at the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the
left-hand margin.
We are of the opinion that the position taken by the appellant
is correct. The attestation clause is 'a memorandum of the
facts attending the execution of the will' required by law to be
made by the attesting witnesses, and it must necessarily bear
their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of
their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the
three witnesses on the left-hand margin conform substantially
to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures
are in compliance with the legal mandate that the will be
signed on the left-hand margin of all its pages. If an attestation
clause not signed by the three witnesses at the bottom thereof,
be admitted as sufficient, it would be easy to add such clause
to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate
of the will in question denied. So ordered with costs against
the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially
complied with the formalities of the law and, therefore, should
be admitted to probate . It appears that the will was signed by
the testator and was attested by three instrumental witnesses,
not only at the bottom, but also on the left-hand margin. The
witnesses testified not only that the will was signed by the
testator in their presence and in the presence of each other
but also that when they did so, the attestation clause was
already written thereon. Their testimony has not been
contradicted. The only objection set up by the oppositors to the
validity of the will is the fact that the signatures of the
instrumental witnesses do not appear immediately after the
attestation clause.
39
This objection is too technical to be entertained. In the case of
Abangan vs. Abangan, (40 Phil., 476), this court said that
when the testamentary dispositions "are wholly written on only
one sheet signed at the bottom by the testator and three
witnesses (as the instant case),their signatures on the left
margin of said sheet would be completely purposeless." In
such a case, the court said, the requirement of the signatures
on the left hand margin was not necessary because the
purpose of the law — which is to avoid the substitution of any
of the sheets of the will, thereby changing the testator's
dispositions — has already been accomplished. We may say
the same thing in connection with the will under consideration
because while the three instrumental witnesses did not sign
immediately by the majority that it may have been only added
on a subsequent occasion and not at the uncontradicted
testimony of said witnesses to the effect that such attestation
clause was already written in the will when the same was
signed.
The following observation made by this court in the Abangan
case is very fitting:
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact
that it i not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary useless and frustrative of the testator's
last will, must be disregarded. (supra)
We should not also overlook the liberal trend of the New Civil
Code in the matter of interpretation of wills, the purpose of
which, in case of doubt, is to give such interpretation that
would have the effect of preventing intestacy (article 788 and
791, New Civil Code)
I am therefore of the opinion that the will in question should be
admitted to probate.
Feria, J., concurs.
TUASON, J., dissenting:
I cuncur in Mr. Justice Bautista's dissenting opinion and may
add that the majority decision erroneously sets down as a fact
that the attestation clause was no signed when the witnesses
signatures appear on the left margin and the real and only
question is whether such signatures are legally sufficient.
The only answers, in our humble opinion, is yes. The law on
wills does not provide that the attesting witness should sign
the clause at the bottom. In the absence of such provision,
there is no reason why signatures on the margin are not good.
A letter is not any the less the writter's simply because it was
signed, not at the conventional place but on the side or on top.
40
G.R. No. 103554 May 28, 1993
CANEDA vs. HON. COURT OF APPEALS and WILLIAM
CABRERA
REGALADO, J.:
Presented for resolution by this Court in the present petition for
review on certiorari is the issue of whether or not the
attestation clause contained in the last will and testament of
the late Mateo Caballero complies with the requirements of
Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo
Caballero, a widower without any children and already in the
twilight years of his life, executed a last will and testament at
his residence in Talisay, Cebu before three attesting witnesses,
namely, Cipriano Labuca, Gregorio Cabando and Flaviano
Toregosa. The said testator was duly assisted by his lawyer,
Atty. Emilio Lumontad, and a notary public, Atty. Filoteo
Manigos, in the preparation of that last will.1 It was declared
therein, among other things, that the testator was leaving by
way of legacies and devises his real and personal properties
to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo,
Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara,
all of whom do not appear to be related to the testator.2
Four months later, or on April 4, 1979, Mateo Caballero
himself filed a petition docketed as Special Proceeding No.
3899-R before Branch II of the then Court of First Instance of
Cebu seeking the probate of his last will and testament. The
probate court set the petition for hearing on August 20, 1979
but the same and subsequent scheduled hearings were
postponed for one reason to another. On May 29, 1980, the
testator passed away before his petition could finally be heard
by the probate court.3 On February 25, 1981, Benoni Cabrera,
on of the legatees named in the will, sough his appointment as
special administrator of the testator's estate, the estimated
value of which was P24,000.00, and he was so appointed by
the probate court in its order of March 6, 1981.4
Thereafter, herein petitioners, claiming to be nephews and
nieces of the testator, instituted a second petition, entitled "In
the Matter of the Intestate Estate of Mateo Caballero" and
docketed as Special Proceeding No. 3965-R, before Branch IX
of the aforesaid Court of First Instance of Cebu. On October
18, 1982, herein petitioners had their said petition intestate
proceeding consolidated with Special Proceeding No. 3899-R
in Branch II of the Court of First Instance of Cebu and opposed
thereat the probate of the Testator's will and the appointment
of a special administrator for his estate.5
Benoni Cabrera died on February 8, 1982 hence the probate
court, now known as Branch XV of the Regional Trial Court of
Cebu, appointed William Cabrera as special administrator on
June 21, 1983. Thereafter, on July 20, 1983, it issued an order
for the return of the records of Special Proceeding No. 3965-R
to the archives since the testate proceeding for the probate of
the will had to be heard and resolved first. On March 26, 1984
the case was reraffled and eventually assigned to Branch XII
of the Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings.6
In the course of the hearing in Special Proceeding No. 3899-R,
herein petitioners appeared as oppositors and objected to the
41
allowance of the testator's will on the ground that on the
alleged date of its execution, the testator was already in the
poor state of health such that he could not have possibly
executed the same. Petitioners likewise reiterated the issue as
to the genuineness of the signature of the testator therein.7
On the other hand, one of the attesting witnesses, Cipriano
Labuca, and the notary public Atty. Filoteo Manigos, testified
that the testator executed the will in question in their presence
while he was of sound and disposing mind and that, contrary
to the assertions of the oppositors, Mateo Caballero was in
good health and was not unduly influenced in any way in the
execution of his will. Labuca also testified that he and the other
witnesses attested and signed the will in the presence of the
testator and of each other. The other two attesting witnesses
were not presented in the probate hearing as the had died by
then.8
On April 5, 1988, the probate court rendered a decision
declaring the will in question as the last will and testament of
the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the
oppositors cannot overcome the positive testimonies of Atty.
Filoteo Manigos and Cipriano Labuca who clearly told the
Court that indeed Mateo Caballero executed the Last Will and
Testament now marked Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated
the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit "D" clearly
underscores the fact that this was indeed his Last Will. At the
start, counsel for the oppositors manifested that he would want
the signature of Mateo Caballero in Exhibit "C" examined by a
handwriting expert of the NBI but it would seem that despite
their avowal and intention for the examination of this signature
of Mateo Caballero in Exhibit "C", nothing came out of it
because they abandoned the idea and instead presented
Aurea Caballero and Helen Caballero Campo as witnesses for
the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last
Will and Testament of Mateo Caballero and that it was
executed in accordance with all the requisites of the law.9
Undaunted by the said judgment of the probate court,
petitioners elevated the case in the Court of Appeals in
CA-G.R. CV No. 19669. They asserted therein that the will in
question is null and void for the reason that its attestation
clause is fatally defective since it fails to specifically state that
the instrumental witnesses to the will witnessed the testator
signing the will in their presence and that they also signed the
will and all the pages thereof in the presence of the testator
and of one another.
On October 15, 1991, respondent court promulgated its
decision 10 affirming that of the trial court, and ruling that the
attestation clause in the last will of Mateo Caballero
substantially complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in
question may be considered as having substantialy complied
with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim to
be defective is "we do certify that the testament was read by
42
him and the attestator, Mateo Caballero, has published unto us
the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters
of the upper part of each page, as his Last Will and Testament,
and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin
in the presence of the said testator and in the presence of
each and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence
need be presented to indicate the meaning that the said will
was signed by the testator and by them (the witnesses) in the
presence of all of them and of one another. Or as the language
of the law would have it that the testator signed the will "in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another." If not completely
or ideally perfect in accordance with the wordings of Art. 805
but (sic) the phrase as formulated is in substantial compliance
with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of
respondent court, but the same was denied in the latter's
resolution of January 14, 1992, 12 hence this appeal now
before us. Petitioners assert that respondent court has ruled
upon said issue in a manner not in accord with the law and
settled jurisprudence on the matter and are now questioning
once more, on the same ground as that raised before
respondent court, the validity of the attestation clause in the
last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall
shortly hereafter, after some prefatory observations which we
feel should be made in aid of the rationale for our resolution of
the controversy.
1. A will has been defined as a species of conveyance
whereby a person is permitted, with the formalities prescribed
by law, to control to a certain degree the disposition of his
estate after his death. 13 Under the Civil Code, there are two
kinds of wills which a testator may execute.14 the first kind is
the ordinary or attested will, the execution of which is
governed by Articles 804 to 809 of the Code. Article 805
requires that:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation should state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence of
the testator and of one another.
43
If the attestation clause is in a language not known to the
witness, it shall be interpreted to them. In addition, the ordinary
will must be acknowledged before a notary public by a testator
and the attesting witness. 15 hence it is likewise known as
notarial will. Where the attestator is deaf or deaf-mute, Article
807 requires that he must personally read the will, if able to do
so. Otherwise, he should designate two persons who would
read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind,
the will should be read to him twice; once, by anyone of the
witnesses thereto, and then again, by the notary public before
whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810
defines as one that is entirely written, dated, and signed by the
testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement
in both kinds of will is that they should be in writing and must
have been executed in a language or dialect known to the
testator. 17
However, in the case of an ordinary or attested will, its
attestation clause need not be written in a language or dialect
known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in
the attestation clause likewise need not even be known to the
attesting witnesses. 18 The last paragraph of Article 805
merely requires that, in such a case, the attestation clause
shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will
whereby the attesting witnesses certify that the instrument has
been executed before them and to the manner of the
execution the same. 19 It is a separate memorandum or
record of the facts surrounding the conduct of execution and
once signed by the witnesses, it gives affirmation to the fact
that compliance with the essential formalities required by law
has been observed. 20 It is made for the purpose of
preserving in a permanent form a record of the facts that
attended the execution of a particular will, so that in case of
failure of the memory of the attesting witnesses, or other
casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the
complete lack of which would result in the invalidity of the will,
22 should state (1) the number of the pages used upon which
the will is written; (2) that the testator signed, or expressly
caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that the attesting
witnesses witnessed the signing by the testator of the will and
all its pages, and that said witnesses also signed the will and
every page thereof in the presence of the testator and of one
another.
The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard
against possible interpolation or omission of one or some of its
pages and to prevent any increase or decrease in the
pages;23 whereas the subscription of the signature of the
testator and the attesting witnesses is made for the purpose of
authentication and identification, and thus indicates that the
will is the very same instrument executed by the testator and
attested to by the witnesses.24
44
Further, by attesting and subscribing to the will, the witnesses
thereby declare the due execution of the will as embodied in
the attestation clause.25 The attestation clause, therefore,
provide strong legal guaranties for the due execution of a will
and to insure the authenticity thereof.26 As it appertains only
to the witnesses and not to the testator, it need be signed only
by them.27 Where it is left unsigned, it would result in the
invalidation of the will as it would be possible and easy to add
the clause on a subsequent occasion in the absence of the
testator and its witnesses.28
In its report, the Code Commission commented on the reasons
of the law for requiring the formalities to be followed in the
execution of wills, in the following manner:
The underlying and fundamental objectives permeating the
provisions on the law on wills in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last
wishes, but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with
respect to the formalities in the execution of wills. . . .29
2. An examination of the last will and testament of Mateo
Caballero shows that it is comprised of three sheets all of
which have been numbered correlatively, with the left margin
of each page thereof bearing the respective signatures of the
testator and the three attesting witnesses. The part of the will
containing the testamentary dispositions is expressed in the
Cebuano-Visayan dialect and is signed at the foot thereof by
the testator. The attestation clause in question, on the other
hand, is recited in the English language and is likewise signed
at the end thereof by the three attesting witnesses hereto.30
Since it is the proverbial bone of contention, we reproduce it
again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences
and postal addresses appear on the Opposite of our
respective names, we do hereby certify that the Testament
was read by him and the testator, MATEO CABALLERO; has
published unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each page numbered
correlatively in the letters on the upper part of each page, as
his Last Will and Testament and he has the same and every
page thereof, on the spaces provided for his signature and on
the left hand margin, in the presence of the said testator and in
the presence of each and all of us.
It will be noted that Article 805 requires that the witness should
both attest and subscribe to the will in the presence of the
testator and of one another. "Attestation" and "subscription"
differ in meaning. Attestation is the act of senses, while
subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was
published as such, and to certify the facts required to
constitute an actual and legal publication; but to subscribe a
paper published as a will is only to write on the same paper
the names of the witnesses, for the sole purpose of
identification.31
In Taboada vs. Rizal,32 we clarified that attestation consists in
witnessing the testator's execution of the will in order to see
and take note mentally that those things are done which the
45
statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the
same paper for the purpose of identification of such paper as
the will which was executed by the testator. As it involves a
mental act, there would be no means, therefore, of
ascertaining by a physical examination of the will whether the
witnesses had indeed signed in the presence of the testator
and of each other unless this is substantially expressed in the
attestation.
It is contended by petitioners that the aforequoted attestation
clause, in contravention of the express requirements of the
third paragraph of Article 805 of the Civil Code for attestation
clauses, fails to specifically state the fact that the attesting
witnesses the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will
and every page thereof in the presence of the testator and of
each other. We agree.
What is fairly apparent upon a careful reading of the
attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its pages
in the presence of the three attesting witnesses and states as
well the number of pages that were used, the same does not
expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the
presence of the testator and of each other.
The phrase "and he has signed the same and every page
thereof, on the spaces provided for his signature and on the
left hand margin," obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the
words "as his Last Will and Testament." On the other hand,
although the words "in the presence of the testator and in the
presence of each and all of us" may, at first blush, appear to
likewise signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately
follows the words "he has signed the same and every page
thereof, on the spaces provided for his signature and on the
left hand margin." What is then clearly lacking, in the final
logical analysis , is the statement that the witnesses signed the
will and every page thereof in the presence of the testator and
of one another.
It is our considered view that the absence of that statement
required by law is a fatal defect or imperfection which must
necessarily result in the disallowance of the will that is here
sought to be admitted to probate. Petitioners are correct in
pointing out that the aforestated defect in the attestation
clause obviously cannot be characterized as merely involving
the form of the will or the language used therein which would
warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil
Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is not proved that
the will was in fact executed and attested in substantial
compliance with all the requirements of article 805" (Emphasis
supplied.)
46
While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of each
page by the three attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said witness affixed
their respective signatures in the presence of the testator and
of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it
was indeed signed, but it does not prove that the attesting
witnesses did subscribe to the will in the presence of the
testator and of each other. The execution of a will is supposed
to be one act so that where the testator and the witnesses sign
on various days or occasions and in various combinations, the
will cannot be stamped with the imprimatur of effectivity.33
We believe that the further comment of former Justice J.B.L.
Reyes34 regarding Article 809, wherein he urged caution in
the application of the substantial compliance rule therein, is
correct and should be applied in the case under consideration,
as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all
the pages are consecutively numbered; whether the
signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All
theses are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can
be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the presence of
each other must substantially appear in the attestation clause,
being the only check against perjury in the probate
proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and
imperfections must only be with respect to the form of the
attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be
proved that the will was really executed and attested in
compliance with Article 805. In this regard, however, the
manner of proving the due execution and attestation has been
held to be limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the
attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the
presence of the testator and of each other.35 In such a
situation, the defect is not only in the form or language of the
attestation clause but the total absence of a specific element
required by Article 805 to be specifically stated in the
attestation clause of a will. That is precisely the defect
complained of in the present case since there is no plausible
way by which we can read into the questioned attestation
clause statement, or an implication thereof, that the attesting
witness did actually bear witness to the signing by the testator
of the will and all of its pages and that said instrumental
witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809
cannot be revoked or relied on by respondents since it
presupposes that the defects in the attestation clause can be
cured or supplied by the text of the will or a consideration of
matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may
47
necessarily be gleaned or clearly inferred that the acts not
stated in the omitted textual requirements were actually
complied within the execution of the will. In other words,
defects must be remedied by intrinsic evidence supplied by the
will itself.
In the case at bar, contrarily, proof of the acts required to have
been performed by the attesting witnesses can be supplied by
only extrinsic evidence thereof, since an overall appreciation of
the contents of the will yields no basis whatsoever from with
such facts may be plausibly deduced. What private respondent
insists on are the testimonies of his witnesses alleging that
they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby
resorting to extrinsic evidence to prove the same and would
accordingly be doing by the indirection what in law he cannot
do directly.
4. Prior to the advent of the Civil Code on August 30, 1950,
there was a divergence of views as to which manner of
interpretation should be followed in resolving issues centering
on compliance with the legal formalities required in the
execution of wills. The formal requirements were at that time
embodied primarily in Section 618 of Act No. 190, the Code of
Civil Procedure. Said section was later amended by Act No.
2645, but the provisions respecting said formalities found in
Act. No. 190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule.
This was first laid down in the case of Abangan vs.
Abangan,36 where it was held that the object of the
solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills
and testaments and to guarantee their truth and authenticity.
Therefore, the laws on this subject should be interpreted in
such a way as to attain these primordial ends. Nonetheless, it
was also emphasized that one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will, hence when an
interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded. The subsequent cases
of Avera vs. Garcia,37 Aldaba vs. Roque,38 Unson vs.
Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de
Dios, et al.,41 and Nayve vs. Mojal, et al.42 all adhered to this
position.
The other view which advocated the rule that statutes which
prescribe the formalities that should be observed in the
execution of wills are mandatory in nature and are to be strictly
construed was followed in the subsequent cases of In the
Matter of the Estate of Saguinsin,43 In re Will of Andrada,44
Uy Coque vs. Sioca,45 In re Estate of Neumark, 46 and Sano
vs. Quintana.47
Gumban vs. Gorecho, et al.,48 provided the Court with the
occasion to clarify the seemingly conflicting decisions in the
aforementioned cases. In said case of Gumban, the attestation
clause had failed to state that the witnesses signed the will
and each and every page thereof on the left margin in the
presence of the testator. The will in question was disallowed,
with these reasons therefor:
48
In support of their argument on the assignment of error
above-mentioned, appellants rely on a series of cases of this
court beginning with (I)n the Matter of the (E)state of Saguinsin
([1920], 41 Phil., 875), continuing with In re Will of Andrada
[1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43
Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841),
and ending with Sano vs. Quintana ([1925], 48 Phil., 506).
Appellee counters with the citation of a series of cases
beginning with Abangan vs. Abangan ([1919], 40 Phil., 476),
continuing through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and
culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil.,
152). In its last analysis, our task is to contrast and, if possible,
conciliate the last two decisions cited by opposing counsel,
namely, those of Sano vs. Quintana, supra, and Nayve vs.
Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses
signed the will and each and every page thereof on the left
margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra,
was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator and the
witnesses reciprocally saw the signing of the will, for such an
act cannot be proved by the mere exhibition of the will, if it is
not stated therein. It was also held that the fact that the
testator and the witnesses signed each and every page of the
will can be proved also by the mere examination of the
signatures appearing on the document itself, and the omission
to state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases;
seldom do they admit inconsistency in doctrine. Yet here,
unless aided impossible to reconcile the Mojal and Quintana
decisions. They are fundamentally at variance. If we rely on
one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place, the
Mojal, decision was concurred in by only four members of the
court, less than a majority, with two strong dissenting opinions;
the Quintana decision was concurred in by seven members of
the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was
promulgated in December, 1925; the Quintana decision was
thus subsequent in point of time. And in the third place, the
Quintana decision is believed more nearly to conform to the
applicable provisions of the law.
The right to dispose of property by will is governed entirely by
statute. The law of the case is here found in section 61 of the
Code of Civil Procedure as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It is in part
provided in section 61, as amended that "No will . . . shall be
valid . . . unless . . .." It is further provided in the same section
that "The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter
49
witnessed and signed the will and all pages thereof in the
presence of the testator and of each other." Codal section 634
provides that "The will shall be disallowed in either of the
following case: 1. If not executed and attested as in this Act
provided." The law not alone carefully makes use of the
imperative, but cautiously goes further and makes use of the
negative, to enforce legislative intention. It is not within the
province of the courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were
decisions of the Court that once more appeared to revive the
seeming diversity of views that was earlier threshed out
therein. The cases of Quinto vs. Morata,49 Rodriguez vs.
Alcala,50 Enchevarria vs. Sarmiento,51 and Testate Estate of
Toray52 went the way of the ruling as restated in Gumban. But
De Gala vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De
Ticson vs. De Gorostiza,55 Sebastian vs. Panganiban,56
Rodriguez vs. Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59
Martir vs. Martir,60 Alcala vs. De Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64
veered away from the strict interpretation rule and established
a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter
of views and of the undeniable inclination towards a liberal
construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the
modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now
Article 809 of the Civil Code, with this explanation of the Code
Commission:
The present law provides for only one form of executing a will,
and that is, in accordance with the formalities prescribed by
Section 618 of the Code of Civil Procedure as amended by Act
No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section
618 of the Code of Civil Procedure, as amended regarding the
contents of the attestation clause were mandatory, and
non-compliance therewith invalidated the will (Uy Coque vs.
Sioca, 43 Phil. 405). These decisions necessarily restrained
the freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its
attitude and has become more liberal in the interpretation of
the formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924,
May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October
18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has
practically gone back to the original provisions of Section 618
of the Code of Civil Procedure before its amendment by Act
No. 2645 in the year 1916. To turn this attitude into a
legislative declaration and to attain the main objective of the
50
proposed Code in the liberalization of the manner of executing WHEREFORE, the petition is hereby GRANTED and the
wills, article 829 of the Project is recommended, which reads: impugned decision of respondent court is hereby REVERSED
and SET ASIDE. The court a quo is accordingly directed to
"Art. 829. In the absence of bad faith, forgery, or fraud, or forthwith DISMISS its Special Proceeding No. 3899-R (Petition
undue and improper pressure and influence, defects and for the Probate of the Last Will and Testament of Mateo
imperfections in the form of attestation or in the language used Caballero) and to REVIVE Special Proceeding No. 3965-R (In
therein shall not render the will invalid if it is proved that the the matter of the Intestate Estate of Mateo Caballero) as an
will was in fact executed and attested in substantial active case and thereafter duly proceed with the settlement of
compliance with all the requirements of article 829."65 the estate of the said decedent.
SO ORDERED.
The so-called liberal rule, the Court said in Gil vs. Murciano,66
"does not offer any puzzle or difficulty, nor does it open the
door to serious consequences. The later decisions do tell us
when and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void in
any part of the document or supply missing details that should
appear in the will itself. They only permit a probe into the will,
an exploration into its confines, to ascertain its meaning or to
determine the existence or absence of the requisite formalities
of law. This clear, sharp limitation eliminates uncertainty and
ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that

omissions which can be supplied by an examination of the will
itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence
aliunde would result in the invalidation of the attestation clause
and ultimately, of the will itself.67

51
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ vs. HON. JUDGE GUILLERMO P.
VILLASOR, Presiding Judge of Branch I, Court of First
Instance of Cebu, and MANUEL B. LUGAY, respondents.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First
Instance of Cebu allowing the probate of the last will a
testament of the late Valente Z. Cruz. Petitioner-appellant
Agapita N. Cruz, the surviving spouse of the said decease
opposed the allowance of the will (Exhibit "E"), alleging the will
was executed through fraud, deceit, misrepresentation and
undue influence; that the said instrument was execute without
the testator having been fully informed of the content thereof,
particularly as to what properties he was disposing and that
the supposed last will and testament was not executed in
accordance with law. Notwithstanding her objection, the Court
allowed the probate of the said last will and testament Hence
this appeal by certiorari which was given due course.
The only question presented for determination, on which the
decision of the case hinges, is whether the supposed last will
and testament of Valente Z. Cruz (Exhibit "E") was executed in
accordance with law, particularly Articles 805 and 806 of the
new Civil Code, the first requiring at least three credible
witnesses to attest and subscribe to the will, and the second
requiring the testator and the witnesses to acknowledge the
will before a notary public.
Of the three instrumental witnesses thereto, namely
Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty.
Angel H. Teves, Jr., one of them, the last named, is at the
same time the Notary Public before whom the will was
supposed to have been acknowledged. Reduced to simpler
terms, the question was attested and subscribed by at least
three credible witnesses in the presence of the testator and of
each other, considering that the three attesting witnesses must
appear before the notary public to acknowledge the same. As
the third witness is the notary public himself, petitioner argues
that the result is that only two witnesses appeared before the
notary public to acknowledge the will. On the other hand,
private respondent-appellee, Manuel B. Lugay, who is the
supposed executor of the will, following the reasoning of the
trial court, maintains that there is substantial compliance with
the legal requirement of having at least three attesting
witnesses even if the notary public acted as one of them,
bolstering up his stand with 57 American Jurisprudence, p.
227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will
as against the purely technical reason that one of the
witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather
than as attesting the execution of the instrument.
fter weighing the merits of the conflicting claims of the parties,
We are inclined to sustain that of the appellant that the last will
and testament in question was not executed in accordance
with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow
(Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro,
100 Phil. 239, 247); to own as genuine, to assent, to admit;
and "before" means in front or preceding in space or ahead of.
52
(The New Webster Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New Standard Dictionary of
the English Language, p. 252; Webster's New International
Dictionary 2d. p. 245.) Consequently, if the third witness were
the notary public himself, he would have to avow assent, or
admit his having signed the will in front of himself. This cannot
be done because he cannot split his personality into two so
that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a
situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others,
to guard against any illegal or immoral arrangement Balinon v.
De Leon, 50 0. G. 583.) That function would defeated if the
notary public were one of the attesting instrumental witnesses.
For them he would be interested sustaining the validity of the
will as it directly involves him and the validity of his own act. It
would place him in inconsistent position and the very purpose
of acknowledgment, which is to minimize fraud (Report of
Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary
public may, in addition, act as a witness to the executive of the
document he has notarized. (Mahilum v. Court Appeals, 64 0.
G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are
others holding that his signing merely as notary in a will
nonetheless makes him a witness thereon (Ferguson v.
Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d.
641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122
So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal,
132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030).
But these authorities do not serve the purpose of the law in
this jurisdiction or are not decisive of the issue herein because
the notaries public and witnesses referred to aforecited cases
merely acted as instrumental, subscribing attesting witnesses,
and not as acknowledging witnesses. He the notary public
acted not only as attesting witness but also acknowledging
witness, a situation not envisaged by Article 805 of the Civil
Code which reads:
ART. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will or file another
with the office of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the
attesting and acknowledging witnesses, would have the effect
of having only two attesting witnesses to the will which would
be in contravention of the provisions of Article 80 be requiring
at least three credible witnesses to act as such and of Article
806 which requires that the testator and the required number
of witnesses must appear before the notary public to
acknowledge the will. The result would be, as has been said,
that only two witnesses appeared before the notary public for
or that purpose. In the circumstances, the law would not be
duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is
hereby reversed and the probate of the last will and testament
of Valente Z. Cruz (Exhibit "E") is declared not valid and
hereby set aside.
Cost against the appellee.
53
[ G.R. No. 246997, May 05, 2021 ]
GUIA, PETITIONER, VS. JOSE M. COSICO, JR
LAZARO-JAVIER, J.:
The Case
This petition for review on certiorari1 seeks to reverse the
following dispositions of the Court of Appeals in CA-G.R. CV
No. 104111, entitled In the Matter of the Petition for the
Probate of the Last Will and Testament of Cecilia Esguerra
Cosico - Thelma Esguerra Guia v. Jose M. Cosico, Jr., Manuel
M. Cosico, Minerva M. Cosico, and Eleanor M.
Cosico-Chavez:
1. Decision2 dated December 7, 2018, reversing the Decision
of the Regional Trial Court (RTC)-Br.32, San Pablo City which
admitted to probate Cecilia Esguerra Cosico's last will and
testament; and
2. Resolution3 dated May 8, 2019, denying reconsideration.
Antecedents
Cecilia Esguerra Cosico (Cecilia) was born in 1932 to Jose
Cosico, Sr. and Corazon Esguerra (Corazon). She was born
with a physical disability and was known in the locality as a
"lumpo." Corazon passed away when Cecilia was just one (1)
year old and the latter was left in the care and custody of her
maternal aunt, Mercedes Esguerra Guia (Mercedes).
Mercedes raised Cecilia in their home in Schetilig Avenue, San
Pablo City, together with Mercedes's legally adopted daughter,
petitioner Thelma Esguerra Guia (Thelma). Because of her
physical condition, Cecilia spent most of her days in her
bedroom. She never attended school nor learned to read or
write.4
In 1996, when she was sixty-four (64) years old, Cecilia
decided to execute her last will and testament. Through
Thelma's balae Liberato B. Benedictos (Liberato), Cecilia
asked Atty. Danton Q. Bueser, then a notary public (now a
retired Associate Justice of the Court of Appeals), for
assistance in preparing the last will.5 For the purpose of this
case though, we shall refer to him as Atty. Bueser.
On September 8, 1996, Atty. Bueser and Liberato went to
Cecilia's house. Atty. Bueser and Cecilia talked inside the
latter's bedroom while Liberato stayed outside by the door.
Liberato heard Cecilia call Mercedes whom she directed to
collect documents from the steel cabinet. Mercedes complied
and handed over the documents to Atty. Bueser.6
On September 10, 1996, Atty. Bueser and Liberato returned to
Cecilia's house with the finished copy of her last will and
testament denominated Huling Habilin at Pagpapasiya which
consisted of four (4) pages, viz.:
HULING HABILIN AT PAGPAPASIYA
ALAMIN NG LAHAT NA:
AKO, CECILIA COSICO ESGUERRA, may sapat na gulang,
dalaga, mamamayang Pilipino at kasalukuyang naninirahan sa
No. 16 Schetilig Avenue, Lunsod ng San Pablo, samantalang
malinaw, tumpak at wasto ang aking pag-iisip, diwa at alaala,
nasa akin naman ay walang pumilit, tumakot, nagudyok o
humikayat ay kusang-loob kong isinagawa at ngayon ay
ipinahahayag ang kasulatang ito, bilang aking HULING
54
HABILIN o TESTAMENTO at PAGPAPASIYA, sa wikang
Tagalog na katutubong wika at aking kinagisnan, at lubos na
nauunawaan:
I. Na aking ninanais na kung sakali't pumikit ang aking mga
mata na ang aking bangkay ay paglamayan at ilibing nang
naaayon sa kaugalian ng Simbahang Katoliko, Apostoliko
Romano;
II. Na ang mga ari-ariang aking maiiwan ay ang mga
sumusunod:
1) Isang lagay na lupang niyugan tumatayo sa nayon ng Sta.
Isabel, Lunsod ng San Pablo, may tanim na 234 puno ng
niyog nabunga, may sukat na 11,990 metros cuadrados, ang
kabalantay sa Ilaya, Enrique Bautista; sa Silangan, Simplicia
Capina; sa ibaba, Leoncio Cornista at sa Kanluran, Basilia
Tan. Tax Dec. No. 94-054-515, valor amillarado P21,700.
2) Isang lagay na lupang niyugan tumatayo sa nayon ng Sta.
Isabel, Lunsod ng San Pablo, may tanim na 105 puno ng
niyog nabunga, may sukat na 6,223 metros cuadrados, ang
kabalantay sa Ilaya, Epifanio Capina; sa Silangan, Vicente
Angeles; sa ibaba, Brigida Escriba at Lauro Cabrera; at sa
Kanluran Cornelio Esguerra. Tax Dec. No. 94-054-850, valor
amillarado P10,460.00.
3) Isang lagay na lupang niyugan tumatayo sa nayon ng Sta.
Isabel, Lunsod ng San Pablo, may tanim na 130 puno ng
niyog nabunga at may sukat na 13,685 metros cuadrados, ang
kabalantay sa Ilaya, Cristina Rivera; sa Silangan, Hermogenes
Collado; sa Ibaba, Gregorio Capistrano at Artemio Dichoso; at
sa Kanluran, Felipe Capina. Tax Dec. No. 94-054-851, valor
amillarado P23,000.00.
4) Isang lagay na lupang niyugan tumatayo sa nayon ng Sta.
Isabel, Lunsod ng San Pablo, may tanim na 113 puno ng niyog
nabunga, may sukat na 3,780 metros cuadrados, ang
kabalantay sa Ilaya, Cornelio Esguerra; sa Silangan, Andres
Cornista; sa Ibaba, Cornelio Esguerra at sa Kanluran, Cornelio
Esguerra at Agripino Cornista. Tax Dec. No. 94-054-849, valor
amillarado P6,360.00.
5) Isang lagay na lupang niyugan tumatayo sa nayon ng Sta.
Isabel, Lunsod ng San Pablo, may tanim na 224 puno ng
niyog na nabunga, may sukat na 12,136 metros cuadrados,
ang kabalantay sa Ilaya, Pedro Capina; sa Silangan, Cornelio
Esguerra; sa Ibaba, Antonio Capina at sa Kanluran, Melecio
Brinas. Tax Dec. No. 94-058-255, valor amillarado P20,000.00.
6) Isang lagay na lupang niyugan tumatayo sa nayon ng
Concepcion, Lunsod ng San Pablo, may tanim na 27 puno ng
niyog na nabunga, may sukat na 897 metros cuadrados, ang
kabalantay sa Ilaya, Silvestre Guia, sa Silangan, Leoncio
Capina; sa Ibaba, Crispin Bakod at Cornelio Esguerra; at sa
Kanluran, Leoncio Capina at Cornelio Esguerra. Tax Dec. No.
94-041-1552, valor amillarado P1,470
7) Ang aking ika-limang bahagi ng lupang tubigan at araruhin
na tumatayo sa nayon ng Dayap, Municipio ng Calauan,
Laguna, na may Tax Dec. 680 at 681, at sa nayon ng Santol,
Calauan, Laguna na may Tax Dec. No. 683 at 3521.
III.
55
Na kung sakali at bawian ako ng Poong Maykapal ng aking
hiram na buhay, ay nais kong ipamana, ibigay, at ipatungkol
ang aking mga ari-ariang binabanggit sa unahan nito at
bayarang lahat ang aking pagkakautang sakalit may maiiwan
akong pagkakautang, sampo ng magagastos sa aking
paglilibing ay bayarang lahat sa kuartang kinikita ng aking
kabuhayang maiiwan, nang katulad ng sumusunod:
1) Sa aking tjyahing nasi MERCEDES ESGUERRA GUIA, na
siyang nagaruga, naglingkod sapul pa sa aking pagkabata, at
nagbantay sa aking pagkakasakit.
IV. Na kung sakali at mauna akong bawian ng buhay kaysa
aking tiyahin, ay aking ipinahahayag at siyang ninanasa, na
dapat na igalang nang lahat, na ang aking tiyahing si
MERCEDES ESGUERRA GUIA ang siyang tangi
magpapatuloy na gumamit at makinabang sa aking mga
ari-ariang natatala sa unahan nito;
V. Upang ang Huling Habiling ito ay mapagtibay sa Hukuman,
at matupad ang nilalaman, ay aking hinihirang at itinatalaga si
MERCEDES ESGUERRA GUIA bilang siyang tanging
tagaganap at tagapangasiwa nitong aking Huling Habilin o
Testamento; at kung sa anupamang kapansanan ay hindi siya
makatupad, ay aking hinihirang bilang kahalili niya, ang
kanyang anak na si THELMA GUIA ESTIVA;
VI. Na aking pinagtitibay na ang tagapangasiwa at tagaganap
na aking dito'y hinirang, at ang kanyang kahalili, ay hindi na
kailangan magbigay pa ng anumang lagak o piyansa;
VII. Na aking binabawi at pinawawalang-saysay ang lahat at
anumang kasulatan, Testamento, hayag at di hayag, na akin
nang naisagawa, nilagdaan o ipinahayag nang nauna rito.
SA KATUNAYAN NG LAHAT, ako ay lumagda sa ibaba nito,
ngayon araw ng _____, buwan ng _________________ taong
1996 dito sa Lunsod ng San Pablo, Republika ng Pilipinas.
CECILIA ESGUERRA COSICO
PAGPAPATUNAY NG MGA SAKSI
KAMI, na mga nangagsilagda sa ibaba nito bilang saksi, ay
nagpapatunay na ang naunang kasulatan ay siyang pinagtibay
ni Bb. CECILIA ESGUERRA COSICO bilang kanyang Huling
Habilin o Testamento, nalalaman naman naming yaon ay
kanyang isinagawa samantalang malinaw ang kanyang isipan
at diwa, at alam niya ang kanyang ginagawa; at yaon ay
nilagdaan niya sa aming harapan sa gawing ibaba at sa
kaliwang gilid ng bawat dahon; at kami naman, sa kanyang
kahilingan, ay nangagsilagda rin sa ibaba nito at gayon din sa
kaliwang gilid ng bawat dahon sa harapan niya at ng bawat isa
sa amin, at sa harapan ng Notaryo Publiko, ngayong ika-__
araw ng buwan ng __________ taong 1996 dito sa Lunsod ng
San Pablo.
LIBERATO B. BENEDICTOS (sgd.)
naninirahan sa Villa Subd., Schetilig Ave., San Pablo City
RICARDO C. PANDINO (sgd.)
Brgy. Sta. Isabel, San Pablo City
REYNALDO M. GIGANTE (sgd.)
Brgy. Sta. Isabel, San Pablo City
REPUBLIKA NG PILIPINAS}
LALAWIGAN NG LAGUNA}
BAYAN NG SAN PABLO}
56
SA HARAPAN KO, ngayong ika-10 araw ng buwan ng
Setyembre taong 1996, dito sa Lunsod ng San Pablo, ay
dumulog si CECILIA ESGUERRA COSICO may katibayan ng
paninirahan Blg. A 6536790 gawad noong ika-13 ng Aug.
1996 dito sa Lunsod ng San Pablo. Kilala ko na siya ang
nagsagawa na naunang HULING HABILIN o TESTAMENTO,
na kanyang isinagawa at nilagdaan sa harapan ng kanyang
tatlong saksi na sina LIBERATO B. BENEDICTOS may K. P.
Blg. A 3257377 gawad sa Lunsod ng San Pablo noong Enero
12, 1996; GIGANTE M. REYNALDO may K. P. Blg. A 3257581
gawad sa Lunsod ng San Pablo noong Jan. 3, 1996;
RICARDO C. PANDINO may K. P. Blg. A 6540602 gawad sa
Lunsod ng San Pablo noong Sept. 3, 1996. Na lahat sila ay
nagsilagda ng kanilang mga pangalan sa ibaba na
pagpapatunay na ito at sa bawat dahon sa harapan ni Bb.
CECILIA ESGUERRA COSICO at ng bawat isa sa kanila at sa
harapan ko at pinatunayan nila na yaon ay kanilang nilagdaan
at isinagawa nang malaya at kusa sa kanilang kalooban.
Ang HULING HABILIN ito ay binubuo ng apat (4) na dahon,
kasama ang dahong kinaroroonan ng pagpapatunay at
pagpapatotoong ito. SAKSI ang aking lagda at panatak
pangnotaryo.
DANTON Q. BUESER (sgd.)
NOATARAY PUBLIC
UNTIL DEC. 1996
PTR No. 4206201
San Pablo City
Doc. No. 177
Page No. 37
Book No. 33
Series of 1996
Reynaldo M. Gigante (Reynaldo) and Ricardo C. Pandino
(Ricardo) were also present at Cecilia's house that night upon
her request. Reynaldo was the son of Cecilia's helper, while
Ricardo was a neighbor who regularly went to the house to
buy coconuts from Mercedes.7
In the presence of Liberato, Reynaldo, and Ricardo who
served as notarial witnesses to Cecilia's Huling Habilin at
Pagpapasiya, Atty. Bueser read the contents of the document
to Cecilia and carefully explained to her its effects and
consequences. He then asked her if she fully understood its
contents and whether it was done according to her wishes.
Cecilia confirmed.8
After Atty. Bueser read and explained the contents of the
Huling Habilin at Pagpapasiya, Cecilia affixed her thumbmark
to the will on top of her printed name and on the lower left
portion of the first and second pages of the document - all in
the presence of Atty. Bueser and her notarial witnesses.
Subsequently, in the presence of Liberato, Reynaldo, and
Ricardo, both Cecilia and Atty. Bueser signed on the left
margin of the first two pages of the Huling Habilin at
Pagpapasiya and at the end of the attestation clause.9
After all the preparations, Atty. Bueser handed over the signed
copy of the Huling Habilin at Pagpapasiya to Cecilia.10
On March 22, 2006, Cecilia died at the age of seventy-four
(74). Following her death, Mercedes obtained a copy of the
57
Huling Habilin at Pagpapasiya, had it photocopied and gave
her spouse Gomerciendo Guia and Thelma a copy each. 11
On May 9, 2009, Mercedes died.12
On July 6, 2010, Thelma filed a Petition for probate of Cecilia's
will and for her appointment as administrator of the latter's
estate before the Regional Trial Court (RTC)-Br. 32, San Pablo
City.13
On September 23, 2010, Cecilia's half siblings from the same
father, respondents Jose. M. Cosico, Jr., Manuel M. Cosico,
Minerva M. Cosico, and Eleanor M. Cosico-Chavez
(respondents) opposed the petition.14 They essentially alleged
that the formalities for the execution of a valid will under
Articles 805 to 809 of the Civil Code were not complied with.
More, Cecilia was not mentally capacitated at the time she
purportedly executed her will; if at all, she signed it under
duress and improper pressure from the beneficiary; the
alleged thumbprint of Cecilia was procured through fraud; and
Cecilia did not intend the document denominated Huling
Habilin at Pagpapasiya to be her last will and testament.15
On October 28, 2010, Batubalani Realty and Development
Corporation (Batubalani) moved for leave to intervene,
claiming it had interest in Cecilia's properties. During their
lifetime, Cecilia and Mercedes supposedly entered into a Joint
Venture Agreement (JVA) with it on August 5, 1998. Under this
Agreement, Batubalani developed a subdivision project
covering 35,000 square meters of land owned by Cecilia and
Mercedes. Batubalani then sold the developed lots. The
proceeds were shared by the company, Cecilia, and
Mercedes. In connection with the Agreement, Cecilia and
Mercedes registered the parcels of land in their names under
one title, Original Certificate of Title No. 0-861.16
Through Order dated November 26, 2010, the trial court
granted the motion to intervene. It also noted the stipulations
entered into by the parties at the pre-trial, thus:17 a.) Cecilia
died on March 22, 2006; b.) She died without compulsory
heirs; and c.) Mercedes had already passed away.18
Meantime, by Order dated August 8, 2011, the trial court
appointed Atty. Gerardo Iligan (Atty. Iligan) as Special
Administrator of Cecilia's estate. Pursuant to his powers and
duties as special administrator, Atty. Iligan secured and
received copies of all deeds of conditional sale and expenses
incurred relating to Cecilia's properties under the JVA. He also
rendered accounting of those lots yet unsold. As it turned out,
the 35,000-square meter parcel of land subject of the JVA was
subdivided into 200 smaller lots covered by several transfer
certificates in the names of Cecilia and Mercedes. Of the 200
smaller lots, 167 were put up for sale, 60 of which had already
been sold, while the rest were roads and open spaces.
Consequently, Atty. Iligan prepared a Segregation Agreement
with Thelma where they agreed to assign 53 parcels of land to
Mercedes and the 54 unsold lots to Cecilia. Thereafter, they
jointly moved for its approval.19
The Regional Trial Court's Decision
By Decision dated June 30, 2014,20 the trial court granted the
Special Administrator's Motion for Segregation and admitted
Cecilia's Huling Habilin at Pagpapasiya to probate, viz.:
58
As it is, the Segregation Agreement was executed between
the Special Administrator and the petitioner who is the named
substitute executor and heir to the estate of Cecilia pursuant to
the (sic) Cecilia's Huling Habilin at Pagpapasiya. The petitioner
is also the only heir of Mercedes who is part owner of the lot
covered by Original Certificate of Title No. 0-861, which was
subdivided into several lots sold to third parties pursuant to the
Joint Venture Agreement entered into between the intervenor
Batubalani Realty Development Corporation, on the one hand,
and Cecilia and Mercedes, on the other. In short, then,
petitioner Thelma Esguerra Guia Esteva is bound to be the
only owner, not only of the share of Mercedes in the lot
covered by OCT No. 0-861, but also of the share of Cecilia in
the same lot, including all other properties of Cecilia
mentioned in the latter's Huling Habilin at Pagpapasiya.
This Court thus grants the Special Administrator's Motion for
Segregation. The Segregation Agreement is hereby approved.
After all, with the probate of Cecilia's Huling Habilin at
Pagpapasiya, the petitioner shall remain the sole executor and
heir to the estate of Cecilia pursuant to the Huling Habilin at
Pagpapasiya, as well as the sole heir to Mercedes. (Emphasis
supplied)
xxxx
WHEREFORE, premises considered, the last will and
testament of Cecilia Esguerra Cosico, contained in her Huling
Habilin at Pagpapasiya executed on September 10, 1996 is
hereby ADMITTED to probate.
Letters testamentary and/or administration are hereby issued
in favor of Thelma Esguerra Guia Estiva without posing any
bond. In accordance with the Huling Habilin at Pagpapasiya of
Cecilia Esguerra Cosico, Thelma Esguerra Guia Estiva shall
be the executor of, and the sole heir, to the estate of Cecilia
Esguerra Cosico.
Within three (3) months after her appointment as executor or
administrator, Thelma Esguerra Guia Estiva is directed to
submit a true inventory and appraisal of all the real and
personal estate of Cecilia Esguerra Cosico. She may secure
the services of a tax appraiser in the appraisement of the
estate.
Thelma Esguerra Guia Estiva is also directed to pay Atty.
Gerardo B. Ilagan his compensation as Special Administrator,
and all proper expenses of administration incurred by him,
chargeable against the estate, pursuant to Section 7, Rule 85
of the Rules of Court.
Let a notice be issued to any and all persons who have money
claims against Cecilia Esguerra Cosico and her estate to file
their claim before the Office of the Clerk of Court of this Court.
This notice shall be published for three (3) consecutive weeks
successively in a newspaper of general publication in the
Province of Laguna and in San Pablo City, and shall be posted
for the same period in four public places in the province and in
two public places in the City of San Pablo where Cecilia
Esguerra Cosico last resided. Such money claims against the
estate of Cecilia Esguerra Cosico shall be filed with the Office
of the Clerk of Court within a period of not more than twelve
(12) months nor less than six (6) months after the date of the
first publication of the notice.
SO ORDERED.21
59
The trial court essentially ruled that Cecilia freely and
voluntarily executed the will, during which time, she was of
sound mind.22 The Huling Habilin at Pagpapasiya was
executed in accordance with the formal and essential
requisites of law.23 The court had the power to act on the
Special Administrator's Motion to Approve the Segregation
Agreement. It further noted that while respondents were blood
relatives of Cecilia, it was not unnatural for her to have
bequeathed all her properties to Mercedes since it was
Mercedes who took care of her throughout her lifetime and
provided her comfort up to her last breath.24
While she was considered a lumpo, Cecilia knew fully well the
nature of her properties to be disposed of, the proper subjects
of her bounty, and the character of her testamentary act. To be
sure, her Huling Habilin at Pagpapasiya was not prepared all
in one day, but was actually a product of a prior conference
and discussion with Atty. Bueser two (2) nights before the
signing and final execution thereof; the respective testimonies
of Reynaldo and Liberato corroborated each other on Cecilia's
sound mental condition; and at any rate, respondents failed to
rebut the presumption that every person is of sound mind, as
they had in fact waived their right to adduce evidence to
support their opposition; finally, nowhere was it shown that
Mercedes or Thelma pressured or duly influenced Cecilia into
executing her Huling Habilin at Pagpapasiya.2
The Huling Habilin at Pagpapasiya complied with the formal
and essential requirements of the Civil Code: (1) Cecilia was
of sound mind when she had it prepared and executed; (2) it
was written in Filipino, a language known to Cecilia; (3) Cecilia
subscribed to it by affixing her thumbmark thereto; (4) it was
attested and subscribed by three (3) credible witnesses in the
presence of Cecilia and of one another.26
The trial court did not give merit to respondents' argument that
the Huling Habilin at Pagpapasiya was supposedly fatally
defective for not having been read twice: once, by one of the
subscribing witnesses; and again by the notary public before
whom it was acknowledged in view of Cecilia's illiteracy. It
considered the following reasons to have rendered the
requirement superfluous: (1) Cecilia herself discussed and
dictated the terms by which she wanted to dispose of her
properties with Atty. Bueser two (2) days before subscribing to
the Huling Habilin at Pagpapasiya; (2) on the day she affixed
her thumbmark to the Huling Habilin at Pagpapasiya, its
contents were read and carefully explained to Cecilia by Atty.
Bueser; and (3) when Atty. Bueser asked Cecilia if she
understood the contents of her Huling Habilin at Pagpapasiya,
she readily affixed her thumbmark thereto, signifying that its
terms and contents were consistent with her wishes.27
Finally, the court explained that its approval of the Segregation
Agreement was inevitable following the admission to probate
of the Huling Habilin at Pagpapasiya wherein Thelma stood to
inherit all the properties of Mercedes, including those which
Cecilia herself previously acquired as sole heir of Mercedes.28
On appeal, respondents faulted the trial court for admitting in
probate Cecilia's will. They insisted that Cecilia's Huling
Habilin at Pagpapasiya did not comply with all the legal
requirements under Articles 80629 and 80830 of the Civil
Code. For one, Liberato and Reynaldo failed to declare or
avow that their act of signing Cecilia's Huling Habilin at
Pagpapasiya was voluntary. For another, the Huling Habilin at
60
Pagpapasiya was read to Cecilia only once by Atty. Bueser
and lacked the second reading requirement by one of her
notarial witnesses. Finally, the Special Administrator had no
authority to enter into such a Segregation Agreement with
Thelma.31
The Court of Appeals' Decision
By Decision32 dated December 7, 2018, the Court of Appeals
reversed. It ruled that Cecilia's Huling Habilin at Pagpapasiya
was void since it violated Article 808 of the Civil Code, thus:
WHEREFORE, in light of the foregoing, the instant appeal is
GRANTED. The assailed Decision of the Regional Trial Court
of San Pablo City, Branch 32, in Special Proceeding No.
SP-1827(10) is REVERSED and SET ASIDE. Judgment is
rendered DISMISSING the petition for probate filed by the
petitioner-appellee Thelma Esguerra Guia; and, DENYING the
Motion to Approve Segregation Agreement.
SO ORDERED.
On one hand, it noted that the Huling Habilin at Pagpapasiya
had substantially complied with Article 806. While respondents
insisted that the notarial witnesses failed to make a declaration
before the notary public that their acts of affixing their
respective signatures were voluntary, this was easily refuted
by the acknowledgment portion of the will, viz.:
SA HARAPAN KO x x x ay dumulog si CECILIA ESGUERRA
COSICO x x x Kilala ko na siya ang nagsagawa na naunang
RULING HABILIN o TESTAMENTO, na kanyang isinagawa at
nilagdaan sa harapan ng kanyang tatlong saksi na sina
LIBERATO B. BENEDICTOS x x x; GIGANTE M. REYNALDO
xxx; RICARDO C. PANDINO x x x. Na lahat sila ay nagsilagda
ng kanilang mga pangalan sa ibaba na pagpapatunay na ito at
sa bawat dahon sa harapan ni Bb. CECILIA ESGUERRA
COSICO at ng bawat isa sa kanila at sa harapan ko at
pinatunayan nila na yaon ay kanilang nilagdaan at isinagawa
nang malaya at kusa sa kanilang kalooban. (Emphasis
supplied)
At any rate, there was no evidence showing that the notarial
witnesses were forced or coerced into signing the Huling
Habilin at Pagpapasiya.33
The Court of Appeals nevertheless ruled that as for Article
808, the same was not observed during the execution of the
Huling Habilin at Pagpapasiya. While it is strictly a requirement
for blind testators, jurisprudence has, by analogy, applied the
requirement of reading the will twice: once, by one of the
instrumental witnesses and, again, by the notary public before
whom the will was acknowledged to those who, for one reason
or another, are "incapable of reading their wills."34
It emphasized the rationale behind Article 808 - to make the
provisions in the will known to the testator and to allow him or
her to object if they are not in accordance to his or her wishes.
Having been read twice by different disinterested persons
would ensure that the contents of the will are properly
communicated and understood by the testator.35
Here, it was undisputed that Cecilia never learned how to read
and write, hence she was an illiterate; and it was only the
notary public, Atty. Bueser, who read the will to the testator
61
Cecilia. Thus, the will should not have been admitted to
probate for violation of Article 808.36
It became wholly immaterial that Cecilia had full possession of
her reasoning faculties; and clear knowledge of the nature of
her estate, the proper objects of her bounty, and the character
of her testamentary act. For the breach of Article 808 had
actually exposed Cecilia's will to the possibility of fraud. In
other words, even if Cecilia had fulfilled the aforesaid
requirements, there is no guarantee that the will which was
"read" to her was the same document which she and the
notarial witnesses signed.37
Finally, the Court of Appeals ruled that Thelma could not
invoke In re: Alvarado v. Gaviola, Jr.38 for the purpose of
claiming substantial compliance with Article 808. In Alvarado,
the Court held that there was substantial compliance with
Article 808 because the notary public and the notarial
witnesses had their own copy of the will and read the same
silently while the lawyer read it out loud. In contrast, none of
the notarial witnesses here were given copy of the Huling
Habilin at Pagpapasiya. As such, they could not have
confirmed the contents of the document read and explained by
Atty. Bueser to Cecilia.39
With the disallowance of the Huling Habilin at Pagpapasiya to
probate, the Segregation Agreement becomes devoid of basis.
As such, Cecilia's properties should be passed on to her heirs
by intestate succession under Article 96040 in relation to
Articles 100341 and 100742 of the Civil Code.
The Court of Appeals denied reconsideration on May 8,
2019.43
Present Petition
Thelma now asks the Court to exercise its discretionary
appellate jurisdiction to review and reverse the assailed
issuances of the Court of Appeals.44
She faults the Court of Appeals for ruling that Article 808 was
not substantially complied with insofar as the Huling Habilin at
Pagpapasiya is concerned and that Alvarado was inapplicable
here; for disallowing probate of the will; and for denying the
motion to approve the Segregation Agreement. Thelma
asserts that there was more than substantial compliance with
Article 808, as correctly ruled by the trial court in its Decision
dated June 30, 2014.45 There is substantial compliance so
long as the spirit of the law was served, even though the letter
of the law was not. Formal imperfections may be overlooked
when they do not affect the rationale behind the
requirement.46
She argues anew that although Cecilia was a lumpo and did
not have any formal education, she had full possession of her
faculties when she executed her last will. She too had clear
knowledge of the nature of her estate to be disposed of, the
proper objects of her bounty, and the character of her
testamentary act. She requested Liberato to look for a lawyer
to help her prepare her last will and testament two (2) days
before its execution. Liberato spoke to Atty. Bueser who
agreed to assist Cecilia prepare and execute her last will and
testament. Atty. Bueser and Cecilia conferred and discussed
62
the latter's wishes, which the former reduced in writing,
observing the formalities of a will.
Finally, on September 10, 1996, in the presence of the notarial
witnesses, Atty. Bueser read and explained the Huling Habilin
at Pagpapasiya to Cecilia, who then, affixed her thumbmark
thereto. The notarial witnesses likewise each affixed their
respective signatures to the document.47
It was not only the Huling Habilin at Pagpapasiya that
established Cecilia's wishes, but the testimonies of the notarial
witnesses as well. They proved that Cecilia had desired for her
properties to be bequeathed to her aunt Mercedes who took
care of her throughout her lifetime and even provided comfort
up to her last breath.48
In sum, the denial of the Huling Habilin at Pagpapasiya simply
because none of the notarial witnesses read the contents
thereof out loud nor silently read their own copies like in
Alvarado - would frustrate Cecilia's wishes and intentions.49
Consequently, the Huling Habilin at Pagpapasiya should be
admitted to probate and the Segregation Agreement,
approved.50
In their Comment,51 respondents maintain that the Court of
Appeals correctly ruled that Article 808 was not complied with.
For one, both Liberato and Reynaldo admitted that they did not
read the Huling Habilin at Pagpapasiya, but merely relied on
the explanation of Atty. Bueser - who himself did not testify.52
For another, Alvarado is not on all fours with the present case,
hence, the doctrine of substantial compliance is inapplicable
here.53
Threshold Issues
Was the Huling Habilin at Pagpapasiya executed in
compliance with Article 808 of the Civil Code?
Should the Segregation Agreement be approved?
Ruling
We grant the petition.
Article 808 of the Civil Code requires that the contents of a last
will and testament be read to the testator twice, once by one of
the subscribing witnesses, and again, by the notary, viz.:
Article 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again,
by the notary public before whom the will is acknowledged. (n)
While the law imposes the requirement only when the testator
is blind, the Court has expanded its coverage to those who are
illiterate. Alvarado elucidates:54
The following pronouncement in Garcia vs. Vasquez55
provides an insight into the scope of the term "blindness" as
used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as
when he is illiterate), 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 . . .
63
Clear from the foregoing is that Art. 808 applies not only to
blind testators but also to those who, for one reason or
another, are "incapable of reading the(ir) will(s)." xxx
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.
Here, Cecilia was not blind but a lumpo. The Court of Appeals
nevertheless applied Article 808 of the Civil Code considering
that Cecilia received no formal education and is incapable of
reading or writing, hence, illiterate. Pursuant to Alvarado,
therefore, one of the subscribing witnesses should have read
Cecilia the Huling Habilin at Pagpapasiya aside from Atty.
Bueser.
We disagree.
Though Alvarado seemingly extended the application of Article
808 to cover not just the blind but also illiterates, the same
case also recognized an exception to the rule - substantial
compliance. We find this exception applicable here.
In Alvarado, the testator was a 79-year old man who executed
a notarial will, a subsequent holographic will, and later on, a
codicil where he modified certain dispositions in the notarial
will. As it was however, he was suffering from glaucoma, an
eye condition which limited his functional vision "counting
fingers at three (3) feet," preventing him from actually seeing
for himself the contents of his own will. The Court thus ruled
that such condition fell under the scope of Article 808,
requiring the will to be read twice to the testator: once by the
notary public, and another, by one of the notarial witnesses.
Though this two-pronged requirement was not fulfilled, the
Court nevertheless allowed the will probate on ground of
substantial compliance, thus:
This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has
been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the
testator from all kinds of fraud and trickery but are never
intended to be so rigid and inflexible as to destroy the
testamentary privilege.
In the case at bar, private respondent read the testator's will
and codicil aloud in the presence of the testator, his three
instrumental witnesses, and the notary public. Prior and
subsequent thereto, the testator affirmed, upon being asked,
that the contents read corresponded with his instructions. Only
then did the signing and acknowledgement take place. There
is no evidence, and petitioner does not so allege, that the
contents of the will and codicil were not sufficiently made
known and communicated to the testator.
On the contrary, with respect to the "Huling Habilin," the day of
the execution was not the first time that Brigido had affirmed
the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado
already acknowledged that the will was drafted in accordance
64
with his expressed wishes even prior to 5 November 1977
when Atty. Rino went to the testator's residence precisely for
the purpose of securing his conformity to the draft.
Moreover, it was not only Atty. Rino who read the documents
on 5 November and 29 December 1977. The notary public and
the three instrumental witnesses likewise read the will and
codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the
notary public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator's physician) asked the
testator whether the contents of the document were of his own
free will. Brigido answered in the affirmative. With four persons
following the reading word for word with their own copies, it
can be safely concluded that the testator was reasonably
assured that what was read to him (those which he affirmed
were in accordance with his instructions), were the terms
actually appearing on the typewritten documents. This is
especially true when we consider the fact that the three
instrumental witnesses were persons known to the testator,
one being his physician (Dr. Evidente) and another
(Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of
the will, the formal imperfections should be brushed aside
when they do not affect its purpose and which, when taken into
account, may only defeat the testator's will.
As a final word to convince petitioner of the propriety of the
trial court's Probate Order and its affirmance by the Court of
Appeals, we quote the following pronouncement in Abangan v.
Abangan,56 to wit:
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid the
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
whatsoever that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's
will, must be disregarded.
Brigido Alvarado had expressed his last wishes in clear and
unmistakable terms in his "Huling Habilin" and the codicil
attached thereto. We are unwilling to cast these aside for the
mere reason that a legal requirement intended for his
protection was not followed strictly when such compliance had
been rendered unnecessary by the fact that the purpose of the
law, i.e., to make known to the incapacitated testator the
contents of the draft of his will, had already been
accomplished. To reiterate, substantial compliance suffices
where the purpose has been served. (Emphases and
underscoring supplied; Citations omitted)
Indeed, the purpose of a will is to grant the wishes of a person
upon his/her death, especially with respect to the disposition of
his/her worldly possessions.57 Both law and jurisprudence are
consistent in allowing a degree of flexibility with the
65
requirements in the execution of wills, especially as to the
formal aspect.58
Here, we find that upholding respondents' position and the
Court of Appeals' ruling would only frustrate Cecilia's will. A
review of the document itself, the testimonies of the witnesses,
and the record shows that like in Abangan, as cited in
Alvarado, the intention of the testator had been established
and protected from fraud or trickery.
Notably, Atty. Bueser read and explained the contents of the
Huling Habilin at Pagpapasiya to Cecilia. Meanwhile, Liberato
and Reynaldo listened and understood the explanation of Atty.
Bueser. It is also undisputed that Cecilia made no denial or
correction to what she had heard. As such, we are convinced
that the underlying protection of Article 808 had been fulfilled
here.
At any rate, the Court refuses to entertain such a possibility of
fraud because Atty. Bueser, aside from having observed all
other formalities, handed copies of the Huling Habilin at
Pagpapasiya to the notarial witnesses for their signatures. This
gave them the opportunity to read a short four (4)-page
document which they all flipped through from pages one (1)
through four (4) to affix their respective signatures, essentially
negating any possibility of fraud, trickery, or misrepresentation.
More, the notarial witnesses heard Atty. Bueser read and
explain to Cecilia her Huling Habilin at Pagpapasiya which
gave both Cecilia and themselves the opportunity to object to
any provision in the will that may not have been according to
her wishes. As it was, no objections were made. To be sure,
Reynaldo knew and understood Cecilia's testamentary act and
disposition of her properties. He testified:
Q Mr. Witnesss, you said Atty. Danton Bueser explained the
Huling Habilin at Pagpapsiya to Cecilia Esguerra Cosico and
you were present, if you can recall what is the most important
content which was explained to her by Atty. Danton Bueser to
the testator Cecilia Esguerra Cosico?
A Atty. Bueser explained that the properties owned by Cecilia
Esguerra Cosico, if she will be leaving shall be given to the
one taking care of her, sir.
Q Who is that person who is taking care of Cecilia Esguerra
Cosico?
A Mercedes Guia, sir.
Q What was the answer of Cecilia Esguerra Cosico after it was
explained that all the properties shall be bequeathed or given
to... based on the documents shall be given to Mercedes
Guia?
A She agreed, sir. (Emphases and underscoring supplied)59
Verily, Cecilia's Huling Habilin at Pagpapasiya and Reynaldo's
testimony are consistent on the most material point in the will
that her properties shall be inherited by her aunt, Mercedes.
In sum, Article 808 is meant to protect the testator from all
kinds of fraud and trickery but is never intended to be so rigid
and inflexible as to destroy testamentary privilege. Here, the
danger that Article 808 is designed to prevent is undoubtedly
nonexistent. As such, the trial court correctly ruled that the
Huling Habilin at Pagpapasiya had substantially complied with
its spirit for the purpose of admitting it to probate.
66
As for the Segregation Agreement, we agree with the Court of
Appeals that its approval has no basis, albeit on a different
ground. For the trial court, acting as a probate court has
limited jurisdiction, relating only to matters involving the
probate of the will, i.e. the proceedings in determining the
validity of a will. Aranas v. Mercado60 is instructive:
The probate court is authorized to determine the issue of
ownership of properties for purposes of their inclusion or
exclusion from the inventory to be submitted by the
administrator, but its determination shall only be provisional
unless the interested parties are all heirs of the decedent, or
the question is one of collation or advancement, or the parties
consent to the assumption of jurisdiction by the probate court
and the rights of third parties are not impaired. Its jurisdiction
extends to matters incidental or collateral to the settlement and
distribution of the estate, such as the determination of the
status of each heir and whether property included in the
inventory is the conjugal or exclusive property of the deceased
spouse.
xxxx
The general rule is that the jurisdiction of the trial court, either
as a probate court or an intestate court, relates only to matters
having to do with the probate of the will and/or settlement of
the estate of deceased persons, but does not extend to the
determination of questions of ownership that arise during the
proceedings. The patent rationale for this rule is that such
court merely exercises special and limited jurisdiction. As held
in several cases, a probate court or one in charge of estate
proceedings, whether testate or intestate, cannot adjudicate or
determine title to properties claimed to be a part of the estate
and which are claimed to belong to outside parties, not by
virtue of any right of inheritance from the deceased but by title
adverse to that of the deceased and his estate.
All that the said court could do as regards said properties is to
determine whether or not they should be included in the
inventory of properties to be administered by the administrator.
If there is no dispute, there poses no problem, but if there is,
then the parties, the administrator, and the opposing parties
have to resort to an ordinary action before a court exercising
general jurisdiction for a final determination of the conflicting
claims of title.
To stress, the petition filed below is for probate. The question
is limited to determining the validity of a will for its allowance -
not the distribution of the estate yet. Thus, we cannot concur in
the trial court's reasoning that the issue on the approval of the
Segregation Agreement was mooted by Thelma's eventual
inheritance of Cecilia's entire estate. For the properties under
Cecilia's ownership would still be subject to accounting,
collation, and even payment of loans or setting off liabilities.
So must it be.
ACCORDINGLY, the petition is GRANTED. The Decision61
dated December 7, 2018 and Resolution62 dated May 8, 2019
are REVERSED and SET ASIDE. The Decision63 dated June
30, 2014 of the Regional Trial Court Branch 32, San Pablo
City, Laguna is REINSTATED with MODIFICATION.
The last will and testament of Cecilia Esguerra Cosico,
contained in her Huling Habilin at Pagpapasiya executed on
September 10, 1996 is ADMITTED to probate.
67
Let letters testamentary and/or administration be ISSUED in
favor of Thelma Esguerra Guia without posting any bond. In
accordance with the Huling Habilin at Pagpapasiya of Cecilia
Esguerra Cosico, Thelma Esguerra Guia shall be the executor
of, and the sole heir, to the estate of Cecilia Esguerra Cosico.
Within three (3) months after her appointment as executor or
administrator, Thelma Esguerra Guia is DIRECTED to
SUBMIT a true inventory and appraisal of all the real and
personal estate of Cecilia Esguerra Cosico. She may secure
the services of a tax appraiser for this purpose.

Thelma Esguerra Guia is also DIRECTED to PAY Atty.

Gerardo B. Iligan his compensation as Special Administrator,
and all proper expenses of administration incurred by him,
chargeable against the estate, pursuant to Section 7, Rule 85
of the Rules of Court.

The Motion to Approve Segregation Agreement is DENIED.

SO ORDERED

68
G.R. No. 122880 April 12, 2006
FELIX AZUELA vs. COURT OF APPEALS, GERALDA AIDA
CASTILLO substituted by ERNESTO G. CASTILLO,
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will,
purportedly executed by Eugenia E. Igsolo (decedent), who
died on 16 December 1982 at the age of 80. In refusing to give
legal recognition to the due execution of this document, the
Court is provided the opportunity to assert a few important
doctrinal rules in the execution of notarial wills, all self-evident
in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of
pages on which the will is written is fatally defective. A will
whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly, a
will which does not contain an acknowledgment, but a mere
jurat, is fatally defective. Any one of these defects is sufficient
to deny probate. A notarial will with all three defects is just
aching for judicial rejection.
There is a distinct and consequential reason the Civil Code
provides a comprehensive catalog of imperatives for the
proper execution of a notarial will. Full and faithful compliance
with all the detailed requisites under Article 805 of the Code
leave little room for doubt as to the validity in the due
execution of the notarial will. Article 806 likewise imposes
another safeguard to the validity of notarial wills — that they
be acknowledged before a notary public by the testator and
the witnesses. A notarial will executed with indifference to
these two codal provisions opens itself to nagging questions
as to its legitimacy.
The case stems from a petition for probate filed on 10 April
1984 with the Regional Trial Court (RTC) of Manila. The
petition filed by petitioner Felix Azuela sought to admit to
probate the notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of the cousin
of the decedent.
The will, consisting of two (2) pages and written in the
vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa
hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na
ito na ang aking huling habilin at testamento, at binabali wala
ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte,
La Loma sang-ayong sa kaugalian at patakaran ng simbahang
katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay
magtatayo ng bantayog upang silbing ala-ala sa akin ng aking
pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng
karapatan sa aking pamangkin na si Felix Azuela, na siyang
nag-alaga sa akin sa mahabang panahon, yaong mga bahay
na nakatirik sa lote numero 28, Block 24 at nakapangalan sa
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote,
69
numero 43, Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa
bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24,
Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong
ito ay walang pasubali’t at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin na
hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika
10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling
dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim
ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawa’t dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7,
1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981
dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-8
The three named witnesses to the will affixed their signatures
on the left-hand margin of both pages of the will, but not at the
bottom of the attestation clause.
70
The probate petition adverted to only two (2) heirs, legatees
and devisees of the decedent, namely: petitioner himself, and
one Irene Lynn Igsolo, who was alleged to have resided
abroad. Petitioner prayed that the will be allowed, and that
letters testamentary be issued to the designated executor, Vart
Prague.
The petition was opposed by Geralda Aida Castillo (Geralda
Castillo), who represented herself as the attorney-in-fact of
"the 12 legitimate heirs" of the decedent.2 Geralda Castillo
claimed that the will is a forgery, and that the true purpose of
its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner,
particularly for forcible entry and usurpation of real property, all
centering on petitioner’s right to occupy the properties of the
decedent.3 It also asserted that contrary to the representations
of petitioner, the decedent was actually survived by 12
legitimate heirs, namely her grandchildren, who were then
residing abroad. Per records, it was subsequently alleged that
decedent was the widow of Bonifacio Igsolo, who died in
1965,4 and the mother of a legitimate child, Asuncion E.
Igsolo, who predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not
executed and attested to in accordance with law. She pointed
out that decedent’s signature did not appear on the second
page of the will, and the will was not properly acknowledged.
These twin arguments are among the central matters to this
petition.
After due trial, the RTC admitted the will to probate, in an
Order dated 10 August 1992.6 The RTC favorably took into
account the testimony of the three (3) witnesses to the will,
Quirino Agrava, Lamberto Leano, and Juanito Estrada. The
RTC also called to fore "the modern tendency in respect to the
formalities in the execution of a will x x x with the end in view
of giving the testator more freedom in expressing his last
wishes;"7 and from this perspective, rebutted oppositor’s
arguments that the will was not properly executed and attested
to in accordance with law.
After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and
having in mind the modern tendency in respect to the
formalities in the execution of a will, i.e., the liberalization of
the interpretation of the law on the formal requirements of a
will with the end in view of giving the testator more freedom in
expressing his last wishes, this Court is persuaded to rule that
the will in question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted
that at the end of the will after the signature of the testatrix, the
following statement is made under the sub-title, "Patunay Ng
Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayong ika-10
ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa
ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa
71
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawa’t dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause
and the acknowledgement and is considered by this Court as
a substantial compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause was
not signed by the subscribing witnesses at the bottom thereof,
this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will
containing the attestation clause and acknowledgment, instead
of at the bottom thereof, substantially satisfies the purpose of
identification and attestation of the will.
With regard to the oppositor’s argument that the will was not
numbered correlatively in letters placed on upper part of each
page and that the attestation did not state the number of
pages thereof, it is worthy to note that the will is composed of
only two pages. The first page contains the entire text of the
testamentary dispositions, and the second page contains the
last portion of the attestation clause and acknowledgement.
Such being so, the defects are not of a serious nature as to
invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second
page, which contains only the last portion of the attestation
clause and acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the
testatrix on the will is a forgery, the testimonies of the three
subscribing witnesses to the will are convincing enough to
establish the genuineness of the signature of the testatrix and
the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto
Castillo, who had substituted his since deceased
mother-in-law, Geralda Castillo. In a Decision dated 17 August
1995, the Court of Appeals reversed the trial court and ordered
the dismissal of the petition for probate.9 The Court of Appeals
noted that the attestation clause failed to state the number of
pages used in the will, thus rendering the will void and
undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the
Civil Code that "the number of pages used in a notarial will be
stated in the attestation clause" is merely directory, rather than
mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."11
The solution to this case calls for the application of Articles
805 and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
72
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file another
with the office of the Clerk of Court
The appellate court, in its Decision, considered only one
defect, the failure of the attestation clause to state the number
of pages of the will. But an examination of the will itself reveals
several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to
state the number of pages of the will.12 There was an
incomplete attempt to comply with this requisite, a space
having been allotted for the insertion of the number of pages in
the attestation clause. Yet the blank was never filled in; hence,
the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the
trial court, citing in the process Uy Coque v. Navas L. Sioca13
and In re: Will of Andrada.14 In Uy Coque, the Court noted
that among the defects of the will in question was the failure of
the attestation clause to state the number of pages contained
in the will.15 In ruling that the will could not be admitted to
probate, the Court made the following consideration which
remains highly relevant to this day:
"The purpose of requiring the number of sheets to be stated in
the attestation clause is obvious; the document might easily be
so prepared that the removal of a sheet would completely
change the testamentary dispositions of the will and in the
absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and
changing the numbers at the top of the following sheets or
pages. If, on the other hand, the total number of sheets is
stated in the attestation clause the falsification of the
document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the
margin, a matter attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the
attestation clause of which failed to state the number of sheets
or pages used. This consideration alone was sufficient for the
Court to declare "unanim[ity] upon the point that the defect
pointed out in the attesting clause is fatal."17 It was further
observed that "it cannot be denied that the x x x requirement
affords additional security against the danger that the will may
be tampered with; and as the Legislature has seen fit to
prescribe this requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court
allowed probate to the wills concerned therein despite the fact
that the attestation clause did not state the number of pages of
the will. Yet the appellate court itself considered the import of
these two cases, and made the following distinction which
73
petitioner is unable to rebut, and which we adopt with
approval:
Even a cursory examination of the Will (Exhibit "D"), will readily
show that the attestation does not state the number of pages
used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court
in "Manuel Singson versus Emilia Florentino, et al., 92 Phil.
161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al.,
118 SCRA 195," to the effect that a will may still be valid even
if the attestation does not contain the number of pages used
upon which the Will is written. However, the Decisions of the
Supreme Court are not applicable in the aforementioned
appeal at bench. This is so because, in the case of "Manuel
Singson versus Emilia Florentino, et al., supra," although the
attestation in the subject Will did not state the number of
pages used in the will, however, the same was found in the
last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires that
the attestation clause shall state the number of pages or
sheets upon which the will is written, which requirement has
been held to be mandatory as an effective safeguard against
the possibility of interpolation or omission of some of the
pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re Will of Andrada,
42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405;
Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil.
481; Echevarria vs. Sarmiento, 66 Phil. 611).
The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of
sheets or pages composing the will and that if this is missing
or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by
a consideration or examination of the will itself. But here the
situation is different. While the attestation clause does not
state the number of sheets or pages upon which the will is
written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule
of construction and places it within the realm of similar cases
where a broad and more liberal view has been adopted to
prevent the will of the testator from being defeated by purely
technical considerations." (page 165-165, supra)
(Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra,
the notarial acknowledgement in the Will states the number of
pages used in the:
"x x x
We have examined the will in question and noticed that the
attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not
for the fact that, in this case, it is discernible from the entire will
that it is really and actually composed of only two pages duly
signed by the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the
74
left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment.
The acknowledgment itself states that "this Last Will and
Testament consists of two pages including this page" (pages
200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in
the will is not stated in any part of the Will. The will does not
even contain any notarial acknowledgment wherein the
number of pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the
enactment of the Civil Code in 1950, at a time when the
statutory provision governing the formal requirement of wills
was Section 618 of the Code of Civil Procedure.22 Reliance
on these cases remains apropos, considering that the
requirement that the attestation state the number of pages of
the will is extant from Section 618.23 However, the enactment
of the Civil Code in 1950 did put in force a rule of interpretation
of the requirements of wills, at least insofar as the attestation
clause is concerned, that may vary from the philosophy that
governed these two cases. Article 809 of the Civil Code states:
"In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code
Commission, which stated that "the underlying and
fundamental objective permeating the provisions on the [law]
on [wills] in this project consists in the [liberalization] of the
manner of their execution with the end in view of giving the
testator more [freedom] in [expressing] his last wishes. This
objective is in accord with the [modern tendency] in respect to
the formalities in the execution of wills."24 However, petitioner
conveniently omits the qualification offered by the Code
Commission in the very same paragraph he cites from their
report, that such liberalization be "but with sufficient
safeguards and restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure and
influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive
discussion made by Justice Regalado, speaking for the Court
on the conflicting views on the manner of interpretation of the
legal formalities required in the execution of the attestation
clause in wills.27 Uy Coque and Andrada are cited therein,
along with several other cases, as examples of the application
of the rule of strict construction.28 However, the Code
Commission opted to recommend a more liberal construction
through the "substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes as
to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects
that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All
these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can
be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the presence of
75
each other must substantially appear in the attestation clause,
being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice
J.B.L. Reyes in its assailed decision, considering that the
failure to state the number of pages of the will in the attestation
clause is one of the defects which cannot be simply
disregarded. In Caneda itself, the Court refused to allow the
probate of a will whose attestation clause failed to state that
the witnesses subscribed their respective signatures to the will
in the presence of the testator and of each other,30 the other
omission cited by Justice J.B.L. Reyes which to his estimation
cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it
now stands, is that omission which can be supplied by an
examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed.
However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself."31 Thus, a
failure by the attestation clause to state that the testator signed
every page can be liberally construed, since that fact can be
checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one
another’s presence should be considered a fatal flaw since the
attestation is the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of
pages on which the will was written remains a fatal flaw,
despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is written
is to safeguard against possible interpolation or omission of
one or some of its pages and to prevent any increase or
decrease in the pages.33 The failure to state the number of
pages equates with the absence of an averment on the part of
the instrumental witnesses as to how many pages consisted
the will, the execution of which they had ostensibly just
witnessed and subscribed to. Following Caneda, there is
substantial compliance with this requirement if the will states
elsewhere in it how many pages it is comprised of, as was the
situation in Singson and Taboada. However, in this case, there
could have been no substantial compliance with the
requirements under Article 805 since there is no statement in
the attestation clause or anywhere in the will itself as to the
number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need
to comply with the formal requirements as enumerated under
Article 805. Whatever the inclinations of the members of the
Code Commission in incorporating Article 805, the fact
remains that they saw fit to prescribe substantially the same
formal requisites as enumerated in Section 618 of the Code of
Civil Procedure, convinced that these remained effective
safeguards against the forgery or intercalation of notarial
wills.34 Compliance with these requirements, however
picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to
convey property post mortem in the manner established in the
will.35 The transcendent legislative intent, even as expressed
in the cited comments of the Code Commission, is for the
76
fruition of the testator’s incontestable desires, and not for the
indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of
Appeals. However, an examination of the will itself reveals a
couple of even more critical defects that should necessarily
lead to its rejection.
For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of the
will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary
public.
Cagro v. Cagro36 is material on this point. As in this case, "the
signatures of the three witnesses to the will do not appear at
the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the
left-hand margin."37 While three (3) Justices38 considered the
signature requirement had been substantially complied with, a
majority of six (6), speaking through Chief Justice Paras, ruled
that the attestation clause had not been duly signed, rendering
the will fatally defective.
There is no question that the signatures of the three witnesses
to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by
the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant
is correct. The attestation clause is "a memorandum of the
facts attending the execution of the will" required by law to be
made by the attesting witnesses, and it must necessarily bear
their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of
their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the
three witnesses on the left-hand margin conform substantially
to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures
are in compliance with the legal mandate that the will be
signed on the left-hand margin of all its pages. If an attestation
clause not signed by the three witnesses at the bottom thereof,
be admitted as sufficient, it would be easy to add such clause
to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro.
Article 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will, from the
requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind these
two classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify,
among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even
if the instrumental witnesses signed the left-hand margin of the
77
page containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses’ undertakings
in the clause, since the signatures that do appear on the page
were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses
in this case signed the attestation clause itself, but not the
left-hand margin of the page containing such clause. Without
diminishing the value of the instrumental witnesses’ signatures
on each and every page, the fact must be noted that it is the
attestation clause which contains the utterances reduced into
writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article
805 to state the number of pages used upon which the will is
written; the fact that the testator had signed the will and every
page thereof; and that they witnessed and signed the will and
all the pages thereof in the presence of the testator and of one
another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the
attestation clause. Thus, the subject will cannot be considered
to have been validly attested to by the instrumental witnesses,
as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial
of this petition should also hinge. The requirement under
Article 806 that "every will must be acknowledged before a
notary public by the testator and the witnesses" has also not
been complied with. The importance of this requirement is
highlighted by the fact that it had been segregated from the
other requirements under Article 805 and entrusted into a
separate provision, Article 806. The non-observance of Article
806 in this case is equally as critical as the other cited flaws in
compliance with Article 805, and should be treated as of
equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y.
Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng
Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no
manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who
has executed a deed in going before some competent officer
or court and declaring it to be his act or deed.41 It involves an
extra step undertaken whereby the signor actually declares to
the notary that the executor of a document has attested to the
notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even
though it does not hew to the usual language thereof. A jurat is
that part of an affidavit where the notary certifies that before
him/her, the document was subscribed and sworn to by the
executor.42 Ordinarily, the language of the jurat should avow
that the document was subscribed and sworn before the
notary public, while in this case, the notary public averred that
he himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses the
signing of and swearing in of the executors of the document,
which in this case would involve the decedent and the
instrumental witnesses.
Yet even if we consider what was affixed by the notary public
as a jurat, the will would nonetheless remain invalid, as the
express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The
will does not present any textual proof, much less one under
78
oath, that the decedent and the instrumental witnesses
executed or signed the will as their own free act or deed. The
acknowledgment made in a will provides for another
all-important legal safeguard against spurious wills or those
made beyond the free consent of the testator. An
acknowledgement is not an empty meaningless act.43 The
acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they had
executed and subscribed to the will as their own free act or
deed. Such declaration is under oath and under pain of
perjury, thus allowing for the criminal prosecution of persons
who participate in the execution of spurious wills, or those
executed without the free consent of the testator. It also
provides a further degree of assurance that the testator is of
certain mindset in making the testamentary dispositions to
those persons he/she had designated in the will.
It may not have been said before, but we can assert the rule,
self-evident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and
sworn to before a notary public.
margin, her only signature appearing at the so-called "logical
end"44 of the will on its first page. Also, the will itself is not
numbered correlatively in letters on each page, but instead
numbered with Arabic numerals.
There is a line of thought that has disabused the notion that
these two requirements be construed as mandatory.45 Taken
in isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these
omissions are not decisive to the adjudication of this case,
they need not be dwelt on, though indicative as they may be of
a general lack of due regard for the requirements under Article
805 by whoever executed the will. All told, the string of mortal
defects which the will in question suffers from makes the
probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against
petitioner. SO ORDERED.

There are two other requirements under Article 805 which

were not fully satisfied by the will in question. We need not
discuss them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator
and the instrumental witnesses sign each and every page of
the will on the left margin, except the last; and that all the
pages shall be numbered correlatively in letters placed on the
upper part of each page. In this case, the decedent, unlike the
witnesses, failed to sign both pages of the will on the left

79
G.R. Nos. 75005-06 February 15, 1990
JOSE RIVERA vs. INTERMEDIATE APPELLATE COURT and
ADELAIDO J. RIVERA
CRUZ, J.:
Was there only one Venancio Rivera in Mabalacat, Pampanga,
or were there two?
On May 30, 1975, a prominent and wealthy resident of that
town named Venancio Rivera died. On July 28, 1975, 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. Docketed as SP No.
1076, this 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.1
On November 7, 1975, Adelaido J. Rivera filed, also with the
Regional Trial Court of Angeles City, a petition for the probate
of the holographic wills. Docketed as SP No. 1091, this petition
was in turn opposed by Jose Rivera, who reiterated that he
was the sole heir of Venancio's intestate estate. 2
On November 11, 1975, the two cases were consolidated.
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. 3
On appeal, the decision of the trial court was affirmed by the
then Intermediate Appellate Court. 4 Its decision is now the
subject of this petition, which urges the reversal of the
respondent court.
In support of his claim that he was the sole heir of the late
Venancio Rivera, Jose sought to show that the said person
was married in 1928 to Maria Vital, who was his mother. He
submitted for this purpose Exhibit A, the marriage certificate of
the couple, and Exhibit B, his own baptismal certificate where
the couple was indicated as his parents. The petitioner also
presented Domingo Santos, who testified that Jose was
indeed the son of the couple and that he saw Venancio and
Jose together several times. 5 Jose himself stressed that
Adelaido considered him a half-brother and kissed his hand as
a sign of respect whenever they met. He insisted that Adelaido
and his brothers and sisters were illegitimate children, sired by
Venancio with Maria Jocson. 6
Adelaido, for his part, maintained that he and his brothers and
sisters were born to Venancio Rivera and Maria Jocson, who
were legally married and lived as such for many years. He
explained that he could not present his parents' marriage
certificate because the record of marriages for 1942 in
Mabalacat were destroyed when the town was burned during
the war, as certified by Exhibit 6. 7 He also submitted his own
birth certificate and those of his sisters Zenaida and Yolanda
Rivera, who were each described therein as the legimitate
80
children of Venancio Rivera and Maria Jocson. 8 Atty.
Regalado P. Morales, then 71 years of age, affirmed that he
knew the deceased and his parents, Magno Rivera and
Gertrudes de los Reyes, and it was during the Japanese
occupation that Venancio introduced to him Maria Jocson as
his wife. 9 To prove that there were in fact two persons by the
same name of Venancio Rivera, Adelaido offered Venancio
Rivera's baptismal certificate showing that his parents were
Magno Rivera and Gertrudes de los Reyes, 10 as contrasted
with the marriage certificate submitted by Jose, which
indicated that the Venancio Rivera subject thereof was the son
of Florencio Rivera and Estrudez Reyes. 11 He also denied
kissing Jose's hand or recognizing him as a brother. 12
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his parents' marriage
certificate because, as he explained it, the marriage records
for 1942 in the Mabalacat civil registry were burned during the
war. Even so, he could still rely on the presumption of
marriage, since it is not denied that Venancio Rivera and Maria
Jocson lived together as husband and wife for many years,
begetting seven children in all during that time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions favor the solidarity of the
family. Thus every intendment of the law or fact leans toward
the validity of marriage, the indissolubility of the marriage
bonds, the legitimacy of children, ... .
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable presumptions. — The following
presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:
xxx xxx xxx
(aa) That a man and woman deporting themselves as husband
and wife have entered into a lawful contract of marriage.
By contrast, although Jose did present his parents' marriage
certificate, Venancio was described therein as the son of
Florencio Rivera. Presumably, he was not the same Venancio
Rivera described in Exhibit 4, his baptismal certificate, as the
son of Magno Rivera. While we realize that such baptismal
certificate is not conclusive evidence of Venancio's filiation
(which is not the issue here) it may nonetheless be considered
to determine his real identity. Jose insists that Magno and
Florencio are one and the same person, arguing that it is not
uncommon for a person to be called by different names. The
Court is not convinced. There is no evidence that Venancio's
father was called either Magno or Florencio. What is more
likely is that two or more persons may live at the same time
and bear the same name, even in the same community. That
is what the courts below found in the cases at bar.
What this Court considers particularly intriguing is why, if it is
true that he was the legitimate son of Venancio Rivera, Jose
did not assert his right as such when his father was still alive.
By his own account, Jose supported himself — and
presumably also his mother Maria Vital — as a gasoline
attendant and driver for many years. All the time, his father
was residing in the same town — and obviously prospering —
and available for support. His alleged father was openly living
with another woman and raising another family, but this was
apparently accepted by Jose without protest, taking no step
whatsoever to invoke his status. If, as he insists, he and
Venancio Rivera were on cordial terms, there is no reason why
81
the father did not help the son and instead left Jose to fend for
himself as a humble worker while his other children by Maria
Jocson enjoyed a comfortable life. Such paternal
discrimination is difficult to understand, especially if it is
considered — assuming the claims to be true — that Jose was
the oldest and, by his own account, the only legitimate child of
Venancio Rivera.
And there is also Maria Vital, whose attitude is no less
incomprehensible. As Venancio's legitimate wife — if indeed
she was — she should have objected when her husband
abandoned her and founded another family by another
woman, and in the same town at that. Seeing that the children
of Maria Jocson were being raised well while her own son
Jose was practically ignored and neglected, she nevertheless
did not demand for him at least support, if not better treatment,
from his legitimate father. It is unnatural for a lawful wife to say
nothing if she is deserted in favor of another woman and for a
caring mother not to protect her son's interests from his
wayward father's neglect. The fact is that this forsaken wife
never demanded support from her wealthy if errant husband.
She did not file a complaint for bigamy or concubinage against
Venancio Rivera and Maria Jocson, the alleged partners in
crime and sin. Maria Vital was completely passive and
complaisant.
Significantly, as noted by the respondent court, Maria Vital was
not even presented at the trial to support her son's allegations
that she was the decedent's lawful wife. Jose says this was not
done because she was already old and bedridden then. But
there was no impediment to the taking of her deposition in her
own house. No effort was made toward this end although her
testimony was vital to the petitioner's cause. Jose dismisses
such testimony as merely "cumulative," but this Court does not
agree. Having alleged that Maria Jocson's marriage to
Venancio Rivera was null and void, Jose had the burden of
proving that serious allegation.
We find from the evidence of record that the respondent court
did not err in holding that the 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.
The existence and therefore also the authenticity of the
holographic wills were questioned by Jose Rivera. In his own
petition in SP No. 1076, he declared that Venancio Rivera died
intestate; and in SP No. 1091, he denied the existence of the
holographic wills presented by Adelaido Rivera for probate. In
both proceedings, Jose Rivera opposed the holographic wills
submitted by Adelaido Rivera and claimed that they were
82
spurious. Consequently, it may be argued, the respondent
court should have applied Article 811 of the Civil Code,
providing as follows:

In the probate of a holographic will, 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 of such witnesses shall be required

The flaw in this argument is that, as we have already

determined, 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.

WHEREFORE, the petition is DENIED and the challenged

decision is AFFIRMED, with costs against the petitioner.

SO ORDERED.

83

G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES
G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R.
ROXAS & PEDRO ROXAS DE JESUS, vs. ANDRES R. DE
JESUS, JR
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of
respondent Hon. Jose C. Colayco, Presiding Judge Court of
First Instance of Manila, Branch XXI disallowing the probate of
the holographic Will of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are
undisputed.
After the death of spouses Andres G. de Jesus and Bibiana
Roxas de Jesus, Special Proceeding No. 81503 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.
On March 26, 1973, petitioner Simeon R. Roxas was
appointed administrator. After Letters of Administration had
been granted to the petitioner, he delivered to the lower court a
document purporting to be the holographic Will of the
deceased Bibiana Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the hearing of the probate
of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment
as administrator, he 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. …
The testimony of Simeon R. Roxas was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de
Jesus who likewise testified that the letter dated "FEB./61 " is
the holographic Will of their deceased mother, Bibiana R. de
Jesus. Both recognized the handwriting of their mother and
positively Identified her signature. They further testified that
their deceased mother understood English, the language in
which the holographic Will is written, and that the date
"FEB./61 " was the date when said Will was executed by their
mother.
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, (b) it was executed through force,
intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by
mistake and/or did not intend, nor could have intended the
said Will to be her last Will and testament at the time of its
execution.
On August 24, 1973, respondent Judge Jose C. Colayco
issued an order allowing the probate of the holographic Will
which he found to have been duly executed in accordance with
law.
84
Respondent Luz Roxas de Jesus filed a motion for
reconsideration alleging inter alia that the alleged holographic
Will of the deceased Bibiana R. de Jesus was not dated as
required by Article 810 of the Civil Code. She contends that
the law requires that the Will should contain the day, month
and year of its execution and that this should be strictly
complied with.
On December 10, 1973, respondent Judge Colayco
reconsidered his earlier order and disallowed the probate of
the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The
dispositive portion of the order reads:
WHEREFORE, the document purporting to be the holographic
Will of Bibiana Roxas de Jesus, is hereby disallowed for not
having been executed as required by the law. The order of
August 24, 1973 is hereby set aside.
The only issue is 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 which reads:
ART. 810. A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.
The petitioners contend 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 Año 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.
Respondent Luz Henson on the other hand submits that the
purported holographic Will is void for non-compliance with
Article 810 of the New Civil Code in that the date must contain
the year, month, and day of its execution. The respondent
contends that Article 810 of the Civil Code was patterned after
Section 1277 of the California Code and Section 1588 of the
Louisiana Code whose Supreme Courts had consistently ruled
that the required date includes the year, month, and day, and
that if any of these is wanting, the holographic Will is invalid.
The respondent further contends that the petitioner cannot
plead liberal construction of Article 810 of the Civil Code
because statutes prescribing the formalities to be observed in
the execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a
strict and literal application of the statutory requirements
regarding the due execution of Wills. We should not overlook
the liberal trend of the Civil Code in the manner of execution of
Wills, the purpose of which, in case of doubt is to prevent
intestacy —
The underlying and fundamental objectives permeating the
provisions of the law on wigs in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last
wishes, but with sufficien safeguards and restrictions to
85
prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modem tendency with
respect to the formalities in the execution of wills. (Report of
the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of
Raymundo Castro v. Bustos (27 SCRA 327) he emphasized
that:
xxx xxx xxx
... 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 Icasiano v. Icasiano, 11 SCRA 422). 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 (Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of
record are to be considered in the application of any given
rule. If the surrounding circumstances point to a regular
execution of the wilt and the instrument appears to have been
executed substantially in accordance with the requirements of
the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its
admission to probate, although the document may suffer from
some imperfection of language, or other non-essential defect.
... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all
the requisites, although compliance is not literal, it is sufficient
if the objective or purpose sought to be accomplished by such
requisite is actually attained by the form followed by the
testator.
The purpose of the solemnities surrounding the execution of
Wills has been expounded by this Court in Abangan v. Abanga
40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. ...
In particular, 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 (Velasco v. Lopez, 1 Phil. 720).
There is no such contingency in this case.
We have carefully reviewed the records of this case and found
no evidence of bad faith and fraud in its execution nor was
there any substitution of Wins and Testaments. There is no
question that the holographic Will of the deceased Bibiana
Roxas de Jesus was entirely written, dated, and signed by the
86
testatrix herself and in a language known to her. There is also
no question as to its genuineness and due execution. All the
children of the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will.
The objection interposed by the oppositor-respondent Luz
Henson is that the holographic Will is fatally defective because
the date "FEB./61 " appearing on the holographic Will is not
sufficient compliance with Article 810 of the Civil Code. This
objection is too technical to be entertained.

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.

WHEREFORE, the instant petition is GRANTED. The order

appealed from is REVERSED and SET ASIDE and the order
allowing the probate of the holographic Will of the deceased
Bibiana Roxas de Jesus is reinstated.

SO ORDERED.

87

G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF MELECIO LABRADOR. SAGRADO LABRADOR
(Deceased) vs. COURT OF APPEALS, 1 GAUDENCIO
LABRADOR, and JESUS LABRADOR,
PARAS, J.:
The sole issue in this case is whether or not the alleged
holographic will of one Melecio Labrador is dated, as provided
for in Article 8102 of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10,
1972, Melecio Labrador died in the Municipality of Iba,
province of Zambales, where he was residing, leaving behind
a parcel of land designated as Lot No. 1916 under Original
Certificate of Title No. P-1652, and the following heirs, namely:
Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina,
Juliana, Hilaria and Jovita, all surnamed Labrador, and a
holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but
substituted by his heirs), Enrica Labrador and Cristobal
Labrador, filed in the court a quo a petition for the probate
docketed as Special Proceeding No. 922-I of the alleged
holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now
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,
alleging therein that on September 30, 1971, that is, before
Melecio's death, for the consideration of Six Thousand
(P6,000) Pesos, testator Melecio executed a Deed of Absolute
Sale, selling, transferring and conveying in favor of oppositors
Jesus and Gaudencio Lot No. 1916 and that as a matter of
fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No.
T-21178. Earlier however, in 1973, Jesus Labrador sold said
parcel of land to Navat for only Five Thousand (P5,000)
Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his
brothers, Gaudencio and Jesus, for the annulment of said
purported Deed of Absolute Sale over a parcel of land which
Sagrado allegedly had already acquired by devise from their
father Melecio Labrador under a holographic will executed on
March 17, 1968, the complaint for annulment docketed as Civil
Case No. 934-I, being premised on the fact that the aforesaid
Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective
evidence, the trial court rendered a joint decision dated
February 28, 1985, allowing the probate of the holographic will
and declaring null and void the Deed of Absolute sale. The
court a quo had also directed the respondents (the defendants
in Civil Case No. 934-I) to reimburse to the petitioners the sum
of P5,000.00 representing the redemption price for the
property paid by the plaintiff-petitioner Sagrado with legal
interest thereon from December 20, 1976, when it was paid to
vendee a retro.
Respondents appealed the joint decision to the Court of
Appeals, which on March 10, 1988 modified said joint decision
of the court a quo by denying the allowance of the probate of
the will for being undated and reversing the order of
88
reimbursement. Petitioners' Motion for Reconsideration of the
aforesaid decision was denied by the Court of Appeals, in the
resolution of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by
respondent court, to wit:
I time for me being now ninety three (93) years, then I feel it is
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND
APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL
OF THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE
ORDER OF THE LOWER COURT DIRECTING THE
REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS
ERRONEOUS.
The alleged undated holographic will written in Ilocano
translated into English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is
assigned and shared or the partition in favor of SAGRADO
LABRADOR which is the fishpond located and known place as
Tagale.
And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary
at the South is the property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary in the West is
the sea, known as the SEA as it is, and the boundary on the
NORTH is assignment belonging to CRISTOBAL LABRADOR,
who likewise is also their brother. That because it is now the
the right time for me to partition the fishponds which were and
had been bought or acquired by us, meaning with their two
mothers, hence there shall be no differences among
themselves, those among brothers and sisters, for it is I myself
their father who am making the apportionment and delivering
to each and everyone of them the said portion and assignment
so that there shall not be any cause of troubles or differences
among the brothers and sisters.
II — Second Page
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the
said fishpond, and this being in the month of March, 17th day,
in the year 1968, and this decision and or instruction of mine is
the matter to be followed. And the one who made this writing is
no other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and
it is this that should be followed and complied with in order that
any differences or troubles may be forestalled and nothing will
happen along these troubles among my children, and that they
will be in good relations among themselves, brothers and
sisters;
And those i
89
mprovements and fruits of the land; mangoes, bamboos and
all coconut trees and all others like the other kind of bamboo
by name of Bayog, it is their right to get if they so need, in
order that there shall be nothing that anyone of them shall
complain against the other, and against anyone of the brothers
and sisters.
III — THIRD PAGE
And that referring to the other places of property, where the
said property is located, the same being the fruits of our
earnings of the two mothers of my children, there shall be
equal portion of each share among themselves, and or to be
benefitted with all those property, which property we have
been able to acquire.
That in order that there shall be basis of the truth of this writing
(WILL) which I am here hereof manifesting of the truth and of
the fruits of our labor which their two mothers, I am signing my
signature below hereof, and that this is what should be
complied with, by all the brothers and sisters, the children of
their two mothers — JULIANA QUINTERO PILARISA and
CASIANA AQUINO VILLANUEVA Your father who made this
writing (WILL), and he is, MELECIO LABRADOR y RALUTIN
(p. 46, Rollo)
The petition, which principally alleges that the holographic will
is really dated, although the date is not in its usual place, is
impressed with merit.
The will has been dated in the hand of the testator himself in
perfect compliance with Article 810.1âwphi1 It is worthy of
note to quote the first paragraph of the second page of the
holographic will, viz:
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the
said fishpond, and this being in the month of March, 17th day,
in the year 1968, and this decision and or instruction of mine is
the matter to be followed. And the one who made this writing is
no other than MELECIO LABRADOR, their father. (emphasis
supplied) (p. 46, Rollo)
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 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. This was thus a failure
to comply with Article 783 which defines a will as "an act
whereby a person is permitted, with the formalities prescribed
by law, to control to a certain degree the disposition of his
estate, to take effect after his death."
Respondents are in error. 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
90
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.

Anent the second issue of finding the reimbursement of the

P5,000 representing the redemption price as erroneous,
respondent court's conclusion is incorrect. When private
respondents sold the property (fishpond) with right to
repurchase to Navat for P5,000, they were actually selling
property belonging to another and which they had no authority
to sell, rendering such sale null and void. Petitioners, thus
"redeemed" the property from Navat for P5,000, to
immediately regain possession of the property for its
disposition in accordance with the will. Petitioners therefore
deserve to be reimbursed the P5,000.

PREMISES CONSIDERED, the decision of the Court of

Appeals dated March 10, 1988 is hereby REVERSED. The
holographic will of Melecio Labrador is APPROVED and
ALLOWED probate. The private respondents are directed to
REIMBURSE the petitioners the sum of Five Thousand Pesos
(P5,000.00).
SO ORDERED.

91
G.R. No. 123486 August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and
UEFEMIA PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of
the Court of Appeals1 and its resolution denying
reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the
authenticity of testators holographic will has been established
and the handwriting and signature therein (exhibit S) are hers,
enough to probate said will. Reversal of the judgment
appealed from and the probate of the holographic will in
question be called for. The rule is that after plaintiff has
completed presentation of his evidence and the defendant files
a motion for judgment on demurrer to evidence on the ground
that upon the facts and the law plaintiff has shown no right to
relief, if the motion is granted and the order to dismissal is
reversed on appeal, the movant loses his right to present
evidence in his behalf (Sec, 1 Rule 35 Revised Rules of
Court). Judgment may, therefore, be rendered for appellant in
the instant case.
Wherefore, the order appealed from is REVERSED and
judgment rendered allowing the probate of the holographic will
of the testator Matilde Seño Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and
Eufemia Patigas, devisees and legatees of the holographic will
of the deceased Matilde Seño Vda. de Ramonal, filed with the
Regional Trial Court, Misamis Oriental, Branch 18, a petition3
for probate of the holographic will of the deceased, who died
on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde
Seño Vda. de Ramonal, was of sound and disposing mind
when she executed the will on August 30, 1978, that there was
no fraud, undue influence, and duress employed in the person
of the testator, and 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.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel
Ramonal filed an opposition5 to the petition for probate,
alleging that the holographic will was a forgery and that the
same is even illegible. This gives an impression that a "third
hand" of an interested party other than the "true hand" of
Matilde Seño Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or
appearing on 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
92
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.1âwphi1.nêt
Respondents presented six (6) witnesses and various
documentary evidence. Petitioners instead of presenting their
evidence, filed a demurrer6 to evidence, claiming that
respondents failed to establish sufficient factual and legal
basis for the probate of the holographic will of the deceased
Matilde Seño Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the
Demurrer to Evidence having being well taken, same is
granted, and the petition for probate of the document (Exhibit
"S") on the purported Holographic Will of the late Matilde Seño
Vda. de Ramonal, is denied for insufficiency of evidence and
lack of merits.7
On December 12, 1990, respondents filed a notice of appeal,8
and in support of their appeal, the respondents once again
reiterated the testimony of the following witnesses, namely: (1)
Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal
Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6)
Evangeline Calugay.
To have a clear understanding of the testimonies of the
witnesses, we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of
Misamis Oriental, where the special proceedings for the
probate of the holographic will of the deceased was filed. He
produced and identified the records of the case. The
documents presented bear the signature of the deceased,
Matilde Seño Vda. de Ramonal, for the purpose of laying the
basis for comparison of the handwriting of the testatrix, with
the writing treated or admitted as genuine by the party against
whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was
presented to produced and identify the voter's affidavit of the
decedent. However, the voters' affidavit was not produced for
the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde
Seño Vda. de Ramonal was her aunt, and that after the death
of Matilde's husband, the latter lived with her in her parent's
house for eleven (11) years from 1958 to 1969. During those
eleven (11) years of close association the deceased, she
acquired familiarity with her signature and handwriting as she
used to accompany her (deceased Matilde Seño Vda. de
Ramonal) in collecting rentals from her various tenants of
commercial buildings, and deceased always issued receipts.
In addition to this, she (witness Matilde Binanay) assisted the
deceased in posting the records of the accounts, and carried
personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of
the death of Matilde Vda. de Ramonal, she left a holographic
will dated August 30, 1978, which was personally and entirely
written, dated and signed, by the deceased and that all the
dispositions therein, the dates, and the signatures in said will,
were that of the deceased.
93
Fiscal Rodolfo Waga testified that before he was appointed 1. My share at Cogon, Raminal Street, for Evangeline Calugay.
City Fiscal of Cagayan de Oro, he was a practicing lawyer, and
handled all the pleadings and documents signed by the (Sgd) Matilde Vda de Ramonal
deceased in connection with the proceedings of her late
husband, as a result of which he is familiar with the August 30, 1978
handwriting of the latter. He testified that the signature
appearing in the holographic will was similar to that of the 2. Josefina Salcedo must be given 1,500 square meters at
deceased, Matilde Seño Vda. de Ramonal, but he can not be Pinikan Street.
sure.
(Sgd) Matilde Vda de Ramonal
The fifth witness presented was Mrs. Teresita Vedad, an
employee of the Department of Environment and Natural August 30, 1978
Resources, Region 10. She testified that she processed the
application of the deceased for pasture permit and was familiar 3. My jewelry's shall be divided among:
with the signature of the deceased, since the signed
documents in her presence, when the latter was applying for 1. Eufemia Patigas
pasture permit.
2. Josefina Salcedo
Finally, Evangeline Calugay, one of the respondents, testified
that she had lived with the deceased since birth, and was in 3. Evangeline Calugay
fact adopted by the latter. That after a long period of time she (Sgd) Matilde Vda de Ramonal
became familiar with the signature of the deceased. She
testified that the signature appearing in the holographic will is August 30, 1978
the true and genuine signature of Matilde Seño Vda. de
Ramonal. 4. I bequeath my one (1) hectare land at Mandumol, Indahag
to Evangeline R. Calugay
The holographic will which was written in Visayan, is translated
in English as follows: (Sgd) Matilde Vda de Ramonal

Instruction August 30, 1978

August 30, 1978

94
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village
in favor of Evangeline R. Calugay, Helen must continue with
the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision9
ruling that the appeal was meritorious. Citing the decision in
the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr.
Justice J. B. L. Reyes, a recognized authority in civil law, the
Court of Appeals held:
. . . even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present
civil code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of
the testator, under penalty of having the probate denied. Since
no witness may have been present at the execution of the
holographic will, none being required by law (art. 810, new civil
code), it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of
finding and producing any three witnesses; they must be
witnesses "who know the handwriting and signature of the
testator" and who can declare (truthfully, of course, even if the
law does not express) "that the will and the signature are in the
handwriting of the testator." There may be no available witness
acquainted with the testator's hand; or even if so familiarized,
the witness maybe unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of article 811 may
thus become an impossibility. That is evidently the reason why
the second paragraph of article 811 prescribes that —
in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
As can be see, the law foresees, the possibility that no
qualified witness ma be found (or what amounts to the same
thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert
evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if
no contest is had) was derived from the rule established for
ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL 291;
Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored
that the requirement can be considered mandatory only in
95
case of ordinary testaments, precisely because the presence
of at least three witnesses at the execution of ordinary wills is
made by law essential to their validity (Art. 805). Where the will
is holographic, no witness need be present (art. 10), and the
rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is
conditioned by the words "if the court deem it necessary",
which reveal that what the law deems essential is that the
court should be convinced of the will's authenticity. Where the
prescribed number of witnesses is produced and the court is
convinced by their testimony that the will is genuine, it may
consider it unnecessary to call for expert evidence. On the
other hand, if no competent witness is available, or none of
those produced is convincing, the court may still, and in fact it
should resort to handwriting experts. The duty of the court, in
fine, is to exhaust all available lines of inquiry, for the state is
as much interested as the proponent that the true intention of
the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of
the holographic will were contested, Article 811 of the civil
code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of
the testator, under penalty of the having the probate denied.
No witness need be present in the execution of the
holographic will. And the rule requiring the production of three
witnesses is merely permissive. What the law deems essential
is that the court is convinced of the authenticity of the will. Its
duty is to exhaust all available lines of inquiry, for the state is
as much interested in the proponent that the true intention of
the testator be carried into effect. And because the law leaves
it to the trial court to decide if experts are still needed, no
unfavorable inference can be drawn from a party's failure to
offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay,
Matilde Ramonal Binanay and other witnesses definitely and in
no uncertain terms testified that the handwriting and signature
in the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the Court of
Appeals sustained the authenticity of the holographic will and
the handwriting and signature therein, and allowed the will to
probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs.
Singson, 109 Phil. 102, relied upon by the respondent Court of
Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that
private respondents had been able to present credible
evidence to that the date, text, and signature on the
holographic will written entirely in the hand of the testatrix.
96
(3) Whether or not the Court of Appeals erred in not analyzing court, Court of First Instance, Misamis Oriental, he merely
the signatures in the holographic will of Matilde Seño Vda. de identified the record of Special Proceedings No. 427 before
Ramonal. said court. He was not presented to declare explicitly that the
In this petition, the petitioners ask whether the provisions of signature appearing in the holographic was that of the
Article 811 of the Civil Code are permissive or mandatory. The deceased.
article provides, as a requirement for the probate of a
contested holographic will, that at least three witnesses Generosa E. Senon, the election registrar of Cagayan de Oro
explicitly declare that the signature in the will is the genuine City, was presented to identify the signature of the deceased in
signature of the testator.1âwphi1.nêt the voter's affidavit, which was not even produced as it was no
longer available.
We are convinced, based on the language used, that Article
811 of the Civil Code is mandatory. The word "shall" connotes Matilde Ramonal Binanay, on the other hand, testified that:
a mandatory order. We have ruled that "shall" in a statute
commonly denotes an imperative obligation and is inconsistent Q. And you said for eleven (11) years Matilde Vda de
with the idea of discretion and that the presumption is that the Ramonal resided with your parents at Pinikitan, Cagayan de
word "shall," when used in a statute is mandatory.11 Oro City. Would you tell the court what was your occupation or
how did Matilde Vda de Ramonal keep herself busy that time?
Laws are enacted to achieve a goal intended and to guide A. Collecting rentals.
against an evil or mischief that aims to prevent. In the case at Q. From where?
bar, the goal to achieve is to give effect to the wishes of the A. From the land rentals and commercial buildings at
deceased and the evil to be prevented is the possibility that Pabayo-Gomez streets.12
unscrupulous individuals who for their benefit will employ xxx xxx xxx
means to defeat the wishes of the testator. Q. Who sometime accompany her?
A. I sometimes accompany her.
So, we believe that the paramount consideration in the present Q. In collecting rentals does she issue receipts?
petition is to determine the true intent of the deceased. An A. Yes, sir.13
exhaustive and objective consideration of the evidence is xxx xxx xxx
imperative to establish the true intent of the testator. Q. Showing to you the receipt dated 23 October 1979, is this
the one you are referring to as one of the receipts which she
It will be noted that not all the witnesses presented by the issued to them?
respondents testified explicitly that they were familiar with the A. Yes, sir.
handwriting of testator. In the case of Augusto Neri, clerk of

97
Q. Now there is that signature of Matilde vda. De Ramonal, Q. You testified that at time of her death she left a will. I am
whose signature is that Mrs. Binanay? showing to you a document with its title "tugon" is this the
A. Matilde vda. De Ramonal. document you are referring to?
Q. Why do you say that is the signature of Matilde Vda. De A. Yes, sir.
Ramonal? Q. Showing to you this exhibit "S", there is that handwritten
A. I am familiar with her signature. "tugon", whose handwriting is this?
Q. Now, you tell the court Mrs. Binanay, whether you know A. My Aunt.
Matilde vda de Ramonal kept records of the accounts of her Q. Why do you say this is the handwriting of your aunt?
tenants? A. Because I am familiar with her signature.16
A. Yes, sir.
Q. Why do you say so? What Ms. Binanay saw were pre-prepared receipts and letters
A. Because we sometimes post a record of accounts in of the deceased, which she either mailed or gave to her
behalf of Matilde Vda. De Ramonal. tenants. She did not declare that she saw the deceased sign a
Q. How is this record of accounts made? How is this document or write a note.
reflected?
A. In handwritten.14 Further, during the cross-examination, the counsel for
xxx xxx xxx petitioners elicited the fact that the will was not found in the
Q. In addition to collection of rentals, posting records of personal belongings of the deceased but was in the
accounts of tenants and deed of sale which you said what else possession of Ms. Binanay. She testified that:
did you do to acquire familiarity of the signature of Matilde Vda
De Ramonal? Q. Mrs. Binanay, when you were asked by counsel for the
A. Posting records. petitioners if the late Matilde Seno vda de Ramonal left a will
Q. Aside from that? you said, yes?
A. Carrying letters. A. Yes, sir.
Q. Letters of whom? Q. Who was in possession of that will?
A. Matilde. A. I.
Q. To whom? Q. Since when did you have the possession of the will?
A. To her creditors.15 A. It was in my mother's possession.
xxx xxx xxx Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said
this was originally in the possession of your mother?

98
A. 1985.17 Q. Now, let us go to the third signature of Matilde Ramonal.
xxx xxx xxx Do you know that there are retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. Now, Mrs. Binanay was there any particular reason why Q. And also in Matilde the letter L is continued to letter D?
your mother left that will to you and therefore you have that in A. Yes, sir.
your possession? Q. Again the third signature of Matilde Vda de Ramonal the
A. It was not given to me by my mother, I took that in the letter L in Matilde is continued towards letter D.
aparador when she died. A. Yes, sir.
Q. After taking that document you kept it with you? Q. And there is a retracing in the word Vda.?
A. I presented it to the fiscal. A. Yes, sir.20
Q. For what purpose? xxx xxx xxx
A. Just to seek advice. Q. Now, that was 1979, remember one year after the alleged
Q. Advice of what? holographic will. Now, you identified a document marked as
A. About the will.18 Exhibit R. This is dated January 8, 1978 which is only about
In her testimony it was also evident that Ms. Binanay kept the eight months from August 30, 1978. Do you notice that the
fact about the will from petitioners, the legally adopted children signature Matilde Vda de Ramonal is beautifully written and
of the deceased. Such actions put in issue her motive of legible?
keeping the will a secret to petitioners and revealing it only
after the death of Matilde Seño Vda. de Ramonal. A. Yes, sir the handwriting shows that she was very
In the testimony of Ms. Binanay, the following were exhausted.
established: Q. You just say that she was very exhausted while that in
1978 she was healthy was not sickly and she was agile. Now,
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a you said she was exhausted?
sickly person is that correct? A. In writing.
A. Yes, sir. Q. How did you know that she was exhausted when you were
Q. She was up and about and was still uprightly and she not present and you just tried to explain yourself out because
could walk agilely and she could go to her building to collect of the apparent inconsistencies?
rentals, is that correct? A. That was I think. (sic).
A. Yes, sir.19 Q. Now, you already observed this signature dated 1978, the
xxx xxx xxx same year as the alleged holographic will. In exhibit I, you will
notice that there is no retracing; there is no hesitancy and the

99
signature was written on a fluid movement. . . . And in fact, the
name Eufemia R. Patigas here refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the
questioned signature appearing in the alleged holographic will
marked as Exhibit X but in the handwriting themselves, here
you will notice the hesitancy and tremors, do you notice that?
A. Yes, sir.21
Evangeline Calugay declared that the holographic will was
written, dated and signed in the handwriting of the testator.
She testified that:
Q. You testified that you stayed with the house of the
spouses Matilde and Justo Ramonal for the period of 22 years.
Could you tell the court the services if any which you rendered
to Matilde Ramonal?
A. During my stay I used to go with her to the church, to
market and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank,
paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire
familiarity of the handwriting of Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.22
xxx xxx xxx
Q. Now, I am showing to you Exhibit S which is captioned
"tugon" dated Agosto 30, 1978 there is a signature here below
item No. 1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give as to why she
was familiar with the handwriting of the deceased was
because she lived with her since birth. She never declared that
she saw the deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the
husband is my godfather. Actually I am related to the husband
by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.24
xxx xxx xxx
Q. Can you tell this court whether the spouses Justo
Ramonal and Matilde Ramonal have legitimate children?
A. As far as I know they have no legitimate children.25
xxx xxx xxx
Q. You said after becoming a lawyer you practice your
profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde
vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
100
Q. When you said assisted, you acted as her counsel? Any
sort of counsel as in what case is that, Fiscal?
A. It is about the project partition to terminate the property,
which was under the court before.26
xxx xxx xxx
Q. Appearing in special proceeding no. 427 is the amended
inventory which is marked as exhibit N of the estate of Justo
Ramonal and there appears a signature over the type written
word Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de
Ramonal.27
xxx xxx xxx
Q. Aside from attending as counsel in that Special
Proceeding Case No. 427 what were the other assistance
wherein you were rendering professional service to the
deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters
but if there are documents to show that I have assisted then I
can recall.28
xxx xxx xxx
Q. Now, I am showing to you exhibit S which is titled "tugon",
kindly go over this document, Fiscal Waga and tell the court
whether you are familiar with the handwriting contained in that
document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is
this?
A. I think this signature here it seems to be the signature of
Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde
Vda de Ramonal, can you tell the court whose signature is
this?
A. Well, that is similar to that signature appearing in the
project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de
Ramonal, can you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature of
Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the
court whose signature is this?
A. The same is true with the signature in item no. 4. It seems
that they are similar.29
xxx xxx xxx
Q. Mr. Prosecutor, I heard you when you said that the
signature of Matilde Vda de Ramonal Appearing in exhibit S
seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde
vda de Ramonal. You are merely supposing that it seems to be
her signature because it is similar to the signature of the
project of partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals
allowed the will to probate and disregard the requirement of
three witnesses in case of contested holographic will, citing the
101
decision in Azaola vs. Singson,31 ruling that the requirement
is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the
object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends.
But on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will.
However, we cannot eliminate the possibility of a false
document being adjudged as the will of the testator, which is
why if the holographic will is contested, that law requires three
witnesses to declare that the will was in the handwriting of the
deceased.
The will was found not in the personal belongings of the
deceased but with one of the respondents, who kept it even
before the death of the deceased. In the testimony of Ms.
Binanay, she revealed that the will was in her possession as
early as 1985, or five years before the death of the deceased.
There was no opportunity for an expert to compare the
signature and the handwriting of the deceased with other
documents signed and executed by her during her lifetime.
The only chance at comparison was during the
cross-examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the documents
which contained the signature of the deceased with that of the
holographic will and she is not a handwriting expert. Even the
former lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that
the strokes are different when compared with other documents
written by the testator. The signature of the testator in some of
the disposition is not readable. There were uneven strokes,
retracing and erasures on the will.
Comparing the signature in the holographic will dated August
30, 1978,33 and the signatures in several documents such as
the application letter for pasture permit dated December 30,
1980,34 and a letter dated June 16, 1978,35 the strokes are
different. In the letters, there are continuous flows of the
strokes, evidencing that there is no hesitation in writing unlike
that of the holographic will. We, therefore, cannot be certain
that ruling holographic will was in the handwriting by the
deceased.
IN VIEW WHEREOF, the decision appealed from is SET
ASIDE. The records are ordered remanded to the court of
origin with instructions to allow petitioners to adduce evidence
in support of their opposition to the probate of the holographic
will of the deceased Matilde Seño vda. de
Ramonal.1âwphi1.nêt
No costs.
SO ORDERED.
102
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, vs. THE
COURT OF APPEALS AND CLEMENTE SAND,
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992,
the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of
November 19, 1988 of the trial court is hereby REVERSED
and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City,
Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument
submitted for probate is the holographic will of the late Annie
Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following:
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.
On January 20, 1983, petitioners instituted Sp. Proc. No.
Q-37171, 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 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. He contested the disposition in the will of a house
and lot located in Cabadbaran, Agusan Del Norte. He claimed
that said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must
decide only the question of identity of the will, its due
execution and the testamentary capacity of the testatrix, this
probate court finds no reason at all for the disallowance of the
will for its failure to comply with the formalities prescribed by
law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in
question is different from the will actually executed by the
testatrix. The only objections raised by the oppositors . . . are
that the will was not written in the handwriting of the testatrix
which properly refers to the question of its due execution, and
not to the question of identity of will. No other will was alleged
to have been executed by the testatrix other than the will
herein presented. Hence, in the light of the evidence adduced,
the identity of the will presented for probate must be accepted,
103
i.e., the will submitted in Court must be deemed to be the will
actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in
the handwriting of the testatrix has been disputed, the
petitioners, however, have satisfactorily shown in Court that
the holographic will in question was indeed written entirely,
dated and signed in the handwriting of the testatrix. Three (3)
witnesses who have convincingly shown knowledge of the
handwriting of the testatrix have been presented and have
explicitly and categorically identified the handwriting with which
the holographic will in question was written to be the genuine
handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the
holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix,
(private respondent) Clemente Sand himself has testified in
Court that the testatrix was completely in her sound mind
when he visited her during her birthday celebration in 1981, at
or around which time the holographic will in question was
executed by the testatrix. To be of sound mind, it is sufficient
that the testatrix, at the time of making the will, knew the value
of the estate to be disposed of, the proper object of her bounty,
and the character of the testamentary act . . . The will itself
shows that the testatrix even had detailed knowledge of the
nature of her estate. She even identified the lot number and
square meters of the lots she had conveyed by will. The
objects of her bounty were likewise identified explicitly. And
considering that she had even written a nursing book which
contained the law and jurisprudence on will and succession,
there is more than sufficient showing that she knows the
character of the testamentary act.
In this wise, the question of identity of the will, its due
execution and the testamentary capacity of the testatrix has to
be resolved in favor of the allowance of probate of the will
submitted herein.
Likewise, no evidence was presented to show sufficient reason
for the disallowance of herein holographic will. While it was
alleged that the said will was procured by undue and improper
pressure and influence on the part of the beneficiary or of
some other person, the evidence adduced have not shown
any instance where improper pressure or influence was
exerted on the testatrix. (Private respondent) Clemente Sand
has testified that the testatrix was still alert at the time of the
execution of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also established that
she is a very intelligent person and has a mind of her own. Her
independence of character and to some extent, her sense of
superiority, which has been testified to in Court, all show the
unlikelihood of her being unduly influenced or improperly
pressured to make the aforesaid will. It must be noted that the
undue influence or improper pressure in question herein only
refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of
another proceeding. Hence, under the circumstances, this
104
Court cannot find convincing reason for the disallowance of
the will herein.
Considering then that it is a well-established doctrine in the
law on succession that in case of doubt, testate succession
should be preferred over intestate succession, and the fact
that no convincing grounds were presented and proven for the
disallowance of the holographic will of the late Annie Sand, the
aforesaid will submitted herein must be admitted to probate. 3
(Citations omitted.)
On appeal, said Decision was reversed, and the petition for
probate of decedent's will was dismissed. The Court of
Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did not
comply with Articles 813 and 814 of the New Civil Code, which
read, as follows:
Art. 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration
in a holographic will, the testator must authenticate the same
by his full signature.
It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found
that the erasures, alterations and cancellations made thereon
had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall
be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable
to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or
threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other
person for his benefit;
(e) If the signature of the testator was procured by fraud or
trick, and he did not intend that the instrument should be his
will at the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following
cases;
(1) If the formalities required by law have not been complied
with;
(2) If the testator was insane, or otherwise mentally incapable
of making a will, at the time of its execution;
105
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing
his signature thereto.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, 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. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in accordance
with the formalities prescribed by law. It held that Articles 813
and 814 of the New Civil Code, ante, were not complied with,
hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil.
476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of
the New Civil Code.
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, 7 as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed. (Emphasis
supplied.)
Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably
handwritten by the testator.
106
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in
the holographic will, but not its probate. If the testator fails to
sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however,
does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article
814. In the case of Kalaw vs. Relova 132 SCRA 237 242
(1984), this Court held:
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have
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. Manresa gave
an identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the
will itself. 10 The lack of authentication will only result in
disallowance of such changes.
It is also proper to note that the requirements of authentication
of changes and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They
read as follows:
Art. 678: A will is called holographic when the testator writes it
himself in the form and with the requisites required in Article
688.
Art. 688: Holographic wills may be executed only by persons
of full age.
In order that the will be valid it must be drawn on stamped
paper corresponding to the year of its execution, written in its
entirety by the testator and signed by him, and must contain a
statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words,
the testator must identify them over his signature.
Foreigners may execute holographic wills in their own
language.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of the
New Civil Code — and not those found in Articles 813 and 814
of the same Code — are essential to the probate of a
holographic will.
The Court of Appeals further held that decedent Annie Sand
could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct
and must be affirmed.
107
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. 11 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 (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus, as
correctly held by respondent court, she cannot validly dispose
of the whole property, which she shares with her father's other
heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The

Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE, except
with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision
of the Regional Trial Court of Quezon City, Branch 94 in Sp.
Proc. No. Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the
Cabadbaran property. No costs.

SO ORDERED.

108
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW vs. HON. JUDGE BENJAMIN RELOVA.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K.
KALAW, claiming to be the sole heir of his deceased sister,
Natividad K. Kalaw, filed a petition before the Court of First
Instance of Batangas, Branch VI, Lipa City, for the probate of
her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a
resident of Lipa City, being of sound and disposing mind and
memory, do hereby declare thus to be my last will and
testament.
1. It is my will that I'll be burried in the cemetery of the catholic
church of Lipa City. In accordance with the rights of said
Church, and that my executrix hereinafter named provide and
erect at the expose of my state a suitable monument to
perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a
sister of the testatrix as her sole heir. Hence, on November 10,
1971, petitioner ROSA K. Kalaw opposed probate alleging, in
substance, that the holographic Will contained alterations,
corrections, and insertions without the proper authentication by
the full signature of the testatrix as required by Article 814 of
the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will the testator must authenticate
the same by his full signature.
ROSA's position was that the holographic Will, as first written,
should be given effect and probated so that she could be the
sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated
September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National
Bureau of Investigation for examination. The NBI reported that
the handwriting, the signature, the insertions and/or additions
and the initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether
the win, Exhibit 'C', should be admitted to probate although the
alterations and/or insertions or additions above-mentioned
were not authenticated by the full signature of the testatrix
pursuant to Art. 814 of the Civil Code. The petitioner contends
that the oppositors are estopped to assert the provision of Art.
814 on the ground that they themselves agreed thru their
counsel to submit the Document to the NBI FOR
109
EXAMINATIONS. This is untenable. The parties did not agree,
nor was it impliedly understood, that the oppositors would be
in estoppel.
The Court finds, therefore, that the provision of Article 814 of
the Civil Code is applicable to Exhibit "C". Finding the
insertions, alterations and/or additions in Exhibit "C" not to be
authenticated by the full signature of the testatrix Natividad K.
Kalaw, the Court will deny the admission to probate of Exhibit
"C".
WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, 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 denied in an Order, dated November 2,
1973, on the ground that "Article 814 of the Civil Code being ,
clear and explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate,
and the Order dated November 2, 1973 denying
reconsideration, ROSA filed this Petition for Review on
certiorari on the sole legal question of whether or not the
original unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be
probated or not, with her as sole heir.
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.1 Manresa
gave an Identical commentary when he said "la omision de la
salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de
1895." 2
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,
The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a
holographic Will, which affect only the efficacy of the altered
words themselves but not the essence and validity of the Will
itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be
determined with certitude. As Manresa had stated in his
commentary on Article 688 of the Spanish Civil Code, whence
Article 814 of the new Civil Code was derived.
110
WHEREFORE, this Petition is hereby dismissed and the
Decision of respondent Judge, dated September 3, 1973, is
hereby affirmed in toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Article 814 of the Civil Code. The original unaltered will naming
Rosa as sole heir cannot, however, be given effect in view of
the trial court's factual finding that the testatrix had by her own
handwriting substituted Gregorio for Rosa, so that there is no
longer any will naming Rosa as sole heir. The net result is that
the testatrix left no valid will and both Rosa and Gregorio as
her next of kill succeed to her intestate estate.

Relova, J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole

question of law, is bound by the trial court's factual finding that
the peculiar alterations in the holographic will crossing out
Rosa's name and instead inserting her brother Gregorio's
name as sole heir and "sole executrix" were made by the
testatrix in her own handwriting. (I find it peculiar that the
testatrix who was obviously an educated person would
unthinkingly make such crude alterations instead of consulting
her lawyer and writing an entirely new holographic wig in order
to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K.
Kalaw" and inserting "brother Gregorio Kalaw" as sole heir is
not even initialed by the testatrix. Only the second alteration
crossing out "sister Rosa K. Kalaw" and inserting "brother
Gregorio Kalaw" as "sole executrix" is initialed.) Probate of the
radically altered will replacing Gregorio for Rosa as sole heir is
properly denied, since the same was not duly authenticated by
the full signature of the executrix as mandatorily required by

111
G.R. No. 76714 June 2, 1994
SALUD TEODORO VDA. DE PEREZ, Petitioner, v. HON.
ZOTICO A. TOLETE in his capacity as Presiding Judge,
Branch 18, RTC, Bulacan, Respondent.
QUIASON, J.:
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan,
who became American citizens, established a successful
medical practice in New York, U.S.A. The Cunanans lived at
No. 2896 Citation Drive, Pompey, Syracuse, New York, with
their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14
On August 23, 1979, Dr. Cunanan executed a last will and
testament, bequeathing to his wife "all the remainder" of his
real and personal property at the time of his death
"wheresoever situated" (Rollo, p. 35). In the event he would
survive his wife, he bequeathed all his property to his children
and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee.
He appointed his wife as executrix of his last will and
testament and Dr. Rafael G. Cunanan, Jr. as substitute
executor. Article VIII of his will states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die under
such circumstances that there is not sufficient evidence to
determine the order of our deaths, then it shall be presumed
that I predeceased her, and my estate shall be administered
and distributed, in all respects, in accordance with such
presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan
executed her own last will and testament containing the same
provisions as that of the will of her husband. Article VIII of her
will states:
If my husband, JOSE F. CUNANAN, and I shall die under such
circumstances that there is not sufficient evidence to
determine the order of our deaths, then it shall be presumed
that he predeceased me, and my estate shall be administered
and distributed in all respects, in accordance with such
presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family
perished when they were trapped by fire that gutted their
home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and
substitute executor of the two wills, filed separate proceedings
for the probate thereof with the Surrogate Court of the County
of Onondaga, New York. On April 7, these two wills were
admitted to probate and letters testamentary were issued in
his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr.
Evelyn P. Cunanan, and petitioner herein, filed with the
Regional P. Cunanan, and petitioner herein, filed with the
Regional Trial Court, Malolos, Bulacan a petition for the
reprobate of the two bills ancillary to the probate proceedings
in New York. She also asked that she be appointed the special
administratrix of the estate of the deceased couple consisting
primarily of a farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos,
Bulacan, presided by Judge Gualberto J. de la Llana, issued
112
an order, directing the issuance of letters of special
administration in favor of petitioner upon her filing of a
P10,000.00 bond. The following day, petitioner posted the
bond and took her oath as special administration.
As her first act of administration, petitioner filed a motion,
praying that the Philippine Life Insurance Company be
directed to deliver the proceeds in the amount of P50,000.00
of the life insurance policy taken by Dr. Jose F. Cunanan with
Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as
beneficiaries. The trial court granted the motion
Counsel for the Philippine American Life Insurance Company
then filed a manifestation, stating that said company then filed
a manifestation, stating that said company had delivered to
petitioner the amount of P49,765.85, representing the
proceeds of the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr.
Rafael Cunanan, Sr. be ordered to deliver to her a Philippine
Trust Company passbook with P25,594.00 in savings deposit,
and the Family Savings Bank time deposit certificates in the
total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance
as counsel for the heirs of Dr. Jose F. Cunanan, namely, Dr.
Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia
Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan
Concepcion (Cunanan heirs). He also manifested that before
receiving petitioner's motion of May 19, 1983, his clients were
unaware of the filing of the testate estate case and therefore,
"in the interest of simple fair play," they should be notified of
the proceedings (Records, p. 110). He prayed for deferment of
the hearing on the motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13,
1983, asserting: (1) that the "Cunanan collaterals are neither
heirs nor creditors of the late Dr. Jose F. Cunanan" and
therefore, they had "no legal or proprietary interests to protect"
and "no right to intervene"; (2) that the wills of Dr. Jose F.
Cunanan and Dr. Evelyn Perez-Cunanan, being American
citizens, were executed in accordance with the solemnities
and formalities of New York laws, and produced "effects in this
jurisdiction in accordance with Art. 16 in relation to Art. 816 of
the Civil Code"; (3) that under Article VIII of the two wills, it
was presumed that the husband predeceased the wife; and (4)
that "the Cunanan collaterals are neither distributees, legatees
or beneficiaries, much less, heirs as heirship is only by
institution" under a will or by operation of the law of New York
(Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of
May 19, 1983. However, on July 21, the Cunanan heirs filed a
motion to nullify the proceedings and to set aside the
appointment of, or to disqualify, petitioner as special
administratrix of the estates of Dr. Jose F. Cunanan and Dr.
Evelyn Perez-Cunanan. The motion stated: (1) that being the
"brothers and sisters and the legal and surviving heirs" of Dr.
Jose F. Cunanan, they had been "deliberately excluded" in the
petition for the probate of the separate wills of the Cunanan
spouses thereby misleading the Bulacan court to believe that
petitioner was the sole heir of the spouses; that such
"misrepresentation" deprived them of their right to "due
process in violation of Section 4, Rule 76 of the Revised Rules
of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of
113
the estate of the Cunanan spouses, was likewise not notified
of the hearings in the Bulacan court; (3) that the
"misrepresentation and concealment committed by" petitioner
rendered her unfit to be a special administratrix; (4) that Dr.
Rafael G. Cunanan, Jr. had, by virtue of a verified power of
attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that
Dr. Rafael Cunanan, Sr. is qualified to be a regular
administrator "as practically all of the subject estate in the
Philippines belongs to their brother, Dr. Jose F. Cunanan"
(Records, pp. 118-122). Hence, they prayed: (1) that the
proceedings in the case be declared null and void; (2) that the
appointment of petitioner as special administratrix be set
aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the
regular administrator of the estate of the deceased
Thereafter, the Cunanan heirs filed a motion requiring
petitioner to submit an inventory or accounting of all monies
received by her in trust for the
estate.chanroblesvirtualawlibrarychanrobles virtual law library
In her opposition, petitioner asserted: (1) that she was the
"sole and only heir" of her daughter, Dr. Evelyn
Perez-Cunanan to the exclusion of the "Cunanan collaterals";
hence they were complete strangers to the proceedings and
were not entitled to notice; (2) that she could not have
"concealed" the name and address of Dr. Rafael G. Cunanan,
Jr. because his name was prominently mentioned not only in
the two wills but also in the decrees of the American surrogate
court; (3) that the rule applicable to the case is Rule 77, not
Rule 76, because it involved the allowance of wills proved
outside of the Philippines and that nowhere in Section 2 of
Rule 77 is there a mention of notice being given to the
executor who, by the same provision, should himself file the
necessary ancillary proceedings in this country; (4) that even if
the Bulacan estate came from the "capital" of Dr. Jose F.
Cunanan, he had willed all his worldly goods to his wife and
nothing to his brothers and sisters; and (5) that Dr. Rafael G.
Cunanan, Jr. had unlawfully disbursed $215,000.00 to the
Cunanan heirs, misappropriated $15,000.00 for himself and
irregularly assigned assets of the estates to his American
lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November
24, 1982, petitioner and the Cunanan heirs had entered into
an agreement in the United States "to settle and divide equally
the estates," and that under Section 2 of Rule 77 the "court
shall fix a time and place for the hearing and cause notice
thereof to be given as in case of an original will presented for
allowance" (Records, pp. 184-185)
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for
contempt of court for failure to comply with the Order of June
23, 1983 and for appropriating money of the estate for his own
benefit. She also alleged that she had impugned the
agreement of November 24, 1982 before the Surrogate Court
of Onondaga, New York which rendered a decision on April 13,
1983, finding that "all assets are payable to Dr. Evelyn P.
Cunanan s executor to
On their part, the Cunanan heirs replied that petitioner was
estopped from claiming that they were heirs by the agreement
to divide equally the estates. They asserted that by virtue of
114
Section 2 of Rule 77 of the Rules of Court, the provisions of
Sections 3, 4 and 5 of Rule 76 on the requirement of notice to
all heirs, executors, devisees and legatees must be complied
with. They reiterated their prayer: (1) that the proceedings in
the case be nullified; (2) that petitioner be disqualified as
special administratrix; (3) that she be ordered to submit an
inventory of all goods, chattels and monies which she had
received and to surrender the same to the court; and (4) that
Dr. Rafael Cunanan, Sr. be appointed the regular
Petitioner filed a rejoinder, stating that in violation of the April
13, 1983 decision of the American court Dr. Rafael G.
Cunanan, Jr. made "unauthorized disbursements from the
estates as early as July 7, 1982" (Records, p. 231). Thereafter,
petitioner moved for the suspension of the proceedings as she
had "to attend to the settlement proceedings" of the estate of
the Cunanan spouses in New York (Records, p. 242). The
Cunanans heirs opposed this motion and filed a manifestation,
stating that petitioner had received $215,000.00 "from the
Surrogate s Court as part of legacy" based on the aforesaid
agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order,
disallowing the reprobate of the two wills, recalling the
appointment of petitioner as special administratrix, requiring
the submission of petitioner of an inventory of the property
received by her as special administratrix and declaring all
pending incidents moot and academic. Judge de la Llana
reasoned out that petitioner failed to prove the law of New York
on procedure and allowance of wills and the court had no way
of telling whether the wills were executed in accordance with
the law of New York. In the absence of such evidence, the
presumption is that the law of succession of the foreign
country is the same as the law of the Philippines. However, he
noted, that there were only two witnesses to the wills of the
Cunanan spouses and the Philippine law requires three
witnesses and that the wills were not signed on each and
every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for
reconsideration of the Order dated February 21, 1984, where
she had sufficiently proven the applicable laws of New York
governing the execution of last wills and testaments.
On the same day, Judge de la Llana issued another order,
denying the motion of petitioner for the suspension of the
proceedings but gave her 15 days upon arrival in the country
within which to act on the other order issued that same day.
Contending that the second portion of the second order left its
finality to the discretion of counsel for petitioner, the Cunanans
filed a motion for the reconsideration of the objectionable
portion of the said order so that it would conform with the
pertinent provisions of the Judiciary Reorganization Act of
1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the
Regional Trial Court, Malolos, to which the reprobate case was
reassigned, issued an order stating that "(W)hen the last will
and testament . . . was denied probate," the case was
terminated and therefore all orders theretofore issued should
be given finality. The same Order amended the February 21,
1984 Order by requiring petitioner to turn over to the estate the
inventoried property. It considered the proceedings for all
intents and purposes, closed (Records,
115
p. 302).
On August 12, petitioner filed a motion to resume proceedings
on account of the final settlement and termination of the
probate cases in New York. Three days later, petitioner filed a
motion praying for the reconsideration of the Order of April 30,
1985 on the strength of the February 21, 1984 Order granting
her a period of 15 days upon arrival in the country within which
to act on the denial of probate of the wills of the Cunanan
spouses. On August 19, respondent Judge granted the motion
and reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her
daughter, Natividad, filed a motion praying that since petitioner
was ailing in Fort Lee, New Jersey, U.S.A. and therefore
incapacitated to act as special administratrix, she (the counsel)
should be named substitute special administratrix. She also
filed a motion for the reconsideration of the Order of February
21, 1984, denying probate to the wills of the Cunanan
spouses, alleging that respondent Judge "failed to appreciate
the significant probative value of the exhibits . . . which all refer
to the offer and admission to probate of the last wills of the
Cunanan spouses including all procedures undertaken and
decrees issued in connection with the said probate" (Records,
pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for
reconsideration of the Order of August 19, 1985, alleging lack
of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was
reassigned denied the motion for reconsideration holding that
the documents submitted by petitioner proved "that the wills of
the testator domiciled abroad were properly executed, genuine
and sufficient to possess real and personal property; that
letters testamentary were issued; and that proceedings were
held on a foreign tribunal and proofs taken by a competent
judge who inquired into all the facts and circumstances and
being satisfied with his findings issued a decree admitting to
probate the wills in question." However, respondent Judge said
that the documents did not establish the law of New York on
the procedure and allowance of wills (Records, p.
381).chanroblesvirtualawlibrarychanrobles virtual law library
On April 9, 1986, petitioner filed a motion to allow her to
present further evidence on the foreign law. After the hearing
of the motion on April 25, 1986, respondent Judge issued an
order wherein he conceded that insufficiency of evidence to
prove the foreign law was not a fatal defect and was curable
by adducing additional evidence. He granted petitioner 45
days to submit the evidence to that effect.
However, without waiting for petitioner to adduce the additional
evidence, respondent Judge ruled in his order dated June 20,
1986 that he found "no compelling reason to disturb its ruling
of March 31, 1986" but allowed petitioner to "file anew the
appropriate probate proceedings for each of the testator"
(Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a
second motion for reconsideration stating that she was "ready
to submit further evidence on the law obtaining in the State of
New York" and praying that she be granted "the opportunity to
116
present evidence on what the law of the State of New York has
on the probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that
to allow the probate of two wills in a single proceeding "would
be a departure from the typical and established mode of
probate where one petition takes care of one will." He pointed
out that even in New York "where the wills in question were
first submitted for probate, they were dealt with in separate
proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the
reconsideration of the Order of July 18, 1986, citing Section 3,
Rule 2 of the Rules of Court, which provides that no party may
institute more than one suit for a single cause of action. She
pointed out that separate proceedings for the wills of the
spouses which contain basically the same provisions as they
even named each other as a beneficiary in their respective
wills, would go against "the grain of inexpensive, just and
speedy determination of the proceedings" (Records, pp.
405-407).
On September 11, 1986, petitioner filed a supplement to the
motion for reconsideration, citing Benigno v. De La Peña, 57
Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had
been filed out of time and that the adverse party had not been
furnished with a copy thereof. In her compliance, petitioner
stated that she had furnished a copy of the motion to the
counsel of the Cunanan heirs and reiterated her motion for a
"final ruling on her supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying
the motion for reconsideration filed by petitioner on the
grounds that "the probate of separate wills of two or more
different persons even if they are husband and wife cannot be
undertaken in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the
evidence offered at the hearing of April 11, 1983 sufficiently
proved the laws of the State of New York on the allowance of
wills, and that the separate wills of the Cunanan spouses need
not be probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she
had submitted before respondent Judge are sufficient to
warrant the allowance of the wills:
two certificates of authentication of the respective wills of
Evelyn and Jose by the Consulate General of the Philippines
(Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York
and Custodian of the Great Seal on the facts that Judge
Bernard L. Reagan is the Surrogate of the Country of
Onondaga which is a court of record, that his signature and
seal of office are genuine, and that the Surrogate is duly
authorized to grant copy of the respective wills of Evelyn and
Jose
(Exhs. "F-1" and "G-1");
117
(c) two certificates of Judge Reagan and Chief Clerk Donald E.
Moore stating that they have in their records and files the said
wills which were recorded on April 7, 1982 (Exhs. "F-2" and
"G-2");chanrobles virtual law library
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6"
and Exh. "G-3" - "G-6");
(e) certificates of Judge Reagan and the Chief Clerk certifying
to the genuineness and authenticity of the exemplified copies
of the two wills (Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the Consulate
General of the Philippines in New York (Exh. "H" and
"F").chanroblesvirtualawlibrarychanrobles virtual law library
(g) certifications from the Secretary of State that Judge
Reagan is duly authorized to grant exemplified copies of the
decree of probate, letters testamentary and all proceedings
had and proofs duly taken
(Exhs. "H-1" and "I-1");chanrobles virtual law library
(h) certificates of Judge Reagan and the Chief Clerk that
letters testamentary were issued to Rafael G. Cunanan (Exhs.
"H-2" and "I-2");chanrobles virtual law library
(i) certification to the effect that it was during the term of Judge
Reagan that a decree admitting the wills to probate had been
issued and appointing Rafael G. Cunanan as alternate
executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills specifying that
proceedings were held and proofs duly taken (Exhs. "H-4" and
"I-5");
(k) decrees on probate of the two wills stating that they were
properly executed, genuine and valid and that the said
instruments were admitted to probate and established as wills
valid to pass real and personal property (Exhs. "H-5" and
"I-5");
(l) certificates of Judge Reagan and the Chief Clerk on the
genuineness and authenticity of each other s signatures in the
exemplified copies of the decrees of probate, letters
testamentary and proceedings held in their court (Exhs. "H-6"
and "I-6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in
the Surrogate Court s Decision of April 13, 1983 and that the
proceedings were terminated on November 29, 1984.
The respective wills of the Cunanan spouses, who were
American citizens, will only be effective in this country upon
compliance with the following provision of the Civil Code of the
Philippines:
Art. 816. The will of an alien who is abroad produces effect in
the Philippines if made with the formalities prescribed by the
law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those
which this Code prescribes.
118
Thus, proof that both wills conform with the formalities
prescribed by New York laws or by Philippine laws is
imperative
The evidence necessary for the reprobate or allowance of wills
which have been probated outside of the Philippines are as
follows: (1) the due execution of the will in accordance with the
foreign laws; (2) the testator has his domicile in the foreign
country and not in the Philippines; (3) the will has been
admitted to probate in such country; (4) the fact that the
foreign tribunal is a probate court, and (5) the laws of a foreign
country on procedure and allowance of wills (III Moran
Commentaries on the Rules of Court, 1970 ed., pp. 419-429;
Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil.
610 [1930]). Except for the first and last requirements, the
petitioner submitted all the needed evidence.
The necessity of presenting evidence on the foreign laws upon
which the probate in the foreign country is based is impelled
by the fact that our courts cannot take judicial notice of them
(Philippine Commercial and Industrial Bank v. Escolin, 56
SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she
moved for more time to submit the pertinent procedural and
substantive New York laws but which request respondent
Judge just glossed over. While the probate of a will is a special
proceeding wherein courts should relax the rules on evidence,
the goal is to receive the best evidence of which the matter is
susceptible before a purported will is probated or denied
probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393
[1978]).
There is merit in petitioner s insistence that the separate wills
of the Cunanan spouses should be probated jointly.
Respondent Judge s view that the Rules on allowance of wills
is couched in singular terms and therefore should be
interpreted to mean that there should be separate probate
proceedings for the wills of the Cunanan spouses is too literal
and simplistic an approach. Such view overlooks the
provisions of Section 2, Rule 1 of the Revised Rules of Court,
which advise that the rules shall be "liberally construed in
order to promote their object and to assist the parties in
obtaining just, speedy, and inexpensive determination of every
action and proceeding."
A literal application of the Rules should be avoided if they
would only result in the delay in the administration of justice
(Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987];
Roberts v. Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills
either for the testator s reciprocal benefit or for the benefit of a
third person (Civil Code of the Philippines, Article 818). In the
case at bench, the Cunanan spouses executed separate wills.
Since the two wills contain essentially the same provisions and
pertain to property which in all probability are conjugal in
nature, practical considerations dictate their joint probate. As
this Court has held a number of times, it will always strive to
settle the entire controversy in a single proceeding leaving no
root or branch to bear the seeds of future litigation (Motoomull
v. Dela Paz, 187 SCRA 743 [1990]).
119
This petition cannot be completely resolved without touching
on a very glaring fact - petitioner has always considered
herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not
consider herself an heir of Dr. Jose F. Cunanan, she noticeably
failed to notify his heirs of the filing of the proceedings. Thus,
even in the instant petition, she only impleaded respondent
Judge, forgetting that a judge whose order is being assailed is
merely a nominal or formal party (Calderon v. Solicitor
General, 215 SCRA 876 [1992]).
WHEREFORE, the questioned Order is SET ASIDE.
Respondent Judge shall allow petitioner reasonable time
within which to submit evidence needed for the joint probate of
the wills of the Cunanan spouses and see to it that the
brothers and sisters of Dr. Jose F. Cunanan are given all
notices and copies of all pleadings pertinent to the probate
proceedings.
SO ORDERED.

The rule that the court having jurisdiction over the reprobate of
a will shall "cause notice thereof to be given as in case of an
original will presented for allowance" (Revised Rules of Court,
Rule 27, Section 2) means that with regard to notices, the will
probated abroad should be treated as if it were an "original
will" or a will that is presented for probate for the first time.
Accordingly, compliance with Sections 3 and 4 of Rule 76,
which require publication and notice by mail or personally to
the "known heirs, legatees, and devisees of the testator
resident in the Philippines" and to the executor, if he is not the
petitioner, are required.

The brothers and sisters of Dr. Jose F. Cunanan, contrary to

petitioner's claim, are entitled to notices of the time and place
for proving the wills. Under Section 4 of Rule 76 of the Revised
Rules of Court, 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, . . . "

120
[G.R. No. 17857. June 12, 1922. ]
In re will of Josefa Zalamea y Abella, deceased. PEDRO
UNSON, Petitioner-Appellee, v. ANTONIO ABELLA ET AL.,
opponents-appellants.
SYLLABUS
1. WILLS; NON-PRODUCTION OF ONE ATTESTING
WITNESS. — Though the general rule is that, if opposition is
presented to the probate of a will, all the attesting witnesses
must be produced; nevertheless, there are exceptions to this
rule, to wit: When one of the witnesses dead, or cannot be
served with process of the court, or his reputation for truth is
questioned, or he appears to be hostile to the cause of the
parties seeking the probate of the will. In such cases the will
may be admitted to probate, if upon the evidence actually
introduced the court is satisfied of the due execution of the will,
inasmuch as even if said witness had been produced and had
testified against the application, the result would not have
been changed, if the court was satisfied upon the evidence
adduced that the will has been executed in the manner
prescribed by the law.
2. ID.; INVENTORY MADE PART OF A WILL; ATTESTATION
CLAUSE. — When in a will reference is made to an inventory
of the properties of the testator, which has thus been made a
part of the will, if the will has an attestation clause that meets
the requirements of the law, no other attestation clause is
necessary for the said inventory, but that of the will be
sufficient for the validity both of the will and the inventory.
3. ID.; PAGING IN ARABIC NUMERALS. — Paging in
inventory with Arabic numerals is in compliance with the spirit
of the law, requiring that the paging of a will be made letters,
and is just as valid as paging with letters A, B, C, etc., under
the circumstances stated in the case of Aldaba v. Roque (43
phil 378).
DECISION
VILLAMOR, J. :
On July 19, 1918, Dona Josefa Zalamea y Abella, single, 60
years old, who was residing in the municipality of Pagsanjan,
Province of Laguna, executed her last will and testament with
an attached inventory of her properties, Exhibits A and A-1, in
the presence of three witnesses, who signed with her all the
pages of said documents. The testatrix died on the 6th of
January, 1921, and, as the record shows, the executor
appointed in the will, Pedro Unson, filed in the Court of First
Instance of Laguna on the 19th of January of the same year
an application for the probate of the will and the issuance of
the proper letters of administration in his favor.
To said application an opposition was presented by Antonio
Abella, Ignacia Abella, Avicencia Abella, and Santiago Vito,
alleging that the supposed will of the deceased Zalamea was
not executed in conformity with the provisions of the law,
inasmuch as it was not paged correlatively in letters; nor was
there any attestation clause in it, nor was it signed by the
testatrix and the witnesses in the presence of each other.
121
Trial having been held, the judge a quo overruled the
opposition of the contestants, and ordered the probate of the
will, Exhibit A, and the inventory, Exhibit A-1, holding that both
documents contained the true and last will of the deceased
Josefa Zalamea.
From the judgment of the court below, the contestants have
appealed, and in their brief they assign three errors, which, in
their opinion, justify the reversal of the judgment appealed
from.
The first error assigned by the appellants as committed by the
court below is its finding to the effect that Exhibit A, said to be
the will of the deceased Josefa Zalamea, was executed with
all the solemnities required by the law.
The arguments advanced by appellants’ counsel in support of
the first assignment of error tend to impeach the credibility of
the witnesses for the proponent, specially that of Eugenio
Zalamea. We have made a carefully examination of the
evidence, but have not found anything that would justify us in
disturbing the finding of the court a quo. The attesting
witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly
testify that together with the other witness to the will, Pedro de
Jesus, they did sign each and every page of the will and of the
inventory in the presence of each other and of the testatrix, as
the latter did likewise sign all the pages of the will and of the
inventory in their presence.
In their brief the appellants intimate that one of the pages of
the will was not signed by the testatrix, nor by the witnesses
on the day of the execution of the will, that is, on the 19th of
July, 1918, basing their contention on the testimony of Aurelio
Palileo, who says that on one occasion Gonzalo Abaya told
him that one of the pages of the will had not been signed by
the witnesses, nor by the testatrix on the day of its execution.
Palileo’s testimony is entirely contradicted by Gonzalo Abaya
not only in the direct, but in the rebuttal, evidence as well. To
our mind, Palileo’s testimony cannot prevail over that of the
attesting witnesses, Gonzalo Abaya and Eugenio Zalamea.
The appellants impeach the credibility of Eugenio Zalamea, for
having made a sworn declaration before the justice of the
peace of Santa Cruz, Laguna, before the trial of this case, to
the effect that he was really one of the witnesses to the will in
question, which fact was corroborated by himself at the trial.
The appellants take Zalamea’s testimony in connection with
the dismissal of a criminal case against a nephew of his, in
whose success he was interested, and infer from this fact the
partiality of his testimony. We deem this allegation of little
importance to impeach the credibility of the witness Zalamea,
especially because his testimony is corroborated by the other
attesting witness, Gonzalo Abaya, and by attorney Luis Abaya,
who had prepared the testament at the instance of the
testatrix. The foregoing is sufficient for us to conclude that the
first assignment of error made by the appellant is groundless.
The appellants contend that the court below erred in admitting
the will to probate notwithstanding the omission of the
proponent to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent stated
to the court that they had necessarily to omit the testimony of
Pedro de Jesus, one of the persons who appear to have
witnessed the execution of the will, for there were reasonable
122
grounds to believe that said witness was openly hostile to the
proponent, inasmuch as since the announcement of the trial of
the petition for the probate of the will, said witness has been in
frequent communication with the contestants and their
attorney, and has refused to hold any conference with the
attorneys for the proponent. In reply to this, the attorney for the
contestants, said to the court, "without discussing for the
present whether or not in view of those facts (the facts
mentioned by the attorneys for the petitioner), in the
hypothesis that the same are proven, they are relieved from
producing that witness, for while it is a matter not decided, it is
a recognized rule that the fact that a witness is hostile does
not justify a party to omit his testimony; without discussing this,
I say, I move that said statement be stricken out, and if the
proponent wants these facts to stand in the record, let him
prove them." The court a quo ruled, saying, "there is no
need."cralaw virtua1aw library
To this ruling of the court, the attorney for the appellants did
not take any exception.
In the case of Avera v. Garcia and Rodriquez (42 Phil., 145),
recently decided by this court, in deciding the question
whether a will can be admitted to probate, where opposition is
made, upon the proof of a single attesting witness, without
producing or accounting for the absence of the other two, it
was said; while it is undoubtedly true that an uncontested will
may be proved by the testimony of only one of the three
attesting witnesses, nevertheless in Cabang v. Delfinado (34
Phil., 291), this court declared after an elaborate examination
of the American and English authorities that when a contest is
instituted, all of the attesting witnesses must be examined, if
alive and within reach of the process of the court.
"In the present case no explanation was made at the trial as to
why all three of the attesting witnesses were not produced, but
the probable reason is found in the fact that, although the
petition for the probate of this will had been pending from
December 21, 1917, until the date set for the hearing, which
was April 5, 1919, no formal contest was entered until the very
day set for the hearing; and it is probable that the attorney for
the proponent, believing in good faith that probate would not
be contested, repaired to the court with only one of the three
attesting witnesses at hand, and upon finding that the will was
contested, incautiously permitted the case to go to proof
without asking for a postponement of the trial in order that he
might produce all the attesting witnesses.
"Although this circumstance may explain why the three
witnesses were not produced, it does not in itself supply any
basis for changing the rule expounded in the case above
referred to; and were it not for a fact now to be mentioned, this
court would probably be compelled to reverse this case on the
ground that the execution of the will had not been proved by a
sufficient number of attesting witnesses.
"It appears, however, that this point was not raised by the
appellant in the lower court either upon the submission of the
cause for determination in that court or upon the occasion of
the filing of the motion for a new trial. Accordingly it is insisted
for the appellee that this question cannot now be raised for the
first time in this court. We believe this point is well taken, and
the first assignment of error must be declared not to be well
123
taken. This exact question has been decided by the Supreme
Court of California adversely to the contention of the appellant,
and we see no reason why the same rule of practice should
not be observed by us.
(Estate of McCarty, 58 Cal., 335, 337.)
"There are at least two reasons why the appellate tribunal are
disinclined to permit certain questions to be raised for the first
time in the second instance. In the first place it eliminates the
judicial criterion of the Court of First Instance upon the point
there presented and makes the appellate court in effect a court
of first instance with reference to that point, unless the case is
remanded for a new trial. In the second place, it permits, if it
does not encourage, attorneys to trifle with the administration
of justice by concealing from the trial court and from their
opponent the actual point upon which reliance is placed, while
they are engaged in other discussions more simulated than
real. These considerations are, we think, decisive.
"In ruling upon the point above presented we do not wish to be
understood as laying down any hard and fast rule that would
prove an embarrassment to this court in the administration of
justice in the future. In one way or another we are constantly
here considering aspects of cases and applying doctrines
which have escaped that attention of all persons concerned in
the litigation below; and this is necessary if this court is to
contribute the part due from it in the correct decision of the
cases brought before it. What we mean to declare is that when
we believe that substantial justice has been done in the Court
of First Instance, and the point relied on for reversal in this
court appears to be one which ought properly to have been
presented in that court, we will in the exercise of a sound
discretion ignore such question upon appeal; and this is the
more proper when the question relates to a defect which might
have been cured in the Court of First Instance if attention had
been called to it there. In the present case, if the appellant had
raised this question in the lower court, either at the hearing or
upon a motion for a new trial, that court would have had the
power, and it would have been its duty, considering the tardy
institution of the contest, to have granted a new trial in order
that all the witnesses to the will might be brought into court.
But in stead of thus calling the error to the attention of the
court and his adversary, the point is first raised by the
appellant in this court. We hold that this is too late.
"Properly understood, the case of Cabang v. Delfinado, supra,
contains nothing inconsistent with the ruling we now make, for
it appears from the opinion in that case that the proponent of
the will had obtained an order for a republication and new trial
for the avowed purpose of presenting the two additional
attesting witnesses who had not been previously examined,
but nevertheless subsequently failed without any apparent
reason to take their testimony. Both parties in that case were
therefore fully apprised that the question of the number of
witnesses necessary to prove the will was in issue in the lower
court."cralaw virtua1aw library
In the case at bar, we do not think this question properly to
have been raised at the trial, but in the memorandum
submitted by the attorney for the appellants to the trial court,
he contended that the will could not be admitted to probate
because one of the witnesses to the will was not produced,
and that the voluntary non-production of this witness raises a
124
presumption against the pretension of the proponent. The trial
court found that the evidence introduced by the proponent,.
consisting of the testimony of the two attesting witnesses and
the other witness who was present at the execution, and had
charge of the preparation of the will and the inventory, Exhibits
A and A-1, was sufficient. As announced in Cabang v.
Delfinado, supra, the general rule is that, where opposition is
made to the probate of a will, the attesting witnesses must be
produced. But there are exceptions to this rule, for instance,
when a witness is dead, or cannot be served with process of
the court, or his reputation for truth has been questioned or he
appears hostile to the cause of the proponent. In such cases,
the will may be admitted to probate without the testimony of
said witness, if, upon the other proofs adduced in the case, the
court is satisfied that the will has been duly executed.
Wherefore, we find that the non-production of the attesting
witness, Pedro de Jesus, as accounted for by the attorney for
the proponent at the trial, does not render void the decree of
the court a quo, allowing the probate.
But supposing that said witness, when cited, had testified
adversely to the application, this would not by itself have
change the result reached by the court a quo, for section 632
of the Code of Civil Procedure provides that a will can be
admitted to probate, notwithstanding that one or more
witnesses do not remember having attested it, provided the
court is satisfied upon the evidence adduced that the will has
been executed and signed in the manner prescribed by the
law.
The last error assigned by the appellants is made to consist in
the probate of the inventory, Exhibit A-1, despite the fact that
this exhibit has no attestation clause in it, and its paging is
made in Arabic numerals and not in letters.
In the third paragraph of the will, reference is made to the
inventory, Exhibit A-1, and at the bottom of said will, the
testatrix Josefa Zalamea says:jgc:chanrobles.com.ph
"In witness whereof, I sign this will composed of ten folios
including the page containing the signatures and the
attestation of the witnesses; I have likewise signed the
inventory attached to this will composed of ten folios in the
presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro
de Jesus, in this municipality of Pagsanjan, Laguna, Philippine
Islands, this 19th of July, 1918."cralaw virtua1aw library
And the attestation clause is as follows:
"The foregoing will composed of ten folios including this one
whereunto we have affixed our signatures, as well as the
inventory of the properties of Dona Josefa Zalamea y Abella,
was read to Dona Josefa Zalamea y Abella, and the latter
affixed her name to name the last, and each and every page of
this will and inventory composed of ten folios in our presence;
and she declared this to be her last will and testament and at
her request we have affixed hereunto our respective
signatures in her presence and in the presence of each other
as witnesses to the will and the inventory this 19th of July,
1918, at Pagsanjan, Laguna, P. I.
"GONZALO ABAYA,
"EUGENIO ZALAMEA,
125
"PEDRO DE JESUS."
In view of the fact that the inventory is referred to in the will as
an integral part of it, we find that the foregoing attestation
clause is in compliance with section 1 of Act No. 2645, which
requires this solemnity for the validity of a will, and makes
unnecessary any other attestation clause at the end of the
inventory.
As to the paging of the will in Arabic numerals, instead of in
letters, we adhere to the doctrine announced in the case of
Aldaba v. Roque (p. 378, ante), recently decided by this court.
In that case the validity of the will was assailed on the ground
that its folios were paged with the letters A, B, C, etc., instead
of with he letters "one," "two," "three," etc. It was held that this
way of numbering the pages of a will is in compliance with the
spirit of the law, inasmuch as either one of these methods
indicates the correlation of the pages and serves to prevent
the abstraction of any of them. In the course of the decision,
we said: "It might be said that the object of the law in requiring
that the paging be made in letters is to make falsification more
difficult, but it should be noted that since all the pages of the
testament are signed 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. And as in the
present case there exists the guaranty of the authenticity of
the testament, consisting in the signatures on the left margins
of the testament and the paging thereof as declared in the
attestation clause, the holding of this court in Abangan v.
Abangan (40 Phil., 476), might as well be
repeated:jgc:chanrobles.com.ph
"‘The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless, and frustrative of the testator’s
last will, must be disregarded.’
"In that case the testament was written on one page, and the
attestation clause on another. Neither one of these pages was
numbered in any way, and it was held: ’In a will consisting of
two sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator and
three witnesses and the second contains only the attestation
clause and is signed also at the bottom by the three witnesses,
it is not necessary that both sheets be further signed on their
margins by the testator and the witnesses, or be paged.’
"This means that, according to the particular case, the
omission of paging does not necessarily render the testament
invalid.
"The law provides that the numbering of the pages should be
in letters placed on the upper part of the sheet, but if the
paging should be placed in the lower part, would the testament
126
be void for this sole reason? We believe not. The law also
provides that the testator and the witnesses must sign the left
margin of each of the sheets of the testament; but if they
should sign on the right margin, would this fact also annul the
testament? Evidently not. This court has already held in Avera
v. Garcia and Rodriguez (42 Phil., 145):jgc:chanrobles.com.ph
"‘It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left
margin of each and every page; and it is undeniable that the
general doctrine is to the effect that all statutory requirements
as to the execution of wills must be fully complied with. The
same doctrine is also deducible from cases heretofore decided
by this court.
"We do not desire to intimate that the numbering in letters is a
requisite of no importance. But since its principal object is to
give the correlation of the pages, we hold that this object may
be attained by writing one, two, three, etc., as well as by
writing A, B, C, etc."cralaw virtua1aw library
We see no reason why the same rule should not be applied
where the paging is in Arabic numerals, instead of in letters, as
in the inventory in question. So that, adhering to the view
taken by this court in the case of Abangan v. Abangan, and
followed in Aldaba v. Roque, with regard to the appreciation of
the solemnities of a will, we find that the judgment appealed
from should be, as is hereby, affirmed with the costs against
the appellant. So ordered..

"‘Still some details at times creep into legislative enactments

which are so trivial that it would be absurd to suppose that the
Legislature could have attached any decisive importance to
them. The provision to the effect that the signatures of the
testator and witnesses shall be written on the left margin of
each page — rather than on the right margin — seems to be of
this character. So far as concerns the authentication of the will,
and of every part thereof, it can make no possible difference
whether the names appear on the left or on the right margin,
provided they are on one or the other. In Caraig v. Tatlonghari
(R. G. No. 12558, decided March 23, 1918, not reported), this
court declared a will void which was totally lacking in the
signatures required to be written on its several pages; and in
the case of Re Estate of Saguinsin (41 Phil., 875), a will was
likewise declared void which contained the necessary
signatures on the margin of each leaf (folio), but not in the
margin of each page containing written matter.’

127
G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E.
CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN,
Heir of the deceased, Executor and Heir-appellees, vs.
HELEN CHRISTENSEN GARCIA, o
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance
of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special
Proceeding No. 622 of said court, dated September 14, 1949,
approving among things the final accounts of the executor,
directing the executor to reimburse Maria Lucy Christensen
the amount of P3,600 paid by her to Helen Christensen Garcia
as her legacy, and declaring Maria Lucy Christensen entitled to
the residue of the property to be enjoyed during her lifetime,
and in case of death without issue, one-half of said residue to
be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator
Edward E. Christensen. The will was executed in Manila on
March 5, 1951 and contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA
LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was
born in the Philippines about twenty-eight years ago, and who
is now residing at No. 665 Rodger Young Village, Los Angeles,
California, U.S.A.
4. I further declare that I now have no living ascendants, and
no descendants except my above named daughter, MARIA
LUCY CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto MARIA HELEN
CHRISTENSEN, now married to Eduardo Garcia, about
eighteen years of age and who, notwithstanding the fact that
she was baptized Christensen, is not in any way related to me,
nor has she been at any time adopted by me, and who, from
all information I have now resides in Egpit, Digos, Davao,
Philippines, the sum of THREE THOUSAND SIX HUNDRED
PESOS (P3,600.00), Philippine Currency the same to be
deposited in trust for the said Maria Helen Christensen with
the Davao Branch of the Philippine National Bank, and paid to
her at the rate of One Hundred Pesos (P100.00), Philippine
Currency per month until the principal thereof as well as any
interest which may have accrued thereon, is exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath, unto my well-beloved
daughter, the said MARIA LUCY CHRISTENSEN DANEY
(Mrs. Bernard Daney), now residing as aforesaid at No. 665
Rodger Young Village, Los Angeles, California, U.S.A., all the
income from the rest, remainder, and residue of my property
and estate, real, personal and/or mixed, of whatsoever kind or
character, and wheresoever situated, of which I may be
possessed at my death and which may have come to me from
any source whatsoever, during her lifetime: ....
128
It is in accordance with the above-quoted provisions that the
executor in his final account and project of partition ratified the
payment of only P3,600 to Helen Christensen Garcia and
proposed that the residue of the estate be transferred to his
daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed
by Helen Christensen Garcia, insofar as it deprives her (Helen)
of her legitime as an acknowledged natural child, she having
been declared by Us in G.R. Nos. L-11483-84 an
acknowledged natural child of the deceased Edward E.
Christensen. The legal grounds of opposition are (a) that the
distribution should be governed by the laws of the Philippines,
and (b) that said order of distribution is contrary thereto insofar
as it denies to Helen Christensen, one of two acknowledged
natural children, one-half of the estate in full ownership. In
amplification of the above grounds it was alleged that the law
that should govern the estate of the deceased Christensen
should not be the internal law of California alone, but the entire
law thereof because several foreign elements are involved,
that the forum is the Philippines and even if the case were
decided in California, Section 946 of the California Civil Code,
which requires that the domicile of the decedent should apply,
should be applicable. It was also alleged that Maria Helen
Christensen having been declared an acknowledged natural
child of the decedent, she is deemed for all purposes
legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a
citizen of the United States and of the State of California at the
time of his death, the successional rights and intrinsic validity
of the provisions in his will are to be governed by the law of
California, in accordance with which a testator has the right to
dispose of his property in the way he desires, because the
right of absolute dominion over his property is sacred and
inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176
P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited
in page 179, Record on Appeal). Oppositor Maria Helen
Christensen, through counsel, filed various motions for
reconsideration, but these were denied. Hence, this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION
OF THE HONORABLE SUPREME COURT THAT HELEN IS
THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING
HER OF HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING
AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF
SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES
CALLING FOR THE APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE
THAT UNDER INTERNATIONAL LAW, PARTICULARLY
UNDER THE RENVOI DOCTRINE, THE INTRINSIC
VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE
129
DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY
THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT
THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE
EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
V returned to his own country, and came back to the Philippines
THE LOWER COURT ERRED IN NOT DECLARING THAT
UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN
GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE
IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen
of the United States and of the State of California at the time of
his death. But there is also no question that at the time of his
death he was domiciled in the Philippines, as witness the
following facts admitted by the executor himself in appellee's
brief:
In the proceedings for admission of the will to probate, the
facts of record show that the deceased Edward E. Christensen
was born on November 29, 1875 in New York City, N.Y.,
U.S.A.; his first arrival in the Philippines, as an appointed
school teacher, was on July 1, 1901, on board the U.S. Army
Transport "Sheridan" with Port of Embarkation as the City of
San Francisco, in the State of California, U.S.A. He stayed in
the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United
States and stayed there for the following nine years until 1913,
during which time he resided in, and was teaching school in
Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of
the year 1913. However, in 1928, he again departed the
Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again
the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing
stipulation of facts be admitted and approved by this
Honorable Court, without prejudice to the parties adducing
other evidence to prove their case not covered by this
stipulation of facts. 1äwphï1.ñët
Being an American citizen, Mr. Christensen was interned by
the Japanese Military Forces in the Philippines during World
War II. Upon liberation, in April 1945, he left for the United
States but returned to the Philippines in December, 1945.
Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622,
as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l",
"MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to
California shortly after the making of his last will and testament
(now in question herein) which he executed at his lawyers'
offices in Manila on March 5, 1951. He died at the St. Luke's
Hospital in the City of Manila on April 30, 1953. (pp. 2-3)
130
In arriving at the conclusion that the domicile of the deceased
is the Philippines, we are persuaded by the fact that he was
born in New York, migrated to California and resided there for
nine years, and since he came to the Philippines in 1913 he
returned to California very rarely and only for short visits
(perhaps to relatives), and considering that he appears never
to have owned or acquired a home or properties in that state,
which would indicate that he would ultimately abandon the
Philippines and make home in the State of California.
Sec. 16. Residence is a term used with many shades of
meaning from mere temporary presence to the most
permanent abode. Generally, however, it is used to denote
something more than mere physical presence. (Goodrich on
Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that
he acquired in California when he resided in Sacramento,
California from 1904 to 1913, was never lost by his stay in the
Philippines, for the latter was a territory of the United States
(not a state) until 1946 and the deceased appears to have
considered himself as a citizen of California by the fact that
when he executed his will in 1951 he declared that he was a
citizen of that State; so that he appears never to have intended
to abandon his California citizenship by acquiring another. This
conclusion is in accordance with the following principle
expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to
mean the same thing, a place of permanent abode. But
domicile, as has been shown, has acquired a technical
meaning. Thus one may be domiciled in a place where he has
never been. And he may reside in a place where he has no
domicile. The man with two homes, between which he divides
his time, certainly resides in each one, while living in it. But if
he went on business which would require his presence for
several weeks or months, he might properly be said to have
sufficient connection with the place to be called a resident. It is
clear, however, that, if he treated his settlement as continuing
only for the particular business in hand, not giving up his
former "home," he could not be a domiciled New Yorker.
Acquisition of a domicile of choice requires the exercise of
intention as well as physical presence. "Residence simply
requires bodily presence of an inhabitant in a given place,
while domicile requires bodily presence in that place and also
an intention to make it one's domicile." Residence, however, is
a term used with many shades of meaning, from the merest
temporary presence to the most permanent abode, and it is
not safe to insist that any one use et the only proper one.
(Goodrich, p. 29)
The law that governs the validity of his testamentary
dispositions is defined in Article 16 of the Civil Code of the
Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject
to the law of the country where it is situated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be
131
the nature of the property and regardless of the country where
said property may be found.
The application of this article in the case at bar requires the
determination of the meaning of the term "national law" is used
therein.
There is no single American law governing the validity of
testamentary provisions in the United States, each state of the
Union having its own private law applicable to its citizens only
and in force only within the state. The "national law" indicated
in Article 16 of the Civil Code above quoted can not, therefore,
possibly mean or apply to any general American law. So it can
refer to no other than the private law of the State of California.
The next question is: What is the law in California governing
the disposition of personal property? The decision of the court
below, sustains the contention of the executor-appellee that
under the California Probate Code, a testator may dispose of
his property by will in the form and manner he desires, citing
the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P.
2d 952. But appellant invokes the provisions of Article 946 of
the Civil Code of California, which is as follows:
If there is no law to the contrary, in the place where personal
property is situated, it is deemed to follow the person of its
owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's
opposition and is not denied. We have checked it in the
California Civil Code and it is there. Appellee, on the other
hand, relies on the case cited in the decision and testified to by
a witness. (Only the case of Kaufman is correctly cited.) It is
argued on executor's behalf that as the deceased Christensen
was a citizen of the State of California, the internal law thereof,
which is that given in the abovecited case, should govern the
determination of the validity of the testamentary provisions of
Christensen's will, such law being in force in the State of
California of which Christensen was a citizen. Appellant, on
the other hand, insists that Article 946 should be applicable,
and in accordance therewith and following the doctrine of the
renvoi, the question of the validity of the testamentary
provision in question should be referred back to the law of the
decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various
authors, thus:
The problem has been stated in this way: "When the Conflict
of Laws rule of the forum refers a jural matter to a foreign law
for decision, is the reference to the purely internal rules of law
of the foreign system; i.e., to the totality of the foreign law
minus its Conflict of Laws rules?"
On logic, the solution is not an easy one. The Michigan court
chose to accept the renvoi, that is, applied the Conflict of Laws
rule of Illinois which referred the matter back to Michigan law.
But once having determined the the Conflict of Laws principle
is the rule looked to, it is difficult to see why the reference back
should not have been to Michigan Conflict of Laws. This would
have resulted in the "endless chain of references" which has
so often been criticized be legal writers. The opponents of the
renvoi would have looked merely to the internal law of Illinois,
thus rejecting the renvoi or the reference back. Yet there
132
seems no compelling logical reason why the original reference
should be the internal law rather than to the Conflict of Laws
rule. It is true that such a solution avoids going on a
merry-go-round, but those who have accepted the renvoi
theory avoid this inextricabilis circulas by getting off at the
second reference and at that point applying internal law.
Perhaps the opponents of the renvoi are a bit more consistent
for they look always to internal law as the rule of reference.
Strangely enough, both the advocates for and the objectors to
the renvoi plead that greater uniformity will result from
adoption of their respective views. And still more strange is the
fact that the only way to achieve uniformity in this
choice-of-law problem is if in the dispute the two states whose
laws form the legal basis of the litigation disagree as to
whether the renvoi should be accepted. If both reject, or both
accept the doctrine, the result of the litigation will vary with the
choice of the forum. In the case stated above, had the
Michigan court rejected the renvoi, judgment would have been
against the woman; if the suit had been brought in the Illinois
courts, and they too rejected the renvoi, judgment would be for
the woman. The same result would happen, though the courts
would switch with respect to which would hold liability, if both
courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances:
where the title to land is in question, and where the validity of a
decree of divorce is challenged. In these cases the Conflict of
Laws rule of the situs of the land, or the domicile of the parties
in the divorce case, is applied by the forum, but any further
reference goes only to the internal law. Thus, a person's title to
land, recognized by the situs, will be recognized by every
court; and every divorce, valid by the domicile of the parties,
will be valid everywhere. (Goodrich, Conflict of Laws, Sec. 7,
pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in
France, leaving movable property in Massachusetts, England,
and France. The question arises as to how this property is to
be distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts court.
There the rule of the conflict of laws as to intestate succession
to movables calls for an application of the law of the
deceased's last domicile. Since by hypothesis X's last domicile
was France, the natural thing for the Massachusetts court to
do would be to turn to French statute of distributions, or
whatever corresponds thereto in French law, and decree a
distribution accordingly. An examination of French law,
however, would show that if a French court were called upon
to determine how this property should be distributed, it would
refer the distribution to the national law of the deceased, thus
applying the Massachusetts statute of distributions. So on the
surface of things the Massachusetts court has open to it
alternative course of action: (a) either to apply the French law
is to intestate succession, or (b) to resolve itself into a French
court and apply the Massachusetts statute of distributions, on
the assumption that this is what a French court would do. If it
accepts the so-called renvoi doctrine, it will follow the latter
course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which
the conflict-of-laws rule of the forum refers to a foreign law, the
conflict-of-laws rule of which, in turn, refers the matter back
133
again to the law of the forum. This is renvoi in the narrower
sense. The German term for this judicial process is
'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp.
523-571.)
After a decision has been arrived at that a foreign law is to be
resorted to as governing a particular case, the further question
may arise: Are the rules as to the conflict of laws contained in
such foreign law also to be resorted to? This is a question
which, while it has been considered by the courts in but a few
instances, has been the subject of frequent discussion by
textwriters and essayists; and the doctrine involved has been
descriptively designated by them as the "Renvoyer" to send
back, or the "Ruchversweisung", or the "Weiterverweisung",
since an affirmative answer to the question postulated and the
operation of the adoption of the foreign law in toto would in
many cases result in returning the main controversy to be
decided according to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been
advanced. The theory of the doctrine of renvoi is that the court
of the forum, in determining the question before it, must take
into account the whole law of the other jurisdiction, but also its
rules as to conflict of laws, and then apply the law to the actual
question which the rules of the other jurisdiction prescribe.
This may be the law of the forum. The doctrine of the renvoi
has generally been repudiated by the American authorities. (2
Am. Jur. 296)
The scope of the theory of renvoi has also been defined and
the reasons for its application in a country explained by Prof.
Lorenzen in an article in the Yale Law Journal, Vol. 27,
1917-1918, pp. 529-531. The pertinent parts of the article are
quoted herein below:
The recognition of the renvoi theory implies that the rules of
the conflict of laws are to be understood as incorporating not
only the ordinary or internal law of the foreign state or country,
but its rules of the conflict of laws as well. According to this
theory 'the law of a country' means the whole of its law.
xxx xxx xxx
Von Bar presented his views at the meeting of the Institute of
International Law, at Neuchatel, in 1900, in the form of the
following theses:
(1) Every court shall observe the law of its country as regards
the application of foreign laws.
(2) Provided that no express provision to the contrary exists,
the court shall respect:
(a) The provisions of a foreign law which disclaims the right to
bind its nationals abroad as regards their personal statute, and
desires that said personal statute shall be determined by the
law of the domicile, or even by the law of the place where the
act in question occurred.
(b) The decision of two or more foreign systems of law,
provided it be certain that one of them is necessarily
competent, which agree in attributing the determination of a
question to the same system of law.
134
xxx xxx xxx
If, for example, the English law directs its judge to distribute
the personal estate of an Englishman who has died domiciled
in Belgium in accordance with the law of his domicile, he must
first inquire whether the law of Belgium would distribute
personal property upon death in accordance with the law of
domicile, and if he finds that the Belgian law would make the
distribution in accordance with the law of nationality — that is
the English law — he must accept this reference back to his
own law.
We note that Article 946 of the California Civil Code is its
conflict of laws rule, while the rule applied in In re Kaufman,
Supra, its internal law. If the law on succession and the conflict
of laws rules of California are to be enforced jointly, each in its
own intended and appropriate sphere, the principle cited In re
Kaufman should apply to citizens living in the State, but Article
946 should apply to such of its citizens as are not domiciled in
California but in other jurisdictions. The rule laid down of
resorting to the law of the domicile in the determination of
matters with foreign element involved is in accord with the
general principle of American law that the domiciliary law
should govern in most matters or rights which follow the
person of the owner.
When a man dies leaving personal property in one or more
states, and leaves a will directing the manner of distribution of
the property, the law of the state where he was domiciled at
the time of his death will be looked to in deciding legal
questions about the will, almost as completely as the law of
situs is consulted in questions about the devise of land. It is
logical that, since the domiciliary rules control devolution of the
personal estate in case of intestate succession, the same rules
should determine the validity of an attempted testamentary
dispostion of the property. Here, also, it is not that the
domiciliary has effect beyond the borders of the domiciliary
state. The rules of the domicile are recognized as controlling
by the Conflict of Laws rules at the situs property, and the
reason for the recognition as in the case of intestate
succession, is the general convenience of the doctrine. The
New York court has said on the point: 'The general principle
that a dispostiton of a personal property, valid at the domicile
of the owner, is valid anywhere, is one of the universal
application. It had its origin in that international comity which
was one of the first fruits of civilization, and it this age, when
business intercourse and the process of accumulating property
take but little notice of boundary lines, the practical wisdom
and justice of the rule is more apparent than ever. (Goodrich,
Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the
Philippines pointed out as the national law is the internal law of
California. But as above explained the laws of California have
prescribed two sets of laws for its citizens, one for residents
therein and another for those domiciled in other jurisdictions.
Reason demands that We should enforce the California
internal law prescribed for its citizens residing therein, and
enforce the conflict of laws rules for the citizens domiciled
abroad. If we must enforce the law of California as in comity
we are bound to go, as so declared in Article 16 of our Civil
Code, then we must enforce the law of California in
accordance with the express mandate thereof and as above
135
explained, i.e., apply the internal law for residents therein, and
its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no
law to the contrary in the place where the property is situated"
in Sec. 946 of the California Civil Code refers to Article 16 of
the Civil Code of the Philippines and that the law to the
contrary in the Philippines is the provision in said Article 16
that the national law of the deceased should govern. This
contention can not be sustained. As explained in the various
authorities cited above the national law mentioned in Article 16
of our Civil Code is the law on conflict of laws in the California
Civil Code, i.e., Article 946, which authorizes the reference or
return of the question to the law of the testator's domicile. The
conflict of laws rule in California, Article 946, Civil Code,
precisely refers back the case, when a decedent is not
domiciled in California, to the law of his domicile, the
Philippines in the case at bar. The court of the domicile can not
and should not refer the case back to California; such action
would leave the issue incapable of determination because the
case will then be like a football, tossed back and forth between
the two states, between the country of which the decedent was
a citizen and the country of his domicile. The Philippine court
must apply its own law as directed in the conflict of laws rule of
the state of the decedent, if the question has to be decided,
especially as the application of the internal law of California
provides no legitime for children while the Philippine law, Arts.
887(4) and 894, Civil Code of the Philippines, makes natural
children legally acknowledged forced heirs of the parent
recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156;
Riera vs. Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil.
867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and
Gibbs vs. Government, 59 Phil. 293.) cited by appellees to
support the decision can not possibly apply in the case at bar,
for two important reasons, i.e., the subject in each case does
not appear to be a citizen of a state in the United States but
with domicile in the Philippines, and it does not appear in each
case that there exists in the state of which the subject is a
citizen, a law similar to or identical with Art. 946 of the
California Civil Code.
We therefore find that as the domicile of the deceased
Christensen, a citizen of California, is the Philippines, the
validity of the provisions of his will depriving his acknowledged
natural child, the appellant, should be governed by the
Philippine Law, the domicile, pursuant to Art. 946 of the Civil
Code of California, not by the internal law of California..
WHEREFORE, the decision appealed from is hereby reversed
and the case returned to the lower court with instructions that
the partition be made as the Philippine law on succession
provides. Judgment reversed, with costs against appellees.
136
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO,
ALDINA MALOTO CASIANO, CONSTANCIO MALOTO,
PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH
OF MOLO, AND ASILO DE MOLO, petitioners,
Vs. COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to
us. In fact, two other cases directly related to the present one
and involving the same parties had already been decided by
us in the past. In G.R. No. L-30479, 1 which was a petition for
certiorari and mandamus instituted by the petitioners herein,
we dismissed the petition ruling that the more appropriate
remedy of the petitioners is a separate proceeding for the
probate of the will in question. Pursuant to the said ruling, the
petitioners commenced in the then Court of First Instance of
Iloilo, Special Proceeding No. 2176, for the probate of the
disputed will, which was opposed by the private respondents
presently, Panfilo and Felino both surnamed Maloto. The trial
court dismissed the petition on April 30, 1970. Complaining
against the dismissal, again, the petitioners came to this Court
on a petition for review by certiorari. 2 Acting on the said
petition, we set aside the trial court's order and directed it to
proceed to hear the case on the merits. The trial court, after
hearing, found the will to have already been revoked by the
testatrix. Adriana Maloto, and thus, denied the petition. The
petitioners appealed the trial court's decision to the
Intermediate Appellate Court which, on June 7, 1985, affirmed
the order. The petitioners' motion for reconsideration of the
adverse decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual
account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her
niece and nephews, the petitioners Aldina Maloto-Casiano and
Constancio, Maloto, and the private respondents Panfilo
Maloto and Felino Maloto. Believing that the deceased did not
leave behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate proceeding for
the settlement of their aunt's estate. The case was instituted in
the then Court of First Instance of Iloilo and was docketed as
Special Proceeding No. 1736. However, while the case was
still in progress, or to be exact on February 1, 1964, the parties
— Aldina, Constancio, Panfilo, and Felino — executed an
agreement of extrajudicial settlement of Adriana's estate. The
agreement provided for the division of the estate into four
equal parts among the parties. The Malotos then presented
the extrajudicial settlement agreement to the trial court for
approval which the court did on March 21, 1964. That should
have signalled the end of the controversy, but, unfortunately, it
had not.
Three years later, or sometime in March 1967, Atty. Sulpicio
Palma, a former associate of Adriana's counsel, the late Atty.
Eliseo Hervas, discovered a document entitled "KATAPUSAN
NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940,
and purporting to be the last will and testament of Adriana.
Atty. Palma claimed to have found the testament, the original
copy, while he was going through some materials inside the
cabinet drawer formerly used by Atty. Hervas. The document
137
was submitted to the office of the clerk of the Court of First
Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo
and Felino are still named as heirs in the said will, Aldina and
Constancio are bequeathed much bigger and more valuable
shares in the estate of Adriana than what they received by
virtue of the agreement of extrajudicial settlement they had
earlier signed. The will likewise gives devises and legacies to
other parties, among them being the petitioners Asilo de Molo,
the Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the
other devisees and legatees named in the will, filed in Special
Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of
the will When the trial court denied their motion, the petitioner
came to us by way of a petition for certiorari and mandamus
assailing the orders of the trial court . 3 As we stated earlier,
we dismissed that petition and advised that a separate
proceeding for the probate of the alleged will would be the
appropriate vehicle to thresh out the matters raised by the
petitioners.
Significantly, the appellate court while finding as inconclusive
the matter on whether or not the document or papers allegedly
burned by the househelp of Adriana, Guadalupe Maloto Vda.
de Coral, upon instructions of the testatrix, was indeed the will,
contradicted itself and found that the will had been revoked.
The respondent court stated that the presence of animus
revocandi in the destruction of the will had, nevertheless, been
sufficiently proven. The appellate court based its finding on the
facts that the document was not in the two safes in Adriana's
residence, by the testatrix going to the residence of Atty.
Hervas to retrieve a copy of the will left in the latter's
possession, and, her seeking the services of Atty. Palma in
order to have a new will drawn up. For reasons shortly to be
explained, we do not view such facts, even considered
collectively, as sufficient bases for the conclusion that Adriana
Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the
testatrix and the due execution of the will. The heart of the
Issue
case lies on the issue as to whether or not the will was
revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can
be found in Article 830.
Art. 830. No will shall be revoked except in the following
cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided
in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with
the intention of revoking it, by the testator himself, or by some
other person in his presence, and by his express direction. If
burned, torn cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still
be established, and the estate distributed in accordance
therewith, if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are
established according to the Rules of Court. (Emphasis
Supplied.)
138
It is clear that the physical act of destruction of a will, like
burning in this case, does not per se constitute an effective
revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that
the physical destruction be done by the testator himself. It may
be performed by another person but under the express
direction and in the presence of the testator. Of course, it goes
without saying that the document destroyed must be the will
itself.
In this case, while animus revocandi or the intention to revoke,
may be conceded, for that is a state of mind, yet that requisite
alone would not suffice. "Animus revocandi is only one of the
necessary elements for the effective revocation of a last will
and testament. The intention to revoke must be accompanied
by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another
person in his presence and under his express direction. There
is paucity of evidence to show compliance with these
requirements. For one, the document or papers burned by
Adriana's maid, Guadalupe, was not satisfactorily established
to be a will at all, much less the will of Adriana Maloto. For
another, the burning was not proven to have been done under
the express direction of Adriana. And then, the burning was
not in her presence. Both witnesses, Guadalupe and Eladio,
were one in stating that they were the only ones present at the
place where the stove (presumably in the kitchen) was located
in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence
presented by the private respondents as oppositors in the trial
court, concluded that the testimony of the two witnesses who
testified in favor of the will's revocation appear "inconclusive."
We share the same view. Nowhere in the records before us
does it appear that the two witnesses, Guadalupe Vda. de
Corral and Eladio Itchon, both illiterates, were unequivocably
positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed
was the will only because, according to her, Adriana told her
so. Eladio, on the other hand, obtained his information that the
burned document was the will because Guadalupe told him so,
thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of
public interest that a purported win is not denied legalization
on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its very foundations
...."4
The private respondents in their bid for the dismissal of the
present action for probate instituted by the petitioners argue
that the same is already barred by res adjudicata. They claim
that this bar was brought about by the petitioners' failure to
appeal timely from the order dated November 16, 1968 of the
trial court in the intestate proceeding (Special Proceeding No.
1736) denying their (petitioners') motion to reopen the case,
and their prayer to annul the previous proceedings therein and
to allow the last will and testament of the late Adriana Maloto.
This is untenable.
The doctrine of res adjudicata finds no application in the
present controversy. For a judgment to be a bar to a
subsequent case, the following requisites must concur: (1) the
presence of a final former judgment; (2) the former judgment
was rendered by a court having jurisdiction over the subject
139
matter and the parties; (3) the former judgment is a judgment substantial bulk of the properties mentioned in the will had
on the merits; and (4) there is, between the first and the been disposed of: while an insignificant portion of the
second action, Identity of parties, of subject matter, and of properties remained at the time of death (of the testatrix); and,
cause of action. 5 We do not find here the presence of all the furthermore, more valuable properties have been acquired
enumerated requisites. after the execution of the will on January 3,1940." 7 Suffice it to
state here that as these additional matters raised by the
For one, there is yet, strictly speaking, no final judgment private respondents are extraneous to this special proceeding,
rendered insofar as the probate of Adriana Maloto's will is they could only be appropriately taken up after the will has
concerned. The decision of the trial court in Special been duly probated and a certificate of its allowance issued.
Proceeding No. 1736, although final, involved only the
intestate settlement of the estate of Adriana. As such, that WHEREFORE, judgment is hereby rendered REVERSING
judgment could not in any manner be construed to be final with and SETTING ASIDE the Decision dated June 7, 1985 and the
respect to the probate of the subsequently discovered will of Resolution dated October 22, 1986, of the respondent Court of
the decedent. Neither is it a judgment on the merits of the Appeals, and a new one ENTERED for the allowance of
action for probate. This is understandably so because the trial Adriana Maloto's last will and testament. Costs against the
court, in the intestate proceeding, was without jurisdiction to private respondents.
rule on the probate of the contested will . 6 After all, an action
for probate, as it implies, is founded on the presence of a will This Decision is IMMEDIATELY EXECUTORY.
and with the objective of proving its due execution and validity,
SO ORDERED.
something which can not be properly done in an intestate
settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is
likewise no Identity between the cause of action in intestate
proceeding and that in an action for probate. Be that as it may,
it would be remembered that it was precisely because of our
ruling in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana Maloto's
will. Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained.

One last note. The private respondents point out that

revocation could be inferred from the fact that "(a) major and

140
G.R. No. L-2538 September 21, 1951
Molo v. Molo
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance
of Rizal admitting to probate the last will and testament of the
deceased Mariano Molo y Legaspi executed on August 17,
1918. The oppositors-appellants brought the case on appeal to
this Court for the reason that the value of the properties
involved exceeds P50,000.
Mariano Molo y 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 y
Legaspi, deceased brother of the testator. Mariano Molo y
Legaspi left two wills, one executed on August 17, 1918,
(Exhibit A) and another executed on June 20, 1939. (Exhibit I).
The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the
Court of First Instance of Rizal a petition, which was docketed
as special proceeding No. 8022 seeking the probate of the will
executed by the deceased on June 20, 1939. There being no
opposition, the will was probated. However, upon petition filed
by the herein oppositors, the order of the court admitting the
will to probate was set aside and the case was reopened. After
hearing, at which both parties presented their evidence, the
court rendered decision denying the probate of said will on the
ground that the petitioner failed to prove that the same was
executed in accordance with law.
In view of the disallowance of the will executed on June 20,
1939, the widow on February 24, 1944, filed another petition
for the probate of the will executed by the deceased on August
17, 1918, which was docketed as special proceeding No. 56,
in the same court. Again, the same oppositors filed an
opposition to the petition based on three grounds: (1) that
petitioner is now estopped from seeking the probate of the will
of 1918; (2) that said will has not been executed in the manner
required by law and (3) that the will has been subsequently
revoked. But before the second petition could be heard, the
battle for liberation came and the records of the case were
destroyed. Consequently, a petition for reconstitution was filed,
but the same was found to be impossible because neither
petitioner nor oppositors could produce the copies required for
its reconstitution. As a result, petitioner filed a new petition on
September 14, 1946, similar to the one destroyed, to which the
oppositors filed an opposition based on the same grounds as
those contained in their former opposition. Then, the case was
set for trial, and on May 28, 1948, the court issued an order
admitting the will to probate already stated in the early part of
this decision. From this order the oppositors appealed
assigning six errors, to wit.
I. The probate court erred in not holding that the present
petitioner voluntarily and deliberately frustrated the probate of
the will dated June 20, 1939, in special proceeding No. 8022,
in order to enable her to obtain the probate of another alleged
will of Molo dated 191.
141
II. The court a quo erred in not holding that the petitioner is
now estopped from seeking the probate of Molo's alleged will
of 1918.
III. The lower court erred in not holding that petitioner herein
has come to court with "unclean hands" and as such is not
entitled to relief.
IV. The probate court erred in not holding that Molo's alleged
will of August 17, 1918 was not executed in the manner
required by law.
V. The probate court erred in not holding that the alleged will of
1918 was deliberately revoked by Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918
was subsequently revoked by the decedent's will of 1939.
In their first assignment of error, counsel for oppositors
contend that the probate court erred in not holding that the
petitioner voluntarily and deliberately frustrated the probate of
the will dated June 20, 1939, in order to enable her to obtain
the probate of the will executed by the deceased on August
17, 1918, pointing out certain facts and circumstances with
their opinion indicate that petitioner connived with the witness
Canuto Perez in an effort to defeat and frustrate the probate of
the 1939 will because of her knowledge that said will
intrinsically defective in that "the one and only testamentory
disposition thereof was a "disposicion captatoria". These
circumstances, counsel for the appellants contend, constitute
a series of steps deliberately taken by petitioner with a view to
insuring the realization of her plan of securing the probate of
the 1918 will which she believed would better safeguard her
right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed
in connection with special proceedings No. 8022, now closed
and terminated, are vigorously met by counsel for petitioner
who contends that to raise them in these proceedings which
are entirely new and distinct and completely independent from
the other is improper and unfair as they find no support
whatsoever in any evidence submitted by the parties in this
case. They are merely based on the presumptions and
conjectures not supported by any proof. For this reason,
counsel, contends, the lower court was justified in disregarding
them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case
seems to justify this contention. There is indeed no evidence
which may justify the insinuation that petitioner had
deliberately intended to frustrate the probate of the 1939 will of
the deceased to enable her to seek the probate of another will
other than a mere conjecture drawn from the apparently
unexpected testimony of Canuto Perez that he went out of the
room to answer an urgent call of nature when Artemio Reyes
was signing the will and the failure of petitioner later to
impeach the character of said witness in spite of the
opportunity given her by the court to do so. Apart from this
insufficiency of evidence, the record discloses that this failure
has been explained by petitioner when she informed the court
that she was unable to impeach the character of her witness
Canuto Perez because of her inability to find witnesses who
may impeach him, and this explanation stands uncontradicted.
Whether this explanation is satisfactory or not, it is not now, for
142
us to determine. It is an incident that comes within the
province of the former case. The failure of petitioner to present
the testimony of Artemio Reyes at the hearing has also been
explained, and it appears that petitioner has filed because his
whereabouts could not be found. Whether this is true or not is
also for this Court to determine. It is likewise within the
province and function of the court in the former case. And the
unfairness of this imputation becomes more glaring when we
stock of the developments that had taken place in these
proceedings which show in bold relief the true nature of the
conduct, behavior and character of the petitioner so bitterly
assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the
will executed on June 20, 1939, was filed on February 7, 1941,
by the petitioner. There being no opposition, the will was
probated. Subsequently, however, upon petition of the herein
oppositors, the order of the court admitting said will to probate
was set aside, over the vigorous opposition of the herein
petitioner, and the case was reopened. The reopening was
ordered because of the strong opposition of the oppositors
who contended that he will had not been executed as required
by law. After the evidence of both parties had been presented,
the oppositors filed an extensive memorandum wherein they
reiterated their view that the will should be denied probate.
And on the strenght of this opposition, the court disallowed the
will.
If petitioner then knew that the 1939 will was inherently
defective and would make the testamentary disposition in her
favor invalid and ineffective, because it is a "disposicion
captatoria", which knowledge she may easily acquire through
consultation with a lawyer, there was no need her to go
through the order of filing the petition for the probate of the will.
She could accomplish her desire by merely suppressing the
will or tearing or destroying it, and then take steps leading to
the probate of the will executed in 1918. But for her
conscience was clear and bade her to take the only proper
step possible under the circumstances, which is to institute the
necessary proceedings for the probate of the 1939 will. This
she did and the will was admitted to probate. But then the
unexpected happened. Over her vigorous opposition, the
herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was
reopened. Her motion for reconsideration was denied. Is it her
fault that the case was reopened? Is it her fault that the order
admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants
not filed their opposition to the probate of the will and had they
limited their objection to the intrinsic validity of said will, their
plan to defeat the will and secure the intestacy of the
deceased would have perhaps been accomplished. But they
failed in their strategy. If said will was denied probate it is due
to their own effort. It is now unfair to impute bad faith petitioner
simply because she exerted every effort to protect her own
interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that
the court did not commit the second and third errors imputed
to it by the counsel for appellants. Indeed, petitioner cannot be
considered guilty or estoppel which would prevent her from
seeking the probate of the 1918 will simply because of her
effort to obtain the allowance of the 1939 will has failed
considering that in both the 1918 and 1939 wills she was in by
143
her husband as his universal heir. Nor can she be charged
with bad faith far having done so because of her desire to
prevent the intestacy of her husband. She cannot be blamed
being zealous in protecting her interest.
Issue
The next contention of appellants refers to the revocatory
clause contained in 1939 will of the deceased which was
denied probate. They contend that, notwithstanding the
disallowance of said will, the revocatory clause is valid and still
has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the
doctrine laid down in the case of Samson vs. Naval, (41 Phil.,
838). He contends that the facts involved in that case are on
all fours with the facts of this case. Hence, the doctrine is that
case is here controlling.
There is merit in this contention. We have carefully read the
facts involved in the Samson case we are indeed impressed
by their striking similarity with the facts of this case. We do not
need to recite here what those facts are; it is enough to point
out that they contain many points and circumstances in
common. No reason, therefore, is seen by the doctrine laid
down in that case (which we quote hereunder) should not
apply and control the present case.
A subsequent will, containing a clause revoking a previous will,
having been disallowed, for the reason that it was not
executed in conformity with the provisions of section 618 of the
Code of Civil Procedure as to the making of wills, cannot
produce the effect of annulling the previous will, inasmuch as
said revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the
remark that, while they do not disagree with the soundness of
the ruling laid down in the Samson case, there is reason to
abandon said ruling because it is archaic or antiquated and
runs counter to the modern trend prevailing in American
jurisprudence. They maintain that said ruling is no longer
controlling but merely represents the point of view of the
minority and should, therefore, be abandoned, more so if we
consider the fact that section 623 of our Code of Civil
Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing trend
of the majority view in the United States. A long line of
authorities is cited in support of this contention. And these
authorities hold the view, that "an express revocation is
immediately effective upon the execution of the subsequent
will, and does not require that it first undergo the formality of a
probate proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained
by counsel for oppositors, and that view appears to be in
controlling the states where the decisions had been
promulgated, however, we are reluctant to fall in line with the
assertion that is now the prevailing view in the United States.
In the search we have made of American authorities on the
subject, we found ourselves in a pool of conflicting opinions
perhaps because of the peculiar provisions contained in the
statutes adopted by each State in the subject of revocation of
wills. But the impression we gathered from a review and the
study of the pertinent authorities is that the doctrine laid down
in the Samson case is still a good law. On page 328 of the
American Jurisprudence Vol. 57, which is a revision Published
in 1948, we found the following passages which in our opinion
144
truly reflect the present trend of American jurisprudence on
this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of
Instrument. — Ordinarily, statutes which permit the revocation
of a will by another writing provide that to be effective as a
revocation, the writing must be executed with the same
formalities which are required to be observed in the execution
of a will. Accordingly, where, under the statutes, attestation is
necessary to the making of a valid will, an unattested non
testamentary writing is not effective to revoke a prior will. It has
been held that a writing fails as a revoking instrument where it
is not executed with the formalities requisite for the execution
of a will, even though it is inscribed on the will itself, although it
may effect a revocation by cancellation or obliteration of the
words of the will. A testator cannot reserve to himself the
power to modify a will by a written instrument subsequently
prepared but not executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will
or Codicil. — A will which is invalid because of the incapacity
of the testator, or of undue influence can have no effect
whatever as a revoking will. Moreover, a will is not revoked by
the unexecuted draft of a later one. Nor is a will revoked by a
defectively executed will or codicil, even though the latter
contains a clause expressly revoking the former will, in a
jurisdiction where it is provided by a controlling statute that no
writing other than a testamentary instrument is sufficient to
revoke a will, for the simple reason that there is no revoking
will. Similarly where the statute provides that a will may be
revoked by a subsequent will or other writing executed with the
same formalities as are required in the execution of wills, a
defectively executed will does not revoke a prior will, since it
cannot be said that there is a writing which complies with the
statute. Moreover, a will or codicil which, on account of the
manner in which it is executed, is sufficient to pass only
personally does not affect dispositions of real estate made by
a former will, even though it may expressly purport to do so.
The intent of the testator to revoke is immaterial, if he has not
complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports,
Annotated, edited in 1939. On page 1400, Volume 123, there
appear many authorities on the "application of rules where
second will is invalid", among which a typical one is the
following:
It is universally agreed that where the second will is invalid on
account of not being executed in accordance with the
provisions of the statute, or where the testator who has not
sufficient mental capacity to make a will or the will is procured
through undue influence, or the such, in other words, where
the second will is really no will, it does not revoke the first will
or affect it in any manner. Mort vs. Baker University (193-5)
229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on
which the ruling in the Samson case is predicated. They reflect
the opinion that this ruling is sound and good and for this
reason, we see no justification for abondoning it as now
suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil
Procedure) provides that a will may be some will, codicil, or
other writing executed as proved in case of wills" but it cannot
145
be said that the 1939 will should be regarded, not as a will
within the meaning of said word, but as "other writing executed
as provided in the case of wills", simply because it was denied
probate. And even if it be regarded as any other writing within
the meaning of said clause, there is authority for holding that
unless said writing is admitted to probate, it cannot have the
effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said
revocatory clause, said will of 1918 cannot still be given effect
because of the presumption that it was deliberately revoked by
the testator himself. The oppositors contend that the testator,
after executing the 1939 will, and with full knowledge of the
recovatory clause contained said will, himself deliberately
destroyed the original of the 1918 will, and for that reason the
will submitted by petitioner for probate in these proceedings is
only a duplicate of said original.
There is no evidence which may directly indicate that the
testator deliberately destroyed the original of the 1918 will
because of his knowledge of the revocatory clause contained
in the will he executed in 1939. The only evidence we have is
that when the first will was executed in 1918, Juan Salcedo,
who prepared it, gave the original and copies to the testator
himself and apparently they remained in his possession until
he executed his second will in 1939. And when the 1939 will
was denied probate on November 29, 1943, and petitioner
was asked by her attorney to look for another will, she found
the duplicate copy (Exhibit A) among the papers or files of the
testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the
1918 will because of his knowledge of the revocatory clause of
the 1939 will, and it is true that he gave a duplicate copy
thereof to his wife, the herein petitioner, the most logical step
for the testator to take is to recall said duplicate copy in order
that it may likewise be destroyed. But this was not done as
shown by the fact that said duplicate copy remained in the
possession of petitioner. It is possible that because of the long
lapse of twenty-one (21) years since the first will was
executed, the original of the will had been misplaced or lost,
and forgetting that there was a copy, the testator deemed it
wise to execute another will containing exactly the same
testamentary dispositions. Whatever may be the conclusion
we may draw from this chain of circumstances, the stubborn
fact is that there is no direct evidence of voluntary or deliberate
destruction of the first will by the testator. This matter cannot
be inference or conjectur.
Granting for the sake of argument that the earlier will was
voluntarily destroyed by the testator after the execution of the
second will, which revoked the first, could there be any doubt,
under this theory, that said earlier will was destroyed by the
testator in the honest belief that it was no longer necessary
because he had expressly revoked it in his will of 1939? In
other words, can we not say that the destruction of the earlier
will was but the necessary consequence of the testator's belief
that the revocatory clause contained in the subsequent will
was valid and the latter would be given effect? If such is the
case, then it is our opinion that the earlier will can still be
admitted to probate under the principle of "dependent relative
revocation".
This doctrine is known as that of dependent relative
revocation, and is usually applied where the testator cancels
146
or destroys a will or executes an instrument intended to revoke
a will with a present intention to make a new testamentary
disposition as a substitute for the old, and the new disposition
is not made or, if made, fails of effect for same reason. The
doctrine is n 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. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is
connected with the making of another will so as fairly to raise
the inference that the testator meant the revocation of the old
to depend upon the efficacy of a new disposition intended to
be substituted, the revocation will be conditional and
dependent upon the efficacy of the new disposition; and if, for
any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains in
full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The
failure of a new testamentary disposition upon whose validity
the revocation depends, is equivalent to the non-fulfillment of a
suspensive conditions, 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. (1 Alexander, p. 751;
Gardner, p. 253.)
We hold therefore, 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 occasion and instituted his
wife as his universal heir. There can therefore be no mistake
as to his intention of dying testate.
The remaining question to be determined refers to the
sufficiency of the evidence to prove the due execution of the
will.
The will in question was attested, as required by law, by three
witnesses, Lorenzo Morales, Rufino Enriquez, and Angel
Cuenca. The first two witnesses died before the
commencement of the present proceedings. So the only
instrumental witness available was Angel Cuenca and under
our law and precedents, his testimony is sufficient to prove the
due execution of the will. However, petitioner presented not
only the testimony of Cuenca but placed on the witness stand
Juan Salcedo, the notary public who prepared and notarized
the will upon the express desire and instruction of the testator,
The testimony of these witnesses shows that the will had been
executed in the manner required by law. We have read their
testimony and we were impressed by their readiness and
sincerity. We are convinced that they told the truth. Wherefore,
the order appealed from is hereby affirmed, with costs against
the appellants.1âwphïl.nêt
147
G.R. No. L-35993 December 19, 1932
In re Estate of the deceased Gregorio Tolentino.
ADELAIDA TOLENTINO, vs. NATALIA FRANCISCO, ET AL.,
STREET, J.:
This petition was filed in the Court of First Instance of Manila
by Adelaida Tolentino de Concepcion, for the purpose of
procuring probate of the will of Gregorio Tolentino, deceased,
who died at the hand of an assassin, in his home, No. 2541
Lico Street, in the District of Santa Cruz, Manila, on November
9, 1930. In the inception of the proceedings Eugene de
Mitkiewicz was appointed special coadministrator, and he
joined as coplaintiff in the petition. Opposition was made to the
probate of the will by Ciriaco Francisco, Natalia Francisco, and
Gervasia Francisco, all cousins of the deceased and residents
of the City of Manila. Upon hearing the cause the trial court
overruled the opposition, declared the will to have been
properly executed, and allowed the probate thereof. From this
order the three opponents appealed.
At the time of his death on November 9, 1930, Gregorio
Tolentino was sixty-six years of age. During the more vigorous
years of his life he had been married to Benita Francisco, but
she predeceased him years ago. By their industry and frugality
the two had accumulated a very considerable estate which
does not appear to have suffered any material diminution in
the years of Tolentino's widowhood. The pair had no children,
and the generous instincts of the survivor prompted him to
gather around him in his comfortable and commodious home a
number of his wife's kin; and by him various younger members
of the connection were supported and educated. At one time
Tolentino contemplated leaving his property mainly to these kin
of his wife, of the surname Francisco; and for several years
prior to his death, he had kept a will indicating this desire.
However, in October, 1930, strained relations, resulting from
grave disagreements, developed between Tolentino and the
Francisco relations and he determined to make a new will in
which, apart from certain legacies in favor of a few individuals,
the bulk of his estate, worth probably about P150,000, should
be given to Adelaida Tolentino de Concepcion, as his universal
heir.
To this end, on October 17, 1930, Tolentino went to the office
of Eduardo Gutierrez Repide, an attorney at 97 General Luna,
Manila, and informed him that he wanted to make a new will
and desired Repide to draft it for him. After the necessary
preliminary inquiries had been made, the attorney suggested
to Tolentino to return later, bringing a copy of the will
previously made. Accordingly, on the second day thereafter,
Tolentino again appeared in Repide's office with the prior will;
and the attorney proceeded to reduce the new will to proper
form. As the instrument was taking shape Tolentino stated that
he wanted the will to be signed in Repide's office, with Repide
himself as one of the attesting witnesses. For the other two
witnesses Tolentino requested that two attorneys attached to
the office, namely, Leoncio B. Monzon and Ramon L. Sunico,
should serve. For this reason, in the draft of the will, as it at
first stood, the names of the three above mentioned were
inserted as the names of the three attesting witnesses.
When the instrument had been reduced to proper form it was
placed in the hands of Tolentino, the testator, in order that he
might take it home to reflect over its provisions and consider
148
whether it conformed in all respects to his wishes. On the
morning of October 21 he again appeared in Repide's office
and returned to him the draft of the will with certain
corrections. Among the changes thus made was the
suppression of the names of Monzon, Sunico, and Repide as
attesting witnesses, these names being substituted by the
names of Jose Syyap, Agustin Vergel de Dios, and Vicente
Legarda. The explanation given by the testator for desiring this
change was that he had met Jose Syyap on the Escolta, the
day before, and had committed the indiscretion of
communicating the fact that he (Tolentino) was having a new
will made in which Monzon, Sunico, and Repide would appear
as the attesting witnesses. Now Syyap had been the
draftsman of the former will of Tolentino, and in this same will
the name of Syyap appeared as one of the attesting
witnesses, the other two being Vicente Legarda and Vergel de
Dios. When, therefore, Syyap learned that a new will was
being drawn up without his intervention, he showed profound
disappointment, saying to Tolentino that he considered it a
gross offense that he, Legarda, and Vergel de Dios should be
eliminated as witnesses to the new will. Upon this
manifestation of feeling by Syyap, Tolentino decided to avail
himself of Syyap, Legarda, and Vergel de Dios as witnesses to
this will also, and he therefore requested Repide to change the
names of the attesting witnesses. After this point had been
settled Tolentino stated that he would request Syyap, Legarda,
and Vergel de Dios to appear at the office of Repide for the
purpose of signing the will. To this end Tolentino went away
but returned later saying that he had spoken to Syyap about it
and that the latter strenuously objected, observing that the will
should be signed at a chop-suey restaurant ( panciteria).
Tolentino further stated to his attorney in this conversation that
he had arranged with Syyap and the other two intending
witnesses to meet at five o'clock in the afternoon of the next
day, which was October 22, for the purpose of executing the
will.
Pursuant to these instructions Repide made the desired
changes in the will; and just before twelve o'clock noon of the
next day Tolentino returned to Repide's office and received
from him the criminal document with a carbon copy thereof.
Repide advised the testator that the copy should be executed
with the same formality as the original in order that the
intention of the testator should not be frustrated by the
possible loss or destruction of the original.lawphil.net
It is a custom in the office of Repide not to number the
consecutive pages of a will, on the typewriting machine, the
duty of numbering the pages being left to the testator himself.
This precaution appears to have been born of experience, and
has been adopted by Repide to prevent the possible
destruction of a will by the mere erasure of the figures or
letters indicating the pagination, — a disaster which, in
Repide's experience, had occurred in at least one case.
Accordingly, upon delivering the completed will and carbon
copy to the testator, Repide took particular pains to instruct the
testator to write the consecutive paging of both original and
duplicate before signing the instrument.
At his interview the testator suggested to Repide that the latter
should also go to the place where the will was to be executed,
so that he might be present at the formality. The attorney
replied that it was impossible for him to do so as he had
another engagement for the hour indicated, which would
prevent his attendance.
149
At about 4:30 p. m. on the same day, which was October 22,
Tolentino started in his car to pick up Syyap and Vergel de
Dios at their respective homes on Antipolo and Benavides
streets. He then caused his chauffeur to drive with the three to
La Previsora Filipina, on Rizal Avenue, where Vicente
Legarda, the third intending witness was to be found. Arriving
at this place, the three entered the office of Legarda, who was
manager of the establishment, and they were invited to take
seats, which they did. Tolentino then suggested that the three
should go as his guests to a panciteria, where they could take
refreshments and the will could be executed. Legarda replied
that he must decline the invitation for he had an engagement
to go to the Cosmos Club the same afternoon. Upon this
Tolentino asked Legarda to permit the will to be signed in his
office, and to this request Legarda acceded.
Tolentino thereupon drew two documents from his pocket
saving that it was his last will and testament, done in duplicate,
and he proceeded to read the original to the witnesses. After
this had been completed, Legarda himself took the will in hand
and read it himself. He then returned it to Tolentino, who
thereupon proceeded, with pen and ink, to number the pages
of the will thus, "Pagina Primera", "Pagina Segunda", etc. He
then paged the duplicate copy of the will in the same way. He
next proceeded to sign the original will and each of its pages
by writing his name "G. Tolentino" in the proper places.
Following this, each of the three witnesses signed their own
respective names at the end of the will, at the end of the
attesting clause, and in the left margin of each page of the
instrument. During this ceremony all of the persons concerned
in the act of attestation were present together, and all fully
advertent to the solemnity that engaged their attention.
After the original of the will had been executed in the manner
just stated, the testator expressed his desire that the duplicate
should be executed in the same manner. To this Syyap
objected, on the ground that it was unnecessary; and in this
view he was supported by Vergel de Dios, with the result that
the wishes of the testator on this point could not be carried out.
As the party was about to break up Tolentino used these
words: "For God's sake, as a favor, I request you not to let any
one know the contents of this will." The meeting then broke up
and Tolentino returned Syyap and Vergel de Dios to their
homes in his car. He then proceeded to the law office of
Repide, arriving about 6:15 p. m. After preliminary
explanations had been made, Tolentino requested Repide to
keep the will overnight in his safe, as it was already too late to
place it in the compartment which Tolentino was then renting in
the Oriental Safe Deposit, in the Kneedler Building. In this
connection the testator stated that he did not wish to take the
will to his home, as he knew that his relatives were watching
him and would take advantage of any carelessness on his part
to pry into his papers. Also, in this conversation Tolentino
informed Repide of the refusal of Syyap to execute the
duplicate of the will.
After a good part of an hour had thus been spent at Repide's
office by the testator and after the original of the will had been
deposited in Repide's safe, Tolentino took the attorney to the
latter's residence in Ermita, and then returned to his own
home, where he remained without again going out that night.
But promptly at nine o'clock the next morning Tolentino
presented himself at Repide's office for the purpose of
securing the will. Repide happened to be out and Tolentino
went away, but again returned the next day and received the
150
will. With the instrument thus in his possession he proceeded
at once to the Oriental Safe Deposit and there left the
instrument in his private compartment, No. 333, in which place
it remained until withdrawn some two weeks later by order of
the court.
On the morning of November 9, 1930, Gregorio Tolentino was
found dead in his bed, having perished by the hands of an
assassin.
The peculiarity of this case is that, upon the trial of this
proceeding for the probate of the will of the decedent, two of
the attesting witnesses, Jose Syyap and Vergel de Dios,
repudiated their participation in the execution of the will at the
time and place stated; and while admitting the genuineness of
their signatures to the will, pretended that they had severally
signed the instrument, at the request of the testator, at different
places. Thus Syyap, testifying as a witness, claimed that the
testator brought the will to Syyap's house on the afternoon of
October 21 — a time, be it remembered, when the will had not
yet left the hands of the draftsman — and upon learning that
Syyap could not be present at the time and place then being
arranged for the execution of the will, he requested Syyap, as
a mere matter of complaisance, to sign the will then, which
Syyap did. Vergel de Dios has another story to tell of isolated
action, claiming that he signed the will in the evening of
October 22 at the Hospital of San Juan de Dios in Intramuros.
We are unable to give any credence to the testimony of these
two witnesses on this point, the same being an evident
fabrication designed for the purpose of defeating the will. In
the first place, the affirmative proof showing that the will was
properly executed is adequate, consistent, and convincing,
consisting of the testimony of the third attesting witness,
Vicente Legarda, corroborated by Miguel Legarda and Urbana
Rivera, two disinterested individuals, employees of La
Previsora Filipina, who were present in Legarda's office when
the will was executed and who lent a discerning attention to
what was being done. In the second place, each of the seven
signatures affixed to his will by Syyap appear to the natural
eye to have been made by using the same pen and ink that
was used by Legarda in signing the will. The same is also
probably true of the seven signatures made by Vergel de Dios.
This could hardly have happened if the signatures of Syyap
and Vergel de Dios had been affixed, as they now pretend, at
different times and places. In the third place, Both Syyap and
Vergel de Dios are impeached by proof of contradictory
statements made by them on different occasions prior to their
appearance as witnesses in this case. In this connection we
note that, after the murder of Gregorio Tolentino, and while the
police authorities were investigating his death, Nemesio
Alferez, a detective, sent for Syyap and questioned him
concerning his relations with the deceased. Upon this
occasion Syyap stated that Gregorio Tolentino had lately made
a will, that it had been executed at the office of La Previsora
Filipina under the circumstances already stated, and that he
himself had served as one of the attesting witnesses.
With respect to Vergel de Dios we have the following fact: On
the day that Gregorio Tolentino was buried, Ramon Llorente, a
member of the city police force, was sent out to the cemetery
in order that he might be present and observe the demeanor
on that occasion of such Tolentino's kin as might be present.
Llorente arrived before the funeral cortege, having been taken
out to the cemetery by Repide. While the two were waiting at
151
the cemetery, Llorente noted the presence of Vergel de Dios, It is sufficient if the court is satisfied from all the proof that the
he requested the policeman to introduce him. In the will was executed and attested in the manner required by law.
conversation that ensued Vergel de Dios stated with In this case we feel well assured that the contested will was
considerable detail that Gregorio Tolentino had made a will just properly executed and the order admitting to it probate was
before his death, that it was executed at La Previsora Filipina, entirely proper.
and that he was one of the witnesses who attested the
instrument at that time and place. The order appealed from will therefore be affirmed, with costs
against the appellants. So ordered.
Again, on a certain occasion subsequent to the death of
Gregorio Tolentino, Juan Concepcion the husband of Adelaida
Tolentino, accompanied by Genoveva de Mendoza, called
upon Vergel de Dios, and in the conversation that resulted
Vergel de Dios told them that the will was properly executed,
that he was one of the attesting witnesses, and that it had
been signed by all of them in the office of La Previsora Filipina.

These circumstances and other incidents revealed in the proof

leave no room for doubt in our mind that Syyap and Vergel de
Dios have entered into a conspiracy between themselves, and
in concert with the opponents, to defeat the will of Gregorio
Tolentino although they are well aware that said will was in all
respects properly executed; and the trial court, in our opinion,
committed no error in admitting the will to probate.

When a will is contested it is the duty of the proponent to call

all of the attesting witnesses, if available but the validity of the
will in no wise depends upon the united support of the will by
all of those witnesses. A will may be admitted to probate
notwithstanding the fact that one or more of the subscribing
witnesses do not unite with the other, or others, in proving all
the facts upon which the validity of the will rests. (Fernandez
vs. Tantoco, 49 Phil., 380.)

152
G.R. No. 45629 September 22, 1938
ANTILANO G. MERCADO, Vs. ALFONSO SANTOS, Judge
of First Instance of Pampanga,
LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of
First Instance of Pampanga a petition for the probate of the will
of his deceased wife, Ines Basa. Without any opposition, and
upon the testimony of Benigno F. Gabino, one of the attesting
witnesses, the probate court, on June 27,1931, admitted the
will to probate. Almost three years later, on April 11, 1934, the
five intervenors herein moved ex parte to reopen the
proceedings, alleging lack of jurisdiction of the court to probate
the will and to close the proceedings. Because filed ex parte,
the motion was denied. The same motion was filed a second
time, but with notice to the adverse party. The motion was
nevertheless denied by the probate court on May 24, 1934. On
appeal to this court, the order of denial was affirmed on July
26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after
the probate of the will of Ines Basa, intervenor Rosario Basa
de Leon filed with the justice of the peace court of San
Fernando, Pampanga, a complaint against the petitioner
herein, for falsification or forgery of the will probated as above
indicated. The petitioner was arrested. He put up a bond in the
sum of P4,000 and engaged the services of an attorney to
undertake his defense. Preliminary investigation of the case
was continued twice upon petition of the complainant. The
complaint was finally dismissed, at the instance of the
complainant herself, in an order dated December 8, 1932.
Three months later, or on March 2, 1933, the same intervenor
charged the petitioner for the second time with the same
offense, presenting the complaint this time in the justice of the
peace court of Mexico, Pampanga. The petitioner was again
arrested, again put up a bond in the sum of P4,000, and
engaged the services of counsel to defend him. This second
complaint, after investigation, was also dismissed, again at the
instance of the complainant herself who alleged that the
petitioner was in poor health. That was on April 27, 1933.
Some nine months later, on February 2, 1934, to be exact, the
same intervenor accused the same petitioner for the third time
of the same offense. The information was filed by the
provincial fiscal of Pampanga in the justice of the peace court
of Mexico. The petitioner was again arrested, again put up a
bond of P4,000, and engaged the services of defense counsel.
The case was dismissed on April 24, 1934, after due
investigation, on the ground that the will alleged to have been
falsified had already been probated and there was no
evidence that the petitioner had forged the signature of the
testatrix appearing thereon, but that, on the contrary, the
evidence satisfactorily established the authenticity of the
signature aforesaid. Dissatisfied with the result, the provincial
fiscal, on May 9, 1934, moved in the Court of First Instance of
Pampanga for reinvestigation of the case.
The motion was granted on May 23, 1934, and, for the fourth
time, the petitioner was arrested, filed a bond and engaged the
services of counsel to handle his defense. The reinvestigation
dragged on for almost a year until February 18, 1934, when
the Court of First Instance ordered that the case be tried on
the merits. The petitioner interposed a demurrer on November
153
25, 1935, on the ground that the will alleged to have been
forged had already been probated. This demurrer was
overruled on December 24, 1935, whereupon an exception
was taken and a motion for reconsideration and notice of
appeal were filed. The motion for reconsideration and the
proposed appeal were denied on January 14, 1936. The case
proceeded to trial, and forthwith petitioner moved to dismiss
the case claiming again that the will alleged to have been
forged had already been probated and, further, that the order
probating the will is conclusive as to the authenticity and due
execution thereof. The motion was overruled and the petitioner
filed with the Court of Appeals a petition for certiorari with
preliminary injunction to enjoin the trial court from further
proceedings in the matter. The injunction was issued and
thereafter, on June 19, 1937, the Court of Appeals denied the
petition for certiorari, and dissolved the writ of preliminary
injunction. Three justices dissented in a separate opinion. The
case is now before this court for review on certiorari.
Issue
Petitioner contends (1) that the probate of the will of his
deceased wife is a bar to his criminal prosecution for the
alleged forgery of the said will; and, (2) that he has been
denied the constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to
the effect of judgments.
SEC. 306. Effect of judgment. — The effect of a judgment or
final order in an action or special proceeding before a court or
judge of the Philippine Islands or of the United States, or of
any State or Territory of the United States, having jurisdiction
to pronounce the judgment or order, may be as follows.
1. In case of a judgment or order against a specific thing, or in
respect to the probate of a will, or the administration of the
estate of a deceased person, or in respect to the personal,
political, or legal condition or relation of a particular person, the
judgment or order is conclusive upon the title of the thing, the
will or administration, or the condition or relation of the person
Provided, That the probate of a will or granting of letters of
administration shall only be prima facie evidence of the death
of the testator or intestate.
xxx xxx xxx
(Emphasis ours.)
Section 625 of the same Code is more explicit as to the
conclusiveness of the due execution of a probate will. It says.
SEC. 625. Allowance Necessary, and Conclusive as to
Execution. — No will shall pass either the real or personal
estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the
allowance by the court of a will of real and personal estate
shall be conclusive as to its due execution. (Emphasis ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:
. . . The decree of probate is conclusive with respect to the due
execution thereof and it cannot be impugned on any of the
grounds authorized by law, except that of fraud, in any
separate or independent action or proceeding. Sec. 625, Code
of Civil Procedure; Castañeda vs. Alemany, 3 Phil., 426;
Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza,
7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montañano vs.
154
Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156;
Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21
Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong
Jocsoy vs. Vano, 8 Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.
The probate of a will by the probate court having jurisdiction
thereof is usually considered as conclusive as to its due
execution and validity, and is also conclusive that the testator
was of sound and disposing mind at the time when he
executed the will, and was not acting under duress, menace,
fraud, or undue influence, and that the will is genuine and not
a forgery. (Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil
Procedure aforequoted, was taken almost bodily from the
Statutes of Vermont, the decisions of the Supreme Court of the
State relative to the effect of the probate of a will are of
persuasive authority in this jurisdiction. The Vermont statute as
to the conclusiveness of the due execution of a probated will
reads as follows.
SEC. 2356. No will shall pass either real or personal estate,
unless it is proved and allowed in the probate court, or by
appeal in the county or supreme court; and the probate of a
will of real or personal estate shall be conclusive as to its due
execution. (Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary
Society vs. Eells (68 Vt., 497, 504): "The probate of a will by
the probate court having jurisdiction thereof, upon the due
notice, is conclusive as to its due execution against the whole
world. (Vt. St., sec. 2336; Fosters Exrs. vs. Dickerson, 64 Vt.,
233.)"
The probate of a will in this jurisdiction is a proceeding in rem.
The provision of notice by Publication as a prerequisite to the
allowance of a will is constructive notice to the whole world,
and when probate is granted, the judgment of the court is
binding upon everybody, even against the State. This court
held in the case of Manalo vs. Paredes and Philippine Food
Co. (47 Phil., 938):
The proceeding for the probate of a will is one in rem (40 Cyc.,
1265), and the court acquires jurisdiction over all the persons
interested, through the publication of the notice prescribed by
section 630 of the Code of Civil Procedure, and any order that
may be entered therein is binding against all of them.
Through the publication of the petition for the probate of the
will, the court acquires jurisdiction over all such persons as are
interested in said will; and any judgment that may be rendered
after said proceeding is binding against the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of
Vermont held.
In this State the probate of a will is a proceeding in rem being
in form and substance upon the will itself to determine its
validity. The judgment determines the status of the instrument,
whether it is or is not the will of the testator. When the proper
steps required by law have been taken the judgment is binding
upon everybody, and makes the instrument as to all the world
just what the judgment declares it to be. (Woodruff vs. Taylor,
20 Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713, 715; Missionary
155
Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The
proceedings before the probate court are statutory and are not
governed by common law rules as to parties or causes of
action. (Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdy
vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is
issued against anyone in such proceedings, but all persons
interested in determining the state or conditions of the
instrument are constructively notified by the publication of
notice as required by G. L. 3219. (Woodruff vs. Taylor, supra;
In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)
Section 333, paragraph 4, of the Code of Civil Procedure
establishes an incontrovertible presumption in favor of
judgments declared by it to be conclusive.
SEC. 333. Conclusive Presumptions. — The following
presumptions or deductions, which the law expressly directs to
be made from particular facts, are deemed conclusive.
xxx xxx xxx
4. The judgment or order of a court, when declared by this
code to be conclusive.
Conclusive presumptions are inferences which the law makes
so peremptory that it will not allow them to be overturned by
any contrary proof however strong. (Brant vs. Morning Journal
Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also,
Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S., 311.) The will
in question having been probated by a competent court, the
law will not admit any proof to overthrow the legal presumption
that it is genuine and not a forgery.
The majority decision of the Court of Appeals cites English
decisions to bolster up its conclusion that "the judgment
admitting the will to probate is binding upon the whole world as
to the due execution and genuineness of the will insofar as
civil rights and liabilities are concerned, but not for the purpose
of punishment of a crime." The cases of Dominus Rex vs.
Vincent, 93 English Reports, Full Reprint, 795, the first case
being decided in 1721, were cited to illustrate the earlier
English decisions to the effect that upon indictment for forging
a will, the probating of the same is conclusive evidence in the
defendants favor of its genuine character. Reference is made,
however, to the cases of Rex vs. Gibson, 168 English Reports,
Full Reprint, 836, footnote (a), decided in 1802, and Rex vs.
Buttery and Macnamarra, 168 English Reports, Full Reprint,
836, decided in 1818, which establish a contrary rule. Citing
these later cases, we find the following quotation from Black
on Judgments, Vol. II, page 764.
A judgment admitting a will to probate cannot be attacked
collaterally although the will was forged; and a payment to the
executor named therein of a debt due the decedent will
discharge the same, notwithstanding the spurious character of
the instrument probated. It has also been held that, upon an
indictment for forging a will, the probate of the paper in
question is conclusive evidence in the defendants favor of its
genuine character. But this particular point has lately been
ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the
Supreme Court of Massachussetts in the case of Waters vs.
Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the
majority opinion, to hold that "according to later and sounder
156

decisions, the probate, though conclusive until set aside of the
disposition of the property, does not protect the forger from
punishment." This was reproduced in 28 R.C.L., p. 376, and
quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715),
and Thompson vs. Freeman (149 So., 740, 742), also cited in
support of the majority opinion of the Court of Appeals. The
dissenting opinion of the Court of Appeals in the instant case
under review makes a cursory study of the statutes obtaining
in England, Massachussetts and Florida, and comes to the
conclusion that the decisions cited in the majority opinion do
not appear to "have been promulgated in the face of statutes
similar to ours." The dissenting opinion cites Whartons
Criminal Evidence (11th ed., sec. 831), to show that the
probate of a will in England is only prima facie proof of the
validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93
English Reprint, 770); and 21 L.R.A. (pp. 686689 and note), to
show that in Massachussetts there is no statute making the
probate of a will conclusive, and that in Florida the statute(sec.
1810, Revised Statutes) makes the probate conclusive
evidence as to the validity of the will with regard to personal,
and prima facie as to real estate. The cases decided by the
Supreme Court of Florida cited by the majority opinion, supra,
refer to wills of both personal and real estate.
The petitioner cites the case of State vs. McGlynn (20 Cal.,
233, decided in 1862), in which Justice Norton of the Supreme
Court of California, makes the following review of the nature of
probate proceedings in England with respect to wills personal
and real property.
In England, the probate of wills of personal estate belongs to
the Ecclesiastical Courts. No probate of a will relating to real
Probate on personal estates
estate is there necessary. The real estate, upon the death of
the party seized, passes immediately to the devisee under the
will if there be one; or if there be no will, to the heir at law. The
person who thus becomes entitled takes possession. If one
person claims to be the owner under a will, and another denies
the validity of the will and claims to be the owner as heir at law,
an action of ejectment is brought against the party who may be
in possession by the adverse claimant; and on the trial of such
an action, the validity of the will is contested, and evidence
may be given by the respective parties as to the capacity of
the testator to make a will, or as to any fraud practiced upon
him, or as to the actual execution of it, or as to any other
circumstance affecting its character as a valid devise of the
real estate in dispute.
The decision upon the validity of the will in such action
becomes res adjudicata, and is binding and conclusive upon
the parties to that action and upon any person who may
subsequently acquire the title from either of those parties; but
the decision has no effect upon other parties, and does not
settle what may be called the status or character of the will,
leaving it subject to be enforced as a valid will, or defeated as
invalid, whenever other parties may have a contest depending
upon it. A probate of a will of personal property, on the
contrary, is a judicial determination of the character of the will
itself. It does not necessarily or ordinarily arise from any
controversy between adverse claimants, but is necessary in
order to authorize a disposition of the personal estate in
pursuance of its provisions.
In case of any controversy between adverse claimants of the
personal estate, the probate is given in evidence and is
157
binding upon the parties, who are not at liberty to introduce
any other evidence as to the validity of the will.
The intervenors, on the other hand, attempt to show that the
English law on wills is different from that stated in the case of
State vs. McGlynn, supra, citing the following statutes.
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of
"every instrumental purporting to be testamentary and
executed in accordance with the statutory requirements . . . if it
disposes of property, whether personal or real." The
Ecclesiastical Courts which took charge of testamentary
causes (Ewells Blackstone [1910], p. 460), were determined
by the Court of Probate Act of 1857, and the Court of Probate
in turn was, together with other courts, incorporated into the
Supreme Court of Judicature, and transformed into the
Probate Division thereof, by the Judicature Act of 1873. (Lord
Halsbury, The Laws of England[1910], pp. 151156.)
The intervenors overlook the fact, however, that the case of
Rex vs. Buttery and Macnamarra, supra, upon which they rely
in support of their theory that the probate of a forged will does
not protect the forger from punishment, was decided long
before the foregoing amendatory statutes to the English law on
wills were enacted. The case of State vs. McGlynn may be
considered, therefore, as more or less authoritative on the law
of England at the time of the promulgation of the decision in
the case of Rex vs. Buttery and Macnamarra.
In the case of State vs. McGlynn, the Attorney General of
California filed an information to set aside the probate of the
will of one Broderick, after the lapse of one year provided by
the law of California for the review of an order probating a will,
in order that the estate may be escheated to the State of
California for the review of an probated will was forged and
that Broderick therefore died intestate, leaving no heirs,
representatives or devisees capable of inheriting his estate.
Upon these facts, the Supreme Court of California held.
The fact that a will purporting to be genuine will of Broderick,
devising his estate to a devisee capable of inheriting and
holding it, has been admitted to probate and established as a
genuine will by the decree of a Probate Court having
jurisdiction of the case, renders it necessary to decide whether
that decree, and the will established by it, or either of them,
can be set aside and vacated by the judgment of any other
court. If it shall be found that the decree of the Probate Court,
not reversed by the appellate court, is final and conclusive,
and not liable to be vacated or questioned by any other court,
either incidentally or by any direct proceeding, for the purpose
of impeaching it, and that so long as the probate stands the
will must be recognized and admitted in all courts to be valid,
then it will be immaterial and useless to inquire whether the
will in question was in fact genuine or forged. (State vs.
McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.).
Although in the foregoing case the information filed by the
State was to set aside the decree of probate on the ground
that the will was forged, we see no difference in principle
158
between that case and the case at bar. A subtle distinction
could perhaps be drawn between setting aside a decree of
probate, and declaring a probated will to be a forgery. It is
clear, however, that a duly probated will cannot be declared to
be a forgery without disturbing in a way the decree allowing
said will to probate. It is at least anomalous that a will should
be regarded as genuine for one purpose and spurious for
another.
The American and English cases show a conflict of authorities
on the question as to whether or not the probate of a will bars
criminal prosecution of the alleged forger of the probate will.
We have examined some important cases and have come to
the conclusion that no fixed standard maybe adopted or drawn
therefrom, in view of the conflict no less than of diversity of
statutory provisions obtaining in different jurisdictions. It
behooves us, therefore, as the court of last resort, to choose
that rule most consistent with our statutory law, having in view
the needed stability of property rights and the public interest in
general. To be sure, we have seriously reflected upon the
dangers of evasion from punishment of culprits deserving of
the severity of the law in cases where, as here, forgery is
discovered after the probate of the will and the prosecution is
had before the prescription of the offense.
By and large, however, the balance seems inclined in favor of
the view that we have taken. Not only does the law surround
the execution of the will with the necessary formalities and
require probate to be made after an elaborate judicial
proceeding, but section 113, not to speak of section 513, of our
Code of Civil Procedure provides for an adequate remedy to
any party who might have been adversely affected by the
probate of a forged will, much in the same way as other parties
against whom a judgment is rendered under the same or
similar circumstances. (Pecson vs. Coronel, 43 Phil., 358.)The
aggrieved party may file an application for relief with the
proper court within a reasonable time, but in no case
exceeding six months after said court has rendered the
judgment of probate, on the ground of mistake, inadvertence,
surprise or excusable neglect.
An appeal lies to review the action of a court of first instance
when that court refuses to grant relief. (Banco Español Filipino
vs. Palanca, 37 Phil., 921; Philippine Manufacturing Co. vs.
Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After
a judgment allowing a will to be probated has become final
and unappealable, and after the period fixed by section 113 of
the Code of Civil Procedure has expired, the law as an
expression of the legislative wisdom goes no further and the
case ends there.
. . . The court of chancery has no capacity, as the authorities
have settled, to judge or decide whether a will is or is not a
forgery; and hence there would be an incongruity in its
assuming to set aside a probate decree establishing a will, on
the ground that the decree was procured by fraud, when it can
only arrive at the fact of such fraud by first deciding that the
will was a forgery. There seems, therefore, to be a substantial
reason, so long as a court of chancery is not allowed to judge
of the validity of a will, except as shown by the probate, for the
exception of probate decrees from the jurisdiction which courts
of chancery exercise in setting aside other judgments obtained
by fraud. But whether the exception be founded in good
reason or otherwise, it has become too firmly established to be
159
disregarded. At the present day, it would not be a greater
assumption to deny the general rule that courts of chancery
may set aside judgments procured by fraud, than to deny the
exception to that rule in the case of probate decrees. We must
acquiesce in the principle established by the authorities, if we
are unable to approve of the reason. Judge Story was a
staunch advocate for the most enlarged jurisdiction of courts of
chancery, and was compelled to yield to the weight of
authority. He says "No other excepted case is known to exist;
and it is not easy to discover the grounds upon which this
exception stands, in point of reason or principle, although it is
clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State
vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. See, also,
Tracy vs. Muir, 121 American State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections
306, 333 and 625 of our Code of Civil Procedure, criminal
action will not lie in this jurisdiction against the forger of a will
which had been duly admitted to probate by a court of
competent jurisdiction.
The resolution of the foregoing legal question is sufficient to
dispose of the case. However, the other legal question with
reference to the denial to the accused of his right to a speedy
trial having been squarely raised and submitted, we shall
proceed to consider the same in the light of cases already
adjudicated by this court.
2. The Constitution of the Philippines provides that "In all
criminal prosecutions the accused . . . shall enjoy the right . . .
to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See,
also, G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be
found in the Presidents Instructions to the Second Philippine
Commission (par. 11), the Philippine Bill of July 1, 1902 (sec.
5, par. 2) and the Jones Act of August 29, 1916 (sec. 3, par.
2). The provisions in the foregoing organic acts appear to have
been taken from similar provisions in the Constitution of the
United States (6th Amendment) and those of the various
states of the American Union. A similar injunction is contained
in the Malolos Constitution (art. 8, Title IV), not to speak of
other constitutions. More than once this court had occasion to
set aside the proceedings in criminal cases to give effect to the
constitutional injunction of speedy trial. (Conde vs. Judge of
First Instance and Fiscal of Tayabas [1923], 45 Phil., 173;
Conde vs. Rivera and Unson[1924], 45 Phil., 650; People vs.
Castañeda and Fernandez[1936]), 35 Off. Gaz., 1269; Kalaw
vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la
Costa, Aug. 30,1938, G.R. No. 46039.).
In Conde vs. Rivera and Unson, supra, decided before the
adoption of our Constitution, we said.
Philippine organic and statutory law expressly guarantee that
in all criminal prosecutions the accused shall enjoy the right to
have a speedy trial. Aurelia Conde, like all other accused
persons, has a right to a speedy trial in order that if innocent
she may go free, and she has been deprived of that right in
defiance of law. Dismissed from her humble position, and
compelled to dance attendance on courts while investigations
and trials are arbitrarily postponed without her consent, is
palpably and openly unjust to her and a detriment to the
public. By the use of reasonable diligence, the prosecution
could have settled upon the appropriate information, could
have attended to the formal preliminary examination, and
160
could have prepared the case for a trial free from vexatious,
capricious, and oppressive delays.
In People vs. Castañeda and Fernandez, supra, this court
found that the accused had not been given a fair and impartial
trial. The case was to have been remanded to the court a quo
for a new trial before an impartial judge. This step, however,
was found unnecessary. A review of the evidence convinced
this court that a judgment of conviction for theft, as charged,
could not be sustained and, having in view the right to a
speedy trial guaranteed by the Constitution to every person
accused of crime, entered a judgment acquitting the accused,
with costs de oficio. We said.
. . . The Constitution, Article III, section 1, paragraph 17,
guarantees to every accused person the right to a speedy trial.
This criminal proceeding has been dragging on for almost five
years now. The accused have twice appealed to this court for
redress from the wrong that they have suffered at the hands of
the trial court. At least one of them, namely Pedro Fernandez
alias Piro, had been con-fined in prison from July 20, 1932 to
November 27, 1934, for inability to post the required bond of
P3,000 which was finally reduced to P300. The Government
should be the last to set an example of delay and oppression
in the administration of justice and it is the moral and legal
obligation of this court to see that the criminal proceedings
against the accused come to an end and that they be
immediately dis-charged from the custody of the law. (Conde
vs. Rivera and Unson, 45 Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this
court applied and gave effect to the doctrines stated in the
second Conde case, supra. In granting the writs prayed for,
this court, after referring to the constitutional and statutory
provisions guaranteeing to persons accused of crime the right
to a speedy trial, said:
Se infiere de los preceptos legales transcritos que todo
acusado en causa criminal tiene derecho a ser juzgado pronta
y publicamente. Juicio rapido significa un juicioque se celebra
de acuerdo con la ley de procedimiento criminal y los
reglamentos, libre de dilaciones vejatorias, caprichosas y
opersivas (Burnett vs. State, 76 Ark., 295; 88S. W., 956; 113
AMSR, 94; Stewart vs. State, 13 Ark., 720; Peo. vs. Shufelt,
61 Mich., 237; 28 N. W., 79; Nixon vs. State, 10 Miss., 497; 41
AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736; State
vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17
Wyo., 227, 98 p., 122;22 IRANS, 896; 17 Ann. Cas., 161).
Segun los hechos admitidos resulta que al recurrente se le
concedio vista parcial del asunto, en el Juzgado de Primera
Instancia de Samar, solo despues de haber transcurrido ya
mas de un año y medio desde la presentacion de la primera
querella y desde la recepcion de la causa en dicho Juzgado, y
despues de haberse transferido dos veces la vista delasunto
sin su consentimiento. A esto debe añadirse que laprimera
transferencia de vista era claramente injustificadaporque el
motivo que se alego consistio unicamente en laconveniencia
personal del ofendido y su abogado, no habiendose probado
suficientemente la alegacion del primero de quese hallaba
enfermo. Es cierto que el recurrente habia pedido que, en vez
de señalarse a vista el asunto para el mayo de 1936, lo fuera
para el noviembre del mismo año; pero,aparte de que la razon
que alego era bastante fuerte porquesu abogado se oponia a
comparecer por compromisos urgentes contraidos con
anterioridad y en tal circunstancia hubiera quedado indefenso
161
si hubiese sido obligado a entraren juicio, aparece que la vista
se pospuso por el Juzgado amotu proprio, por haber
cancelado todo el calendario judicial preparado por el
Escribano para el mes de junio. Declaramos, con visto de
estos hechos, que al recurrents se leprivo de su derecho
fundamental de ser juzgado prontamente.
Esguerra vs. De la Costa, supra, was a petition for mandamus
to compel the respondent judge of the Court of First Instance
of Rizal to dismiss the complaint filed in a criminal case
against the petitioner, to cancel the bond put up by the said
petitioner and to declare the costs de oficio. In accepting the
contention that the petitioner had been denied speedy trial,
this court said:
Consta que en menos de un año el recurrente fue procesado
criminalmente por el alegado delito de abusos deshonestos,
en el Juzgado de Paz del Municipio de Cainta, Rizal. Como
consecuencia de las denuncias que contra el se presentaron
fue arrestado tres veces y para gozar de libertad provisional,
en espera de los juicios, se vio obligado a prestartres fianzas
por la suma de P1,000 cada una. Si no se da fin al proceso
que ultimamente se ha incoado contra el recurrente la
incertidumbre continuara cerniendose sobre el y las
consiguientes molestias y preocupaciones continuaran
igualmente abrumandole. El Titulo III, articulo 1, No. 17,de la
Constitucion preceptua que en todo proceso criminalel
acusado tiene derecho de ser juzgado pronta y publicamente.
El Articulo 15, No. 7, de la Orden General No. 58 dispone
asimismo que en las causas criminales el acusado tendra
derecho a ser juzgado pronta y publicamente. Si el recurrente
era realmente culpable del delito que se le imputo, tenia de
todos modos derechos a que fuera juzgado pronta y
publicamente y sin dilaciones arbitrarias y vejatorias. Hemos
declarado reiteradamente que existe un remedio positivo para
los casos en que se viola el derecho constitucional del
acusado de ser juzgado prontamente. El acusado que
esprivado de su derecho fundomental de ser enjuiciado
rapidamente tiene derecho a pedir que se le ponga en
libertad, si estuviese detenido, o a que la causa que pende
contra el sea sobreseida definitivamente. (Conde contra
Rivera y Unson, 45 Jur. Fil., 682; In the matter of Ford [1911],
160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512; Kalaw contra
Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra
Castañeda y Fernandez, 35 Gac. Of., 1357.)
We are again called upon to vindicate the fundamental right to
a speedy trial. The facts of the present case may be at
variance with those of the cases hereinabove referred to.
Nevertheless, we are of the opinion that, under the
circumstances, we should consider the substance of the right
instead of indulging in more or less academic or undue factual
differentiations. The petitioner herein has been arrested four
times, has put up a bond in the sum of P4,000 and has
engaged the services of counsel to undertake his defense an
equal number of times. The first arrest was made upon a
complaint filed by one of the intervenors herein for alleged
falsification of a will which, sixteen months before, had been
probated in court. This complaint, after investigation, was
dismissed at the complainant's own request. The second
arrest was made upon a complaint charging the same offense
and this complaint, too, was dismissed at the behest of the
complainant herself who alleged the quite startling ground that
the petitioner was in poor health. The third arrest was made
162
following the filing of an information by the provincial fiscal of
Pampanga, which information was dismissed, after due
investigation, because of insufficiency of the evidence. The
fourth arrest was made when the provincial fiscal secured a
reinvestigation of the case against the petitioner on the pretext
that he had additional evidence to present, although such
evidence does not appear to have ever been presented.
It is true that the provincial fiscal did not intervene in the case
until February 2, 1934, when he presented an information
charging the petitioner, for the third time, of the offense of
falsification. This, however, does not matter. The prosecution
of offenses is a matter of public interest and it is the duty of the
government or those acting in its behalf to prosecute all cases
to their termination without oppressive, capricious and
vexatious delay. The Constitution does not say that the right to
a speedy trial may be availed of only where the prosecution for
crime is commenced and undertaken by the fiscal. It does not
exclude from its operation cases commenced by private
individuals. Where once a person is prosecuted criminally, he
is entitled to a speedy trial, irrespective of the nature of the
offense or the manner in which it is authorized to be
commenced. In any event, even the actuations of the fiscal
himself in this case is not entirely free from criticism. From
October 27, 1932, when the first complaint was filed in the
justice of the peace court of San Fernando, to February 2,
1934, when the provincial fiscal filed his information with the
justice of the peace of Mexico, one year, three months and six
days transpired; and from April 27, 1933, when the second
criminal complaint was dismissed by the justice of the peace of
Mexico, to February 2, 1934, nine months and six days
elapsed. The investigation following the fourth arrest, made
after the fiscal had secured a reinvestigation of the case,
appears also to have dragged on for about a year. There
obviously has been a delay, and considering the antecedent
facts and circumstances within the knowledge of the fiscal, the
delay may not at all be regarded as permissible. In Kalaw vs.
Apostol, supra, we observed that the prosecuting officer all
prosecutions for public offenses (secs. 1681 and 2465 of the
Rev. Adm. Code), and that it is his duty to see that criminal
cases are heard without vexatious, capricious and oppressive
delays so that the courts of justice may dispose of them on the
merits and determine whether the accused is guilty or not. This
is as clear an admonition as could be made. An accused
person is entitled to a trial at the earliest opportunity.
(Sutherland on the Constitution, p. 664; United States vs. Fox,
3 Mont., 512.)
He cannot be oppressed by delaying he commencement of
trial for an unreasonable length of time. If the proceedings
pending trial are deferred, the trial itself is necessarily delayed.
It is not to be supposed, of course, that the Constitution
intends to remove from the prosecution every reasonable
opportunity to prepare for trial. Impossibilities cannot be
expected or extraordinary efforts required on the part of the
prosecutor or the court. As stated by the Supreme Court of the
United States, "The right of a speedy trial is necessarily
relative. It is consistent with delays and depends upon
circumstances. It secures rights to a defendant. It does not
preclude the rights of public justice." (Beavers vs. Haubert
[1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).
It may be true, as seems admitted by counsel for the
intervenors, in paragraph 8, page 3 of his brief, that the delay
163
was due to "the efforts towards reaching an amicable
extrajudicial compromise," but this fact, we think, casts doubt
instead upon the motive which led the intervenors to bring
criminal action against the petitioner. The petitioner claims that
the intention of the intervenors was to press upon settlement,
with the continuous threat of criminal prosecution,
notwithstanding the probate of the will alleged to have been
falsified. Argument of counsel for the petitioner in this regard is
not without justification. Thus after the filing of the second
complaint with the justice of the peace court of Mexico,
complainant herself, as we have seen, asked for dismissal of
the complaint, on the ground that "el acusado tenia la salud
bastante delicada," and, apparently because of failure to arrive
at any settlement, she decided to renew her complaint.
Counsel for the intervenors contend — and the contention is
sustained by the Court of Appeals — that the petitioner did not
complain heretofore of the denial of his constitutional right to a
speedy trial. This is a mistake. When the petitioner, for the
fourth time, was ordered arrested by the Court of First
Instance of Pampanga, he moved for reconsideration of the
order of arrest, alleging, among other things, "Que por estas
continuas acusaciones e investigaciones, el acusado
compareciente no obstante su mal estado de salud desde el
año 1932 en que tuvo que ser operado por padecer de
tuberculosis ha tenido que sostener litigios y ha sufrido la mar
de humiliaciones y zozobras y ha incudo en enormes gastos y
molestias y ha desatendido su quebrantada salud." The
foregoing allegation was inserted on page 6 of the amended
petition for certiorari presented to the Court of Appeals. The
constitutional issue also appears to have been actually raised
and considered in the Court of Appeals. In the majority opinion
of that court, it is stated:
Upon the foregoing facts, counsel for the petitioner submits for
the consideration of this court the following questions of law:
First, that the respondent court acted arbitrarily and with abuse
of its authority, with serious damage and prejudice to the rights
and interests of the petitioner, in allowing that the latter be
prosecuted and arrested for the fourth time, and that he be
subjected, also for the fourth time, to a preliminary
investigation for the same offense, hereby converting the court
into an instrument of oppression and vengeance on the part of
the alleged offended parties, Rosario Basa et al.; . . . .
And in the dissenting opinion, we find the following opening
paragraph:
We cannot join in a decision declining to stop a prosecution
that has dragged for about five years and caused the arrest on
four different occasions of a law abiding citizen for the alleged
offense of falsifying a will that years be competent jurisdiction.
From the view we take of the instant case, the petitioner is
entitled to have the criminal proceedings against him quashed.
The judgment of the Court of Appeals is hereby reversed,
without pronouncement regarding costs. So ordered.
164
G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID,vs.FELIX NUGUID and PAZ SALONGA
NUGUID
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December
30, 1962, single, without descendants, legitimate or
illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and
sisters, namely: Alfredo, Federico, Remedios, Conrado,
Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the
Court of First Instance of Rizal a holographic will allegedly
executed by Rosario Nuguid on November 17, 1951, some 11
years before her demise. Petitioner prayed that said will be
admitted to probate and that letters of administration with the
will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the deceased
Rosario Nuguid, entered their opposition to the probate of her
will. Ground therefor, inter alia, is that by the institution of
petitioner Remedios Nuguid as universal heir of the deceased,
oppositors — who are compulsory heirs of the deceased in the
direct ascending line — were illegally preterited and that in
consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition
for probate and objection thereto, oppositors moved to dismiss
on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to
the motion to dismiss.1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in
question is a complete nullity and will perforce create intestacy
of the estate of the deceased Rosario Nuguid" and dismissed
the petition without costs.
A motion to reconsider having been thwarted below, petitioner
came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our
attention. The case is for the probate of a will. The court's area
of inquiry is limited — to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the
requisites or solemnities by law prescribed, are the questions
solely to be presented, and to be acted upon, by the court.
Said court at this stage of the proceedings — is not called
upon to rule on the intrinsic validity or efficacy of the provisions
of the will, the legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted
aside the question of whether or not the will should be allowed
probate. For them, the meat of the case is the intrinsic validity
of the will. Normally, this comes only after the court has
declared that the will has been duly authenticated.2 But
petitioner and oppositors, in the court below and here on
Issue
appeal, travelled on the issue of law, to wit: Is the will
intrinsically a nullity?
We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary, this
165
litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before
us on the same issue of the intrinsic validity or nullity of the
will. Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question.3 After all, there
exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the
correctness of the conclusion below that the will is a complete
nullity. This exacts from us a study of the disputed will and the
applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and
disposing mind and memory, having amassed a
certain amount of property, do hereby give,
devise, and bequeath all of the property which I
may have when I die to my beloved sister
Remedios Nuguid, age 34, residing with me at
38-B Iriga, Q.C. In witness whereof, I have signed
my name this seventh day of November, nineteen
hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the
Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and
legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is
a reproduction of Article 814 of the Civil Code of Spain of
1889, which is similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs in the
direct line, whether living at the time of the execution of the will
or born after the death of the testator, shall void the institution
of heir; but the legacies and betterments4 shall be valid, in so
far as they are not inofficious. ...
A comprehensive understanding of the term preterition
employed in the law becomes a necessity. On this point
Manresa comments:
La pretericion consiste en omitar al heredero en el testamento.
O no se le nombra siquiera o aun nombrandole como padre,
hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes,
resultando privado de un modo tacito de su derecho a
legitima.
Para que exista pretericion, con arreglo al articulo 814, basta
que en el testamento omita el testador a uno cualquiera de
166
aquellos a quienes por su muerte corresponda la herencia
forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero
forzoso. b) Que la omision sea completa; que el heredero
forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a
clear perspective of the problem before us, to have on hand a
clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's
Estate, 54 A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul
alimony provisions of divorce decree upon wife's remarriage
means to reduce to nothing; to annihilate; obliterate; blot out;
to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50
— 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d
611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make
void or of no effect; to nullify; to abolish; to do away with. Ex
parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario
Nuguid left no descendants, legitimate or illegitimate. But she
left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by
the testament; tacitly, they were deprived of their legitime;
neither were they expressly disinherited. This is a clear case of
preterition. Such preterition in the words of Manresa "anulara
siempre la institucion de heredero, dando caracter absoluto a
este ordenamiento referring to the mandate of Article 814, now
854 of the Civil Code.9 The one-sentence will here institutes
petitioner as the sole, universal heir — nothing more. No
specific legacies or bequests are therein provided for. It is in
this posture that we say that the nullity is complete. Perforce,
Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se
anula deja de existir, en todo o en parte? No se añade
limitacion alguna, como en el articulo 851, en el que se
expresa que se anulara la institucion de heredero en cuanto
prejudique a la legitima del deseheredado Debe, pues,
entenderse que la anulacion es completa o total, y que este
articulo como especial en el caso que le motiva rige con
preferencia al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion de
heredero por pretericion de uno, varios o todos los forzosos en
linea recta, es la apertura de la sucesion intestada total o
parcial. Sera total, cuando el testador que comete la
pretericion, hubiese dispuesto de todos los bienes por titulo
universal de herencia en favor de los herederos instituidos,
cuya institucion se anula, porque asi lo exige la generalidad
del precepto legal del art. 814, al determinar, como efecto de
la pretericion, el de que "anulara la institucion de heredero." ...
11
Really, as we analyze the word annul employed in the statute,
there is no escaping the conclusion that the universal
institution of petitioner to the entire inheritance results in totally
167
abrogating the will. Because, the nullification of such institution
of universal heir — without any other testamentary disposition
in the will — amounts to a declaration that nothing at all was
written. Carefully worded and in clear terms, Article 854 offers
no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On
this point, Sanchez Roman cites the "Memoria annual del
Tribunal Supreme, correspondiente a 1908", which in our
opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la
nulidad de la institucion de heredero, no consiente
interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto aun cuando parezca, y en algun caso
pudiera ser, mas o menos equitativa, porque una nulidad no
significa en Derecho sino la suposicion de que el hecho o el
acto no se ha realizado, debiendo por lo tanto procederse
sobre tal base o supuesto, y consiguientemente, en un
testamento donde falte la institucion, es obligado llamar a los
herederos forzosos en todo caso, como habria que llamar a
los de otra clase, cuando el testador no hubiese distribudo
todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos,
sabido es, segun tiene declarado la jurisprudencia, con
repeticion, que no basta que sea conocida la voluntad de
quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz,
por lo que constituiria una interpretacion arbitraria, dentro del
derecho positivo, reputar como legatario a un heredero cuya
institucion fuese anulada con pretexto de que esto se
acomodaba mejor a la voluntad del testador, pues aun cuando
asi fuese, sera esto razon para modificar la ley, pero no
autoriza a una interpretacion contraria a sus terminos y a los
principios que informan la testamentifaccion, pues no porque
parezca mejor una cosa en el terreno del Derecho
constituyente, hay razon para convereste juicio en regla de
interpretacion, desvirtuando y anulando por este
procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854
that, annullment notwithstanding, "the devises and legacies
shall be valid insofar as they are not inofficious". Legacies and
devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that the
mere institution of a universal heir in a will — void because of
preterition — would give the heir so instituted a share in the
inheritance. As to him, the will is inexistent. There must be, in
addition to such institution, a testamentary disposition granting
him bequests or legacies apart and separate from the nullified
institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition
annuls the institution of the heir "totalmente por la pretericion";
but added (in reference to legacies and bequests) "pero
subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire
inheritance including "la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us
except the institution of petitioner as universal heir. That
institution, by itself, is null and void. And, intestate succession
ensues.
168
4. Petitioner's mainstay is that the present is "a case of
ineffective disinheritance rather than one of preterition". 15
From this, petitioner draws the conclusion that Article 854
"does not apply to the case at bar". This argument fails to
appreciate the distinction between pretention and
disinheritance.
Preterition "consists in the omission in the testator's will of the
forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited." 16
Disinheritance, in turn, "is a testamentary disposition depriving
any compulsory heir of his share in the legitime for a cause
authorized by law. " 17 In Manresa's own words: "La privacion
expresa de la legitima constituye la desheredacion. La
privacion tacita de la misma se denomina pretericion." 18
Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the
other hand, is presumed to be "involuntaria". 19 Express as
disinheritance should be, the same must be supported by a
legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's
parents, the forced heirs. It simply omits their names
altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs
suffer from preterition.
On top of this is the fact that the effects flowing from preterition
are totally different from those of disinheritance. Preterition
under Article 854 of the Civil Code, we repeat, "shall annul the
institution of heir". This annulment is in toto, unless in the will
there are, in addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under Article
918 of the same Code, such disinheritance shall also "annul
the institution of heirs", put only "insofar as it may prejudice the
person disinherited", which last phrase was omitted in the case
of preterition. 21 Better stated yet, in disinheritance the nullity is
limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive
language, in commenting on the rights of the preterited heirs in
the case of preterition on the one hand and legal
disinheritance on the other, runs thus: "Preteridos, adquiren el
derecho a todo; desheredados, solo les corresponde un tercio
o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively
disinherited are entitled to receive their legitimes, but that the
institution of heir "is not invalidated," although the inheritance
of the heir so instituted is reduced to the extent of said
legitimes. 24
This is best answered by a reference to the opinion of Mr.
Chief Justice Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal
title in favor of the children by the second marriage should be
treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted,
will result in a complete abrogation of Articles 814 and 851 of
the Civil Code. If every case of institution of heirs may be
made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of the
institution, would. be absolutely meaningless and will never
have any application at all. And the remaining provisions
169
contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they
would be absorbed by Article 817. Thus, instead of construing,
we would be destroying integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due

mainly to a failure to distinguish institution of heirs from
legacies and betterments, and a general from a special
provision. With reference to article 814, which is the only
provision material to the disposition of this case, it must be
observed that the institution of heirs is therein dealt with as a
thing separate and distinct from legacies or betterments. And
they are separate and distinct not only because they are
distinctly and separately treated in said article but because
they are in themselves different. Institution of heirs is a
bequest by universal title of property that is undetermined.
Legacy refers to specific property bequeathed by a particular
or special title. ... But again an institution of heirs cannot be
taken as a legacy. 25

The disputed order, we observe, declares the will in question

"a complete nullity". Article 854 of the Civil Code in turn merely
nullifies "the institution of heir". Considering, however, that the
will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The
entire will is null.

Upon the view we take of this case, the order of November 8,

1963 under review is hereby affirmed. No costs allowed. So
ordered.

170
G.R. No. L-12207 December 24, 1959
JUAN PALACIOS,vs. MARIA CATIMBANG PALACIOS,
BAUTISTA ANGELO, J.:
Juan Palacios executed his last will and testament on June 25,
1946 and availing himself of the provisions of the new Civil
Code, he filed on May 23, 1956 before the Court of First
Instance of Batangas a petition for its approval. In said will, he
instituted as his sole heirs his natural children Antonio C.
Palacios and Andrea C. Palacios.
On June 21, 1956, Maria Catimbang filed a opposition to the
probate of the will alleging that she is the acknowledged
natural daughter of petitioner but that she was completely
ignored in said will thus impairing here legitime.
After the presentation of petitioner's evidence relative to the
essential requisites and formalities provided by law for the
validity of a will, the court on July 6, 1956 issued an order
admitting the will to probate. The court, however, set a date for
the hearing of the opposition relative to the intrinsic validity of
the will and, after proper hearing concerning this incident, the
court issued another order declaring oppositor to be the
natural child of petitioner and annulling the will insofar as it
impairs her legitime, with costs against petitioner.
From this last order, petitioner gave notice of his intention to
appeal directly to the Supreme Court, and accordingly, the
record was elavated to this Court.
It should be noted that petition instituted the present
proceeding in order to secure the probate of his will availing
himself of the provisions of Article 838, paragraph 2, of the
new Civil Code, which permit a testator to petition the proper
court during his lifetime for the allowance of his will, but to
such petition on Maria Catimbang filed an opposition alleging
that she is the acknowledged natural daughter of petitioner but
that she was completely ignored in the will thus impairing her
object to the probate of the will insofar as it due execution is
concerned or on the ground that it has not complied with the
formalities prescribed by law; rather she objects to its intrinsic
validity or to the legality of the provisions of the will.
We hold that such opposition cannot be entertained in this
proceeding because its only purpose is merely to determine if
the will has been executed in accordance with the
requirements of the law, much less if the purpose of the
opposition is to show that the oppositor is an acknowledged
natural child who allegedly has been ignored in the will for
issue cannot be raised here but in a separate action. This is
especially so when the testator, as in the present case, is still
alive and has merely filed a petition for the allowance of his will
leaving the effects thereof after his death.lawphi1.net
This is in line with our ruling in Montañano vs. Suesa, 14 Phil.,
676, wherein we said: "The authentication of the will decides
no other questions than such as touch upon the capacity of the
testator and the compliance with those requisites or
solemnities which the law prescribes for the validity of a will. It
does not determine nor even by implication prejudge the
validity or efficiency of the provisions; that may be impugned
as being vicious or null, notwithstanding its authentication. The
questions relating to these points remain entirely un-affected,
and may be raised even after the will has been authenticated."
171
On the other hand, "after a will has been probated during the
lifetime of a testator, it does not necessarily mean that he
cannot alter or revoke the same before he has had a chance
to present such petition, the ordinary probate proceedings
after the testator's death would be in order" (Report of the
Code Commission, pp. 53-54).The reason for this comment is
that the rights to the succession are transmitted from the
moment of the death of the decedent (Article 777, new Civil
Code.).

It is clear that the trial court erred in entertaining the opposition

and in annulling the portion of the will which allegedly impairs
the legitime of the oppositor on the ground that, as it has
found, she is an extraneous matter which should be treshed
out in a separate action.

Wherefore, the order appealed from is set aside, without

pronouncement as to costs.

172
G.R. No. 198994, February 03, 2016
IRIS MORALES, v. ANA MARIA OLONDRIZ,
BRION, J.:
Antecedents
Alfonso Juan P. Olondriz, Sr. (the decedent) died on June 9,
2003. He was survived by his widow, Ana Maria Ortigas de
Olondriz, and his children: Alfonso Juan O. Olondriz, Jr.,
Alejandro Marino O. Olondriz, Isabel Rosa O. Olondriz, Angelo
Jose O. Olondriz, and Francisco Javier Maria Bautista
Olondriz. His widow and children are collectively referred to as
the respondent heirs.
Believing that the decedent died intestate, the respondent
heirs filed a petition with the Las Pi�as RTC for the partition
of the decedent's estate and the appointment of a special
administrator on July 4, 2003. The case was raffled to Branch
254 and docketed as Sp. Proc. Case No. SP-03-0060.
On July 11, 2003, the RTC appointed Alfonso Juan O.
Olondriz, Jr. as special administrator.
However, on July 28, 2003, Iris Morales filed a separate
petition with the RTC alleging that the decedent left a will
dated July 23, 1991. Morales prayed for the probate of the will
and for hex appointment as special administratrix. Her petition
was also raffled to Branch 254 and docketed as Sp. Proc.
Case No. SP-03-0069.
The pertinent portions of the decedent's will
reads:chanRoblesvirtualLawlibrary
1. Upon my death, IRIS MORALES
OLONDRIZ shall be the executor hereof
and administrator of my estate until its
distribution in accordance herewith, x x x
2. My entire estate shall be divided into six
(6) parts to be distributed equally among
and between (1) IRIS MORALES
OLONDRIZ, my children (2) ALFONSO
JUAN OLONDRIZ, JR., (3) ALEJANDRO
OLONDRIZ, (4) ISABEL OLONDRIZ, (5)
ANGELO OLONDRIZ, and their mother (6)
MARIA ORTEGAS OLONDRIZ, SR.3
Notably, the will omitted Francisco Javier Maria Bautista
Olondriz, an illegitimate son of the decedent.
On September 1, 2003, Morales filed a manifestation in Sp.
Proc. Case No. SP-03-0060 and moved to suspend the
intestate proceedings in order to give way to the probate
proceedings in Sp. Proc. Case No. SP-03-0069. The
respondent heirs opposed Morales' motion for suspension and
her petition for allowance of the will.
On November 27, 2003, the RTC consolidated Sp. Proc. Case
No. SP-03-0060 with Sp. Proc. Case No. SP-03-0069.
173
On January 6, 2004, the respondent heirs moved to dismiss
the probate proceedings because Francisco was preterited
from the will.
On January 10, 2006, Morales agreed to the holding of an
evidentiary hearing to resolve the issue of preterition. Thus,
the RTC ordered the parties to submit their factual allegations
to support or negate the existence of preterition. Only the
respondent heirs complied with this order.
After several postponements at the instance of Morales, the
reception of evidence for the evidentiary hearing was
scheduled on May 29, 2006. However, Morales failed to
appear, effectively waiving her right to present evidence on the
issue of preterition.
On June 23, 2006, the RTC, through Judge Gloria Butay
Aglugub, suspended the intestate proceedings in Sp. Proc.
Case No. SP-03-0060 and set the case for probate. The RTC
reasoned that probate proceedings take precedence over
intestate proceedings.
The respondent heirs moved for reconsideration of the
suspension order but the RTC denied the motion on
September 1, 2006. The RTC also summarily revoked the
Letters of Administration previously issued to Alfonso Jr.
The respondent heirs moved for reconsideration of the
summary revocation of the Letters of Administration. They also
moved for the inhibition of Judge Aglugub of Branch 254.
On November 16, 2006, the RTC granted the motion for
inhibition. The case was transferred to Branch 253 presided
by Judge Salvador V. Timbang, Jr.
On July 12, 2007, the RTC resolved (1) the respondent heirs'
motion for reconsideration of the revocation of the Letters of
Administration and (2) Morales' motion to be appointed Special
Administratrix of the estate. The RTC noted that while testacy
is preferred over intestacy, courts will not hesitate to set aside
probate proceedings if it appears that the probate of the will
might become an idle ceremony because the will is intrinsically
void.
The RTC observed: (1) that Morales expressly admitted that
Francisco Javier Maria Bautista Olondriz is an heir of the
decedent; (2) that Francisco was clearly omitted from the will;
and (3) that based on the evidentiary hearings, Francisco was
clearly preterited. Thus, the RTC reinstated Alfonso Jr. as
administrator of the estate and ordered the case to proceed in
intestacy.
Morales moved for reconsideration which the RTC denied on
October 30, 2007, for lack of merit.
On February 7, 2008, Morales filed a petition for certiorari
against the orders of the RTC. Morales alleged that the RTC
acted with grave abuse of discretion in proceeding intestate
despite the existence of the will. The petition was docketed as
CA-G.R. SP No. 102358.
On May 27, 2011, the CA dismissed Morales' petition for
certiorari. The CA reasoned that while probate proceedings
174
take precedence over intestate proceedings, the preterition of
a compulsory heir in the direct line annuls the institution of
heirs in the will and opens the entire inheritance into intestate
succession.4 Thus, the continuation of the probate
proceedings would be superfluous and impractical because
the inheritance will be adjudicated intestate. The CA
concluded that the RTC did not act with grave abuse of
discretion.
Morales moved for reconsideration which the CA denied on
October 12, 2011. Hence, she filed the present petition for
review on certiorari on December 5, 2011.
The Petition
Morales maintains that the RTC committed grave abuse of
discretion when it ordered the case to proceed intestate
because: (1) the probate of a decedent's will is mandatory; (2)
the RTC Branch 254 already ordered the case to proceed into
probate; (3) the order setting the case for probate already
attained finality; (3) the probate court cannot touch on the
intrinsic validity of the will; and (4) there was no preterition
because Francisco received a house and lot inter vivos as an
advance on his legitime.
The respondent heirs counter: (1) that it is within the RTC's
jurisdiction to reverse or modify an interlocutory order setting
the case for probate; (2) that the petitioner failed to mention
that she did not appear in any of the evidentiary hearings to
disprove their allegation of preterition; (3) that the RTC and the
CA both found that Francisco was preterited from the will; and
(4) that Francisco's preterition annulled the institution of heirs
and opened the case into intestacy. They conclude that the
RTC did not exceed its jurisdiction or act with grave abuse of
discretion when it reinstated Alfonso Jr. as the administrator of
the estate and ordered the case to proceed intestate.
Our Ruling
We join the ruling of the CA.
Preterition consists in the omission of a compulsory heir from
the will, either because he is not named or, although he is
named as a father, son, etc., he is neither instituted as an heir
nor assigned any part of the estate without expressly being
disinherited - tacitly depriving the heir of his legitime.5
Preterition requires that the omission is total, meaning the heir
did not also receive any legacies, devises, or advances on his
legitime.6
In other words, preterition is the complete and total omission of
a compulsory heir from the testator's inheritance without the
heir's express disinheritance.
Article 854 of the Civil Code states the legal effects of
preterition:chanRoblesvirtualLawlibrary
Art. 854. The preterition or omission of one, some,
or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the
will or born after the death of the testator, shall
annul the institution of heir; but the devises and
legacies shall be valid insofar as they are not
inofficious.
175
 If the omitted compulsory heirs should die before
the testator, the institution shall be effectual,
without prejudice to the right of representation,
(emphasis supplied)
cralawlawlibrary
Under the Civil Code, the preterition of a compulsory heir in
the direct line shall annul the institution of heirs, but the
devises and legacies shall remain valid insofar as the legitimes
are not impaired. Consequently, if a will does not institute any
devisees or legatees, the preterition of a compulsory heir in
the direct line will result in total intestacy.7
In the present case, the decedent's will evidently omitted
Francisco Olondriz as an heir, legatee, or devisee. As the
decedent's illegitimate son, Francisco is a compulsory heir in
the direct line. Unless Morales could show otherwise,
Francisco's omission from the will leads to the conclusion of
his preterition.
During the proceedings in the RTC, Morales had the
opportunity to present evidence that Francisco received
donations inter vivos and advances on his legitime from the
decedent. However, Morales did not appear during the hearing
dates, effectively waiving her right to present evidence on the
issue. We cannot fault the RTC for reaching the reasonable
conclusion that there was preterition.
We will not entertain the petitioner's factual allegation that
Francisco was not preterited because this Court is not a trier of
facts. Furthermore, the CA concurred with the RTC's
conclusion. We see no cogent reason to deviate from the
factual findings of the lower courts.
The remaining question is whether it was proper for the RTC to
(1) pass upon the intrinsic validity of the will during probate
proceedings and (2) order the case to proceed intestate
because of preterition.
The general rule is that in probate proceedings, the scope of
the court's inquiry is limited to questions on the extrinsic
validity of the will; the probate court will only determine the
will's formal validity and due execution.8 However, this rule is
not inflexible and absolute.9 It is not beyond the probate court's
jurisdiction to pass upon the intrinsic validity of the will when
so warranted by exceptional circumstances.10 When practical
considerations demand that the intrinsic validity of the will be
passed upon even before it is probated, the probate court
should meet the issue.11
The decedent's will does not contain specific legacies or
devices and Francisco's preterition annulled the institution of
heirs. The annulment effectively caused the total abrogation of
the will, resulting in total intestacy of the inheritance.12 The
decedent's will, no matter how valid it may appear extrinsically,
is null and void. The conduct of separate proceedings to
determine the intrinsic validity of its testamentary provisions
would be superfluous. Thus, we cannot attribute error - much
less grave abuse of discretion - on the RTC for ordering the
case to proceed intestate.
Finally, there is no merit in the petitioner's argument that the
previous order setting the case for probate barred the RTC
from ordering the case to proceed intestate. The disputed
176
order is merely interlocutory and can never become final and
executory in the same manner that a final judgment does.13 An
interlocutory order does not result in res judicata.14 It remains
under the control of the court and can be modified or
rescinded at any time before final judgment.15

Certiorari is a limited form of review confined to errors of

jurisdiction. An error of jurisdiction is one where the officer or
tribunal acted without or in excess of its jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction.16 As discussed, it is well within the jurisdiction of
the probate court to pass upon the intrinsic validity of the will if
probate proceedings might become an idle ceremony due to
the nullity of the will.

On the other hand, grave abuse of discretion is the capricious

and whimsical exercise of judgment equivalent to an evasion
of positive duty, or a virtual refusal to act at all in contemplation
of the law.17 It is present when power is exercised in a despotic
manner by reason, for instance, of passion and hostility.
Morales failed to show that the RTC acted in such a capricious
and despotic manner that would have warranted the CA's
grant of her petition for certiorari. On the contrary, the RTC
acted appropriately in accordance with the law and
jurisprudence.cralaw-red

WHEREFORE, the petition is DISMISSED. Costs against the

petitioner.

SO ORDERED.

177
G.R. No. L-29300 June 21, 1978
PEDRO D. H. GALLANOSA, vs. HON. UBALDO Y.
ARCANGEL
AQUINO, J.:
In this special civil action of certiorari, filed on July 29, 1968,
the petitioners seek to annul the orders of respondent Judge
dated May 3 trial June 17, 1968, wherein he reconsidered his
order of January 10, 1968, dismissing, on the ground of
prescription, the complaint in Civil Case No. 2233 of the Court
of First Instance of Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon
left by Florentino Hitosis, with an estimated value of P50,000,
trial claims for damages exceeding one million pesos. The
undisputed facts are as follows:
1. Florentino Hitosis executed a will in the Bicol dialect on
June 19, 1938 when he was eighty years old. He died on May
26, 1939 at Irosin, Sorsogon. A childless widower, he as
survived by his brother, Leon Hitosis. His other brothers,
named Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio
and only sister, Teodora, were all dead.
2. On June 24, 1939 a petition for the probate of his will was
filed in the Court of First Instance of Sorsogon (Special
Proceeding No. 3171). The notice of hearing was duly
published. In that will, Florentino bequeathed his one-half
share in the conjugal estate to his second wife, Tecla
Dollentas, and, should Tecla predecease him, as was the
case, his one-half share would be assigned to the spouses
Pedro Gallanosa and Corazon Grecia, the reason being that
Pedro, Tecla's son by her first marriage, grew up under the
care of Florentino; he had treated Pedro as his foster child,
and Pedro has rendered services to Florentino and Tecla.
Florentino likewise bequeathed his separate properties
consisting of three parcels of abaca land and parcel of riceland
to his protege (sasacuyang ataman), Adolfo Fortajada, a
minor.
3. Opposition to the probate of the will was registered by the
testator's legal heirs, namely, his surviving brother, Leon, trial
his nephews trial nieces. After a hearing, wherein the
oppositors did not present any evidence in support of their
opposition, Judge Pablo S. Rivera, in his decision of October
27, 1939, admitted the will to probate and appointed Gallanosa
as executor. Judge Rivera specifically found that the testator
executed his last will "gozando de buena salud y facultades
mentales y no obrando en virtud de amenaza, fraude o
influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa
spouses trial Adolfo Fortajada, submitted a project of partition
covering sixty-one parcels of land located in various parts of
Sorsogon, large cattle trial several pieces of personal property
which were distributed in accordance with Florentino's will. The
heirs assumed the obligations of the estate amounting to
P7,129.27 in the portion of P2,376.42 for Adolfo Fortajada and
P4,752.85 for the Gallanosa spouses. The project of partition
was approved by Judge Doroteo Amador in his order of March
13, 1943, thus confirming the heirs' possession of their
respective shares. The testator's legal heirs did not appeal
178
from the decree of probate trial from the order of partition trial
distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of
Florentino's deceased brothers trial sisters instituted an action
in the Court of First Instance of Sorsogon against Pedro
Gallanosa for the recovery of the said sixty-one parcels of
land. They alleged that they, by themselves or through their
predecessors-in-interest, had been in continuous possession
of those lands en concepto de dueño trial that Gallanosa
entered those lands in 1951 trial asserted ownership over the
lands. They prayed that they be declared the owners of the
lands trial that they be restored to the possession thereof.
They also claimed damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of
cause of action trial on the ground of bar by the prior judgment
in the probate proceeding. Judge Anatolio C. Mañalac dismiss
the complaint on the ground of res judicata in his order of
August 14, 1952 wherein he said:
It also appears that the plaintiffs and/or their
predecessors-in-interest had intervened in the testate
proceedings in Civil Case No. 3171 of this Court for- the
purpose of contesting the probate of the will of (the) late
Florentino Hitosis; trial had their opposition prospered trial the
will denied of probate, the proceedings would have been
converted into one of intestacy (Art. 960 Civil Code) and the
settlement of the estate of the said deceased would have been
made in accordance with the provisions of law governing legal
or intestate succession ... , in which case the said plaintiffs, as
the nearest of kin or legal heirs of said Florentino Mitosis,
would have succeeded to the ownership and possession of the
61 parcels of land in question forming part of his estate (art.
1003, Civil Code).
However, the derision of the Court was adverse to them, when
it their opposition trial ordered the probate of his will. From this
decision (Annex K) legalizing the said will, the oppositors did
not file any appeal within the period fixed by law, despite the
fact that they were duly notified thereof, so that the said
decision had become final trial it now constitutes a bar to any
action that the plaintiffs may institute for the purpose of a
redetermination of their rights to inherit the properties of the
late Florentino Hitosis.
In other words, the said decision of this Court in Civil Case
special ) No. 3171, in which the herein plaintiffs or their
predecessors-in-interest had intervened as parties oppositors,
constitutes a final judicial determination of the issue that the
said plaintiffs, as ordinary heirs, have no legal rights to
succeed to any of the properties of the late Florentino Hitosis;
consequently, their present claim to the ownership trial
possession of the 61 parcels of land in question is without any
legal merit or basis.
7. The plaintiffs did not appeal from that order of dismissal
which should have set the matter at rest. But the same
plaintiffs or oppositors to the probate of the will, trial their heirs,
with a persistence befitting a more meritorious case, filed on
September 21, 1967, or fifteen years after the dismissal of
Civil Case No. 696 trial twenty-eight years after the probate of
the will another action in the same court against the Gallanosa
spouses trial Adolfo Fortajada for the "annulment" of the will of
Florentino Hitosis trial and for the recovery of the same
179
sixty-one parcels of land. They prayed for the appointment of a
receiver.
8. As basis of their complaint, they alleged that the Gallanosa
spouses, through fraud trial deceit, caused the execution trial
simulation of the document purporting to be the last will trial
testament of Florentino Hitosis. While in their 1952 complaint
the game plaintiffs alleged that they were in possession of the
lands in question, in their 1967 complaint they admitted that
since 1939, or from the death of Florentino Hitosis, the
defendants (now the petitioners) have been in possession of
the disputed lands (Par. XIV of the complaint, p. 70, Rollo in
Civil Case No. 555, Gubat Branch, which was transferred to
Branch I in Sorsogon town where Special Proceeding No.
3171 trial Civil Case No. 696 were decided trial which was
re-docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the
defendants, now the petitioners, was dismissed by respondent
Judge. The plaintiffs filed a motion for reconsideration
Respondent Judge. granted it trial set aside the order of
dismissal. He denied defendants' motion for the
reconsideration of his order setting aside that dismissal order.
The petitioners or the defendants below contend in this
certiorari case that the lower court has no jurisdiction to set
aside the 1939 decree of probate trial the 1952 order of
dismissal in Civil Case No. 696 trial that it acted with grave
abuse of discretion in not dismissing private respondents' 1967
complaint.
The issue is whether, under the facts set forth above, the
private respondents have a cause of action the "annulment" of
the will of Florentino Hitosis trial for the recovery of the
sixty-one parcels of land adjudicated under that will to the
petitioners.
We hold that the lower court committed a grave abuse of
discretion in reconsideration its order of dismissal trial in
ignoring the 1939 testamentary case trial the 1952 Civil Case
No. 696 which is the same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is
sufficient for an ordinary lawyer to conclude upon a causal
perusal of the 1967 complaint that it is baseless trial
unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial
testament duly probated in 1939 by the lower court itself. The
proceeding is coupled with an action to recover the lands
adjudicated to the defendants by the same court in 1943 by
virtue of the probated will, which action is a resuscitation of
The complaint of the same parties that the same court
dismissed in 1952.
It is evident from the allegations of the complaint trial from
defendants' motion to dismiss that plaintiffs' 1967 action is
barred by res judicata, a double-barrelled defense, trial by
prescription, acquisitive trial extinctive, or by what are known
in the jus civile trial the jus gentium as usucapio, longi
temporis possesio and praescriptio (See Ramos vs. Ramos,
L-19872, December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the
"annulment" of a will. In order that a will may take effect, it has
to be probated, legalized or allowed in the proper testamentary
180
proceeding. The probate of the will is mandatory (Art. 838,
Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of
Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs.
Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the
settlement of the testator's estate. A special proceeding is
distinct trial different from an ordinary action (Secs. 1 trial 2,
Rule 2 trial sec. 1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the
dismissal of plaintiffs' 1967 complaint, is a two-pronged
defense because (1) the 1939 trial 1943 decrees of probate
trial distribution in Special Proceeding No. 3171 trial (2) the
1952 order of dismissal in Civil Case No. 696 of the lower
court constitute bars by former judgment, Rule 39 of the Rules
of Court provides:
SEC. 49. Effect of judgments. — The effect of a judgment or
final order rendered by a court or judge of the Philippines,
having jurisdiction to pronounce the judgment or order, may be
as follows:
(a) In case of a judgment or order against a specific thing, or in
respect to the probate of a will or the administration of the
estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or
his relationship to another, the judgment or order is conclusive
upon the title to the thing the will or administration, or the
condition, status or relationship of the person; however, the
probate of a will or granting of letters of administration shall
only be prima facie evidence of the death of the testator or
intestate;
(b) In other cases the judgment or order is, with respect to the
matter directly adjudged or as to any other matter that could
have been raised in relation thereto, conclusive between the
parties trial their successors in interest by title subsequent to
the commencement of the action or special proceeding,
litigating of the same thing trial under the same title trial in the
same capacity;
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been
adjudged in a former judgment which appears upon its face to
have been so adjudged, or which was actually trial necessarily
included therein or necessary thereto.
The 1939 decree of probate is conclusive as to the due
execution or formal validity of the will (Sec. 625, Act 190, sec.
1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of
art. 838, Civil Code).
That means that the testator was of sound trial disposing mind
at the time when he executed the will and was not acting
under duress, menace, fraud, or undue influence; that the will
was signed by him in the presence of the required number of
witnesses, and that the will is genuine trial is not a forgery.
Accordingly, these facts cannot again be questioned in a
subsequent proceeding, not even in a criminal action for the
forgery of the will. (3 Moran's Comments on the Rules of
Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil.
448).
After the finality of the allowance of a will, the issue as to the
voluntariness of its execution cannot be raised anymore
181
(Santos vs. De Buenaventura, L-22797, September 22, 1966,
18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment
of a will" was not entertained after the decree of probate had
become final. That case is summarized as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died. His
will was admitted to probate without objection. No appeal was
taken from said order. It was admitted that due trial legal notice
had been given to all parties. Fifteen months after the date of
said order, a motion was presented in the lower court to have
said will declared null and void, for the reason that fraud had
been practised upon the deceased in the making of his will.
Held: That under section 625 of Act No. 190, the only time
given parties who are displeased with the order admitting to
probate a will, for an appeal is the time given for appeals in
ordinary actions; but without deciding whether or not an order
admitting a will to probate will be opened for fraud, after the
time allowed for an appeal has expired, when no appeal is
taken from an order probating a will, the heirs can not, in
subsequent litigation in the same proceedings, raise questions
relating to its due execution. The probate of a will is conclusive
as to its due execution trial as to the testamentary capacity of
The testator. (See Austria vs. Heirs of Ventenilla. 99 Phil.
1069).
On the other hand, the 1943 decree of adjudication rendered
by the trial court in the testate proceeding for the settlement of
the estate of Florentino Hitosis, having been rendered in a
proceeding in rem, is under the abovequoted section 49(a),
binding upon the whole world (Manalo vs. Paredes, 47 Phil.
938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs.
Potot, 120 Phil. 1361, 1364; McMaster vs. Hentry Reissmann
& Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be
interposed as res judicata with respect to private respondents'
complaint, The 1952 order of dismissal rendered by Judge
Mañalac in Civil Case No. 696, a judgment in personam was
an adjudication on the merits (Sec. 4, Rule 30, old Rules of
Court). It constitutes a bar by former judgment under the
aforequoted section 49(b) (Anticamara vs. Ong, L-29689. April
14, 1978).
The plaintiffs or private respondents did not even bother to ask
for the annulment of the testamentary proceeding trial the
proceeding in Civil Case No. 696. Obviously, they realized that
the final adjudications in those cases have the binding force of
res judicata and that there is no ground, nor is it timely, to ask
for the nullification of the final orders trial judgments in those
two cases.
It is a fundamental concept in the organization of every jural
system, a principle of public policy, that, at the risk of
occasional errors, judgments of courts should become final at
some definite date fixed by law. Interest rei publicae ut finis sit
litum. "The very object for which the courts were constituted
was to put an end to controversies." (Dy Cay vs. Crossfield
and O'Brien, 38 Phil. 521: Peñalosa vs. Tuason, 22 Phil, 303;
De la Cerna vs. Potot, supra).
After the period for seeking relief from a final order or
judgment under Rule 38 of the Rules of Court has expired, a
final judgment or order can be set aside only on the grounds of
182
(a) lack of jurisdiction or lack of due process of law or (b) that
the judgment was obtained by means of extrinsic or collateral
fraud. In the latter case, the period for annulling the judgment
is four years from the discovery of the fraud (2 Moran's
Comments on the Rules of Court, 1970 Edition, pp. 245-246;
Mauricio vs. Villanueva, 106 Phil. 1159).

To hurdle over the obstacle of prescription, the trial court,

naively adopting the theory of plaintiffs' counsel, held that the
action for the recovery of the lands had not prescribed
because the rule in article 1410 of the Civil Code, that "the
action or defense for the declaration of the inexistence of a
contract does not prescribe", applies to wills.

That ruling is a glaring error. Article 1410 cannot possibly

apply to last wills trial testaments. The trial court trial plaintiffs'
counsel relied upon the case of Dingle vs. Guillermo, 48 0. G.
4410, allegedly decided by this Court, which cited the ruling in
Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot
give efficacy to void contracts, a ruling elevated to the category
of a codal provision in article 1410. The Dingle case was
decided by the Court of Appeals. Even the trial court did not
take pains to verify the misrepresentation of plaintiffs' counsel
that the Dingle case was decided by this Court. An elementary
knowledge of civil law could have alerted the trial court to the
egregious error of plaintiffs' counsel in arguing that article 1410
applies to wills.

WHEREFORE, the lower court's orders of May 3 trial June 17,

1968 are reversed trial set aside trial its order of dismissal
dated January 10, 1968 is affirmed. Costs against the private
respondents. SO ORDERED.

183
G.R. No. 110427 February 24, 1997
The Incompetent, CARMEN CAÑIZA, represented by her
legal guardian, AMPARO EVANGELISTA, vs. COURT OF
APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA
and his wife, LEONORA ESTRADA,
NARVASA, C.J.:
On November 20, 1989, being then ninety-four (94) years of
age, Carmen Cañiza, a spinster, a retired pharmacist, and
former professor of the College of Chemistry and Pharmacy of
the University of the Philippines, was declared incompetent by
judgment1 of the Regional Trial Court of Quezon City, Branch
107,2 in a guardianship proceeding instituted by her niece,
Amparo A. Evangelista.3 She was so adjudged because of her
advanced age and physical infirmities which included cataracts
in both eyes and senile dementia. Amparo A. Evangelista was
appointed legal guardian of her person and estate.
Cañiza was the owner of a house and lot at No. 61 Tobias St.,
Quezon City. On September 17, 1990, her guardian Amparo
Evangelista commenced a suit in the Metropolitan Trial Court
(MetroTC) of Quezon City (Branch 35) to eject the spouses
Pedro and Leonora Estrada from said premises.4 The
complaint was later amended to identify the incompetent
Cañiza as plaintiff, suing through her legal guardian, Amparo
Evangelista.
The amended Complaint5 pertinently alleged that plaintiff
Cañiza was the absolute owner of the property in question,
covered by TCT No. 27147; that out of kindness, she had
allowed the Estrada Spouses, their children, grandchildren and
sons-in-law to temporarily reside in her house, rent-free; that
Cañiza already had urgent need of the house on account of
her advanced age and failing health, "so funds could be raised
to meet her expenses for support, maintenance and medical
treatment;" that through her guardian, Cañiza had asked the
Estradas verbally and in writing to vacate the house but they
had refused to do so; and that "by the defendants' act of
unlawfully depriving plaintiff of the possession of the house in
question, they . . (were) enriching themselves at the expense
of the incompetent, because, while they . . (were) saving
money by not paying any rent for the house, the incompetent .
. (was) losing much money as her house could not be rented
by others." Also alleged was that the complaint was "filed
within one (1) year from the date of of first letter of demand
dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared
that they had been living in Cañiza's house since the 1960's;
that in consideration of their faithful service they had been
considered by Cañiza as her own family, and the latter had in
fact executed a holographic will on September 4, 1988 by
which she "bequeathed" to the Estradas the house and lot in
question.
Judgment was rendered by the MetroTC on April 13, 1992 in
Cañiza's favor,6 the Estradas being ordered to vacate the
premises and pay Cañiza P5,000.00 by way of attorney's fees.
But on appeal,8 the decision was reversed by the Quezon City
Regional Trial Court, Branch 96.9 By judgment rendered on
October 21, 1992, 10 the RTC held that the "action by which
the issue of defendants' possession should be resolved is
accion publiciana, the obtaining factual and legal situation . .
184
demanding adjudication by such plenary action for recovery of
possession cognizable in the first instance by the Regional
Trial Court."
Cañiza sought to have the Court of Appeals reverse the
decision of October 21, 1992, but failed in that attempt. In a
decision 11 promulgated on June 2, 1993, the Appellate Court
12
affirmed the RTC's judgment in toto. It ruled that (a) the
proper remedy for Cañiza was indeed an accion publiciana in
the RTC, not an accion interdictal in the MetroTC, since the
"defendants have not been in the subject premises as mere
tenants or occupants by tolerance, they have been there as a
sort of adopted family of Carmen Cañiza," as evidenced by
what purports to be the holographic will of the plaintiff; and (b)
while "said will, unless and until it has passed probate by the
proper court, could not be the basis of defendants' claim to the
property, . . it is indicative of intent and desire on the part of
Carmen Cañiza that defendants are to remain and are to
continue in their occupancy and possession, so much so that
Cañiza's supervening incompetency can not be said to have
vested in her guardian the right or authority to drive the
defendants out." 13
Through her guardian, Cañiza came to this Court praying for
reversal of the Appellate Court's judgment. She contends in
the main that the latter erred in (a) holding that she should
have pursued an accion publiciana, and not an accion
interdictal; and in (b) giving much weight to "a xerox copy of an
alleged holographic will, which is irrelevant to this case." 14
In the responsive pleading filed by them on this Court's
requirement, 15 the Estradas insist that the case against them
was really not one of unlawful detainer; they argue that since
possession of the house had not been obtained by them by
any "contract, express or implied," as contemplated by Section
1, Rule 70 of the Rules of Court, their occupancy of the
premises could not be deemed one "terminable upon mere
demand (and hence never became unlawful) within the context
of the law." Neither could the suit against them be deemed one
of forcible entry, they add, because they had been occupying
the property with the prior consent of the "real owner," Carmen
Cañiza, which "occupancy can even ripen into full ownership
once the holographic will of petitioner Carmen Cañiza is
admitted to probate." They conclude, on those postulates, that
it is beyond the power of Cañiza's legal guardian to oust them
from the disputed premises.
Carmen Cañiza died on March 19, 1994, 16 and her heirs —
the aforementioned guardian, Amparo Evangelista, and
Ramon C. Nevado, her niece and nephew, respectively —
were by this Court's leave, substituted for her. 17
Three issues have to be resolved: (a) whether or not an
ejectment action is the appropriate judicial remedy for recovery
of possession of the property in dispute; (b) assuming
desahucio to be proper, whether or not Evangelista, as
Cañiza's legal guardian had authority to bring said action; and
(c) assuming an affirmative answer to both questions, whether
or not Evangelista may continue to represent Cañiza after the
latter's death.
I
It is axiomatic that what determines the nature of an action as
well as which court has jurisdiction over it, are the allegations
of the complaint and the character of the relief sought. 18 An
185
inquiry into the averments of the amended complaint in the
Court of origin is thus in order. 19
The amended Complaint alleges: 20
6. That the plaintiff Carmen Cañiza, is the sole and absolute
owner of a house and lot at No. 61 Scout Tobias, Quezon City,
which property is now the subject of this complaint;
xxx xxx xxx
9. That the defendants, their children, grandchildren and
sons-in-law, were allowed to live temporarily in the house of
plaintiff Carmen Cañiza, for free, out of her kindness;
10. That the plaintiff, through her legal guardian, has duly
notified the defendants, for them to vacate the said house, but
the two (2) letters of demand were ignored and the defendants
refused to vacate the same. . .
11. That the plaintiff, represented by her legal guardian,
Amparo Evangelista, made another demand on the
defendants for them to vacate the premises, before Barangay
Captain Angelina A. Diaz of Barangay Laging Handa, Quezon
City, but after two (2) conferences, the result was negative and
no settlement was reached. A photocopy of the Certification to
File Action dated July 4, 1990, issued by said Barangay
Captain is attached, marked Annex "D" and made an integral
part hereof;
12. That the plaintiff has given the defendants more than thirty
(30) days to vacate the house, but they still refused to vacate
the premises, and they are up to this time residing in the said
place;
13. That this complaint is filed within one (1) year from the
date of first letter of demand dated February 3, 1990 (Annex
"B") sent by the plaintiff to the defendants, by her legal
guardian — Amparo Evangelista;
14. By the defendants' act of unlawfully depriving the plaintiff
of the possession of the house in question, they are enriching
themselves at the expense of the incompetent plaintiff
because, while they are saving money by not paying any rent
for the house, the plaintiff is losing much money as her house
could not be rented by others;
15. That the plaintiff's health is failing and she needs the
house urgently, so that funds could be raised to meet her
expenses for her support, maintenance and medical treatment;
16. That because of defendants' refusal to vacate the house at
No. 61 Scout Tobias, Quezon City, the plaintiff, through her
legal guardian, was compelled to go to court for justice, and
she has to spend P10,000.00 as attorney's fees.
Its prayer 21 is quoted below:
WHEREFORE, in the interest of justice and the rule of law,
plaintiff, Carmen Cañiza, represented by her legal guardian,
Amparo Evangelista, respectfully prays to this Honorable
Court, to render judgment in favor of plaintiff and against the
defendants as follows:
1. To order the defendants, their children, grandchildren,
sons-in-law and other persons claiming under them, to vacate
the house and premises at No. 6 1 Scout Tobias, Quezon City,
186
so that its possession can be restored to the plaintiff Carmen
Cañiza; and
2. To pay attorney's fees in the amount of P10,000.00;
3. To pay the costs of the suit.
In essence, the amended complaint states:
1) that the Estradas were occupying Cañiza's house by
tolerance — having been "allowed to live temporarily . .
(therein) for free, out of . . (Cañiza's) kindness;"
2) that Cañiza needed the house "urgently" because her
"health . . (was) failing and she . . (needed) funds . . to meet
her expenses for her support, maintenance and medical
treatment;"
3) that through her general guardian, Cañiza requested the
Estradas several times, orally and in writing, to give back
possession of the house;
4) that the Estradas refused and continue to refuse to give
back the house to Cañiza, to her continuing prejudice; and
5) that the action was filed within one (1) year from the last
demand to vacate.
Undoubtedly, a cause of action for desahucio has been
adequately set out. It is settled that in an action for unlawful
detainer, it suffices to allege that the defendant is unlawfully
withholding possession from the plaintiff is deemed sufficient,
22
and a complaint for unlawful detainer is sufficient if it alleges
that the withholding of possession or the refusal to vacate is
unlawful without necessarily employing the terminology of the
law. 23
The Estradas' first proffered defense derives from a literal
construction of Section 1, Rule 70 of the Rules of Court which
inter alia authorizes the institution of an unlawful detainer suit
when "the possession of any land or building is unlawfully
withheld after the expiration or termination of the right to hold
possession, by virtue of any contract, express or implied."
They contend that since they did not acquire possession of the
property in question "by virtue of any contract, express or
implied" — they having been, to repeat, "allowed to live
temporarily . . (therein) for free, out of . . (Cañiza's) kindness"
— in no sense could there be an "expiration or termination of .
. (their) right to hold possession, by virtue of any contract,
express or implied." Nor would an action for forcible entry lie
against them, since there is no claim that they had "deprived
(Cañiza) of the possession of . . (her property) by force,
intimidation, threat, strategy, or stealth.
The argument is arrant sophistry. Cañiza's act of allowing the
Estradas to occupy her house, rent-free, did not create a
permanent and indefeasible right of possession in the latter's
favor. Common sense, and the most rudimentary sense of
fairness clearly require that that act of liberality be implicitly,
but no less certainly, accompanied by the necessary burden
on the Estradas of returning the house to Cañiza upon her
demand. More than once has this Court adjudged that a
person who occupies the land of another at the latter's
tolerance or permission without any contract between them is
necessarily bound by an implied promise that he will vacate
upon demand, failing which a summary action for ejectment is
187
the proper remedy against him. 24 The situation is not much
different from that of a tenant whose lease expires but who
continues in occupancy by tolerance of the owner, in which
case there is deemed to be an unlawful deprivation or
withholding of possession as of the date of the demand to
vacate. 25 In other words, one whose stay is merely tolerated
becomes a deforciant illegally occupying the land or property
the moment he is required to leave. 26 Thus, in Asset
Privatization Trust vs. Court of Appeals, 27 where a company,
having lawfully obtained possession of a plant upon its
undertaking to buy the same, refused to return it after failing to
fulfill its promise of payment despite demands, this Court held
that "(a)fter demand and its repudiation, . . (its) continuing
possession . . became illegal and the complaint for unlawful
detainer filed by the
. . (plant's owner) was its proper remedy.
It may not be amiss to point out in this connection that where
there had been more than one demand to vacate, the
one-year period for filing the complaint for unlawful detainer
must be reckoned from the date of the last demand, 28 the
reason being that the lessor has the option to waive his right of
action based on previous demands and let the lessee remain
meanwhile in the premises. 29 Now, the complaint filed by
Cañiza's guardian alleges that the same was "filed within one
(1) year from the date of the first letter of demand dated
February 3, 1990." Although this averment is not in accord with
law because there is in fact a second letter of demand to
vacate, dated February 27, 1990, the mistake is
inconsequential, since the complaint was actually filed on
September 17, 1990, well within one year from the second
(last) written demand to vacate.
The Estradas' possession of the house stemmed from the
owner's express permission. That permission was
subsequently withdrawn by the owner, as was her right; and it
is immaterial that the withdrawal was made through her judicial
guardian, the latter being indisputably clothed with authority to
do so. Nor is it of any consequence that Carmen Cañiza had
executed a will bequeathing the disputed property to the
Estradas; that circumstance did not give them the right to stay
in the premises after demand to vacate on the theory that they
might in future become owners thereof, that right of ownership
being at best inchoate, no transfer of ownership being possible
unless and until the will is duly probated.
Thus, at the time of the institution of the action of desahucio,
the Estradas had no legal right to the property, whether as
possessors by tolerance or sufferance, or as owners. They
could not claim the right of possession by sufferance; that had
been legally ended. They could not assert any right of
possession flowing from their ownership of the house; their
status as owners is dependent on the probate of the
holographic will by which the property had allegedly been
bequeathed to them — an event which still has to take place;
in other words, prior to the probate of the will, any assertion of
possession by them would be premature and inefficacious.
In any case, the only issue that could legitimately be raised
under the circumstances was that involving the Estradas'
possession by tolerance, i.e., possession de facto, not de jure.
It is therefore incorrect to postulate that the proper remedy for
Cañiza is not ejectment but accion publiciana, a plenary action
in the RTC or an action that is one for recovery of the right to
possession de jure.
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 II
The Estradas insist that the devise of the house to them by
Cañiza clearly denotes her intention that they remain in
possession thereof, and legally incapacitated her judicial
guardian, Amparo Evangelista, from evicting them therefrom,
since their ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the
testator's death, it may be changed or revoked; 30 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" (ART. 838,
id.). 31 An owner's intention to confer title in the future to
persons possessing property by his tolerance, is not
inconsistent with the former's taking back possession in the
meantime for any reason deemed sufficient. And that in this
case there was sufficient cause for the owner's resumption of
possession is apparent: she needed to generate income from
the house on account of the physical infirmities afflicting her,
arising from her extreme age.
Amparo Evangelista was appointed by a competent court the
general guardian of both the person and the estate of her aunt,
Carmen Cañiza. Her Letters of Guardianship 32 dated
December 19, 1989 clearly installed her as the "guardian over
the person and properties of the incompetent CARMEN
CANIZA with full authority to take possession of the property of
said incompetent in any province or provinces in which it may
be situated and to perform all other acts necessary for the
management of her properties . . " 33 By that appointment, it
became Evangelista's duty to care for her aunt's person, to
attend to her physical and spiritual needs, to assure her
well-being, with right to custody of her person in preference to
relatives and friends. 34 It also became her right and duty to get
possession of, and exercise control over, Cañiza's property,
both real and personal, it being recognized principle that the
ward has no right to possession or control of his property
during her incompetency. 35 That right to manage the ward's
estate carries with it the right to take possession thereof and
recover it from anyone who retains it, 36 and bring and defend
such actions as may be needful for this purpose. 37
Actually, in bringing the action of desahucio, Evangelista was
merely discharging the duty to attend to "the comfortable and
suitable maintenance of the ward" explicitly imposed on her by
Section 4, Rule 96 of the Rules of Court, viz.:
Sec. 4. Estate to be managed frugally, and proceeds applied to
maintenance of ward. — A guardian must manage the estate
of his ward frugally and without waste, and apply the income
and profits thereof, so far as maybe necessary, to the
comfortable and suitable maintenance of the ward and his
family, if there be any; and if such income and profits be
insufficient for that purpose, the guardian may sell or
encumber the real estate, upon being authorized by order to
do so, and apply to such of the proceeds as may be necessary
to such maintenance.
Finally, it may be pointed out in relation to the Estradas's
defenses in the ejectment action, that as the law now stands,
even when, in forcible entry and unlawful detainer cases, the
defendant raises the question of ownership in his pleadings
and the question of possession cannot be resolved without
deciding the issue of ownership, the Metropolitan Trial Courts,
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Municipal Trial Courts, and Municipal Circuit Trial Courts
nevertheless have the undoubted competence to resolve "the
issue of ownership . . only to determine the issue of
possession." 38
III
As already stated, Carmen Cañiza passed away during the
pendency of this appeal. The Estradas thereupon moved to
dismiss the petition, arguing that Cañiza's death automatically
terminated the guardianship, Amaparo Evangelista lost all
authority as her judicial guardian, and ceased to have legal
personality to represent her in the present appeal. The motion
is without merit.
While it is indeed well-established rule that the relationship of
guardian and ward is necessarily terminated by the death of
either the guardian or the ward, 39 the rule affords no
advantage to the Estradas. Amparo Evangelista, as niece of
Carmen Cañiza, is one of the latter's only two (2) surviving
heirs, the other being Cañiza's nephew, Ramon C. Nevado.
On their motion and by Resolution of this Court 40 of June 20,
1994, they were in fact substituted as parties in the appeal at
bar in place of the deceased, in accordance with Section 17,
Rule 3 of the Rules of Court, viz.: 41
Sec. 18. Death of a party. — After a party dies and the claim is
not thereby extinguished, the court shall order, upon proper
notice, the legal representative of the deceased to appear and
be substituted for the deceased within a period of thirty (30)
days, or within such time as may be granted. If the legal
representative fails to appear within said time, the court may
order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by
the court, and the representative shall immediately appear for
and on behalf of the interest of the deceased. The court
charges involved in procuring such appointment, if defrayed by
the opposing party, may be recovered as costs. The heirs of
the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint guardian ad litem for
the minor heirs.
To be sure, an ejectment case survives the death of a party.
Cañiza's demise did not extinguish the desahucio suit
instituted by her through her guardian. 42 That action, not being
a purely personal one, survived her death; her heirs have
taken her place and now represent her interests in the appeal
at bar.
WHEREFORE, the petition is GRANTED. The Decision of the
Court of Appeals promulgated on June 2, 1993 — affirming the
Regional Trial Court's judgment and dismissing petitioner's
petition for certiorari — is REVERSED and SET ASIDE, and
the Decision dated April 13, 1992 of the Metropolitan Trial
Court of Quezon City, Branch 35, in Civil Case No. 3410 is
REINSTATED and AFFIRMED. Costs against private
respondents.
SO ORDERED.
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