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#41 BASA vs. MERCADO G.R. No. L-42226, July 26, 1935 FACTS: Hon.

Hermogenes Reyes, Judge of Pampanga CFI, allowed and probated the last will and testament of Ines Basa, decedent. The same judge also approved the account of the administrator of the estate, declared him the only heir and closed the administration proceedings. Joaquin Basa, et al., filed a motion to reopen the proceedings, alleging that the court lacked jurisdiction because there was failure to comply with the requirements as to the publication of the notice of hearing. They contended that the hearing took place only twenty-one (21) days after the date of first publication instead of three full weeks. Moreover, they questioned whether Ing Katipunan, the newspaper where the notice was published was a newspaper of general circulation as contemplated by the law. ISSUEs:

Whether or not there was compliance with the publication requirement Whether or not Ing Katipunan is a newspaper of general circulation HELD: The language used in section 630 of the Code of Civil Procedure does not mean that the notice, referred to therein, should be published for three full weeks before the date set for the hearing of the will. In other words, the first publication of the notice need not be made 21 days before the day appointed for the hearing. The records show that Ing Katipunan is a newspaper of general circulation in view of the fact that it is published for the dissemination of local news and general information; that it has a bona fide subscription list of paying subscribers; that it is published at regular intervals and that the trial court ordered the publication to be made in Ing Katipunan precisely because it was a newspaper of general circulation in the Province of Pampanga.

#42 DE ARANZ vs. GALING (161 scra 628) Doctrine: Failure to effect personal notification to legatees deprives the probate court of jurisdiction. FACTS: Joaqin Infante (RESPONDENT) filed a petition at the RTC of Pasig for the probate of the will of Monseratt Infante Y Pola. His petition named several individuals (PETITIONERS) with the surname Infante-

Roxasas legatees and devisees. Thereafter, the probate court issued an order for the requisite hearing and the judge complied with the mandatory three week publication of the order. Come hearing date, no oppositor appeared and so the judge reset the hearing date. No oppositor made manifestation on the later date, compelling the judge to request for the submission of evidence exparte. Joaquin Infante immediately presented evidence that same fateful day. He called a lone witness to the stand. Two days passed and the ten Petitioners made an appearance contesting the probate on the ground that no notice was ever sent to them. They requeste d ten days to file an opposition. Petitioners assert that failure to notify the legatees/devisees deprives the court of jurisdiction. Joaqin Infante opposed the opposition and garnered the affirmation of both the RTC and the CA. The petition to deny probate was therefore denied. ISSUE: Whether or not probate may proceed despite the failure of personal notice to the legatees/devisees? HELD: No. The probate proceedings was mired in procedural lapses which deprived the court of jurisdiction. The pertinent rule follows: Sec. 4, Rule 76 of the Rules of Court reads: SEC. 4.Heirs, devisees, legatees, and executors to be notified by mail or personally. The court s h a l l a l s o c a u s e c o p i e s o f t h e n o t i c e o f t h e t i m e a n d p l a c e f i x e d f o r p r o v i n g t h e w i l l t o b e addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing. The CAs ruling that notification was merely a matter of convenience sits in stark disregard of the law which makes notice mandatory. Probate is a proceeding in rem and for the validity of such

proceedings personal notice or by publication or both to all interested parties must be made. The will and the alleged p r o b a t e t h e r e o f cannot be said to have been done in acco rdance w i t h t h e a c c e p t e d b a s i c a n d fundamental concepts and principles followed in the probate and allowance of wills. The Supreme Court remanded the case to the RTC for further proceedings after nullifying the CA.

#43 MANINANG V COURT OF APPEALS G.R.No. L-57848; June 19, 1982 FACTS Soledad Maninang filed a petition with the CFI-Quezon City for the probate of the holographic will of Clemencia Aseneta who instituted her and her husband as heirs. Later on, Bernardo Aseneta (herein private respondent), claiming to be the adopted child of the deceased and her sole heir instituted intestate proceedings with the CFI-Rizal. The two cases were consolidated with the latter court. Bernardo filed a motion to dismiss the testate case on the ground that the will was null and void because he, being the only compulsory heir, was preterited; thus, intestacy should ensue. In her opposition, Soledad averred that the courts area of inquiry is limited to an examination of and resolution on the extrinsic validity of the will and that Bernardo was effectively disinherited by the decedent. The motion was granted. The motion for reconsideration by Soledad Maninang was denied for lack of merit. In the same order, the court appointed Bernardo Aseneta as administrator considering he is a forced heir and is not shown to be unfit to perform the trust.

Soledad Maninang filed petition for certiorari with the Court of Appeals. It was denied. Hence, this petition was filed. ISSUE Was the dismissal of the court a quo of the testate case proper? RULING No, it was not proper. Probate of a will is mandatory as required by law and public policy. Ordinarily, the probate of the will does not look into its intrinsic validity; but on the extrinsic validity which includes the capacity of the testator to make a will and the compliance with the requisites or solemnities which the law prescribes for the validity of wills. However, when practical considerations demand, the intrinsic validity of the will may be passed upon like when on its face there is really preterition or invalid disinheritance making the will void. The probate might become an idle ceremony if on its face it appears to be intrinsically void. Such would shorten the proceedings if the issues are decided as early as during the probate proceedings. In the instant case, there is still doubt to the alleged preterition or disinheritance of the private respondent cannot be clearly seen on the face of the will and needs further determination which can only be made if the will is allowed to be probated. DISPOSITION The decision of the court a quo is set aside. Case is remanded for further proceedings.

#44 Acain v. IAC GR No. 72706, October 27, 1987 Facts: In 1960, Nemesio Acain wrote a will giving all his properties to his brother Segundo, or, in case Segundo predeceases Nemesio, to Segundos children. Segundo died before Nemesio. Petitioner Constantino is one of Segundos children. In 1984, after the death of Nemesio, Constantino petitioned the court to have the will probated. This was opposed by Rosa Diongson, Nemesios wife, and Virginia Fernandez, a legally adopted child of Nemesio and Rosa. The opposition was denied by the trial court, hence Diongson and Fernandez went to the SC, which transferred the case to the CA. The CA ordered the trial court to dismiss the probate petition since Diongson and Fernandez were preterited. Constantino went to the SC on certiorari, contending that the CA could not rule on the intrinsic validity of the will before it is admitted for probate. Diongson and Fernandez opposed, contending that certiorari is not a proper remedy. Issues: 1. Whether or not certiorari is a proper remedy. 2. Whether or not probate courts (the CA in this case) could rule on the intrinsic validity of a will before the will is probated. 3. Whether or not Diongson was preterited. 4. Whether or not Fernandez was preterited. Rulings:

1. Yes, certiorari is a proper remedy. The existence of the remedy of appeal does not preclude certiorari, if appeal would not afford speedy and adequate relief. 2. Yes. For practical considerations [???], the CA should be allowed to rule on the intrinsic validity of a will before the will was probated. If the probate of the will is allowed when on its face the will appears to be intrinsically void would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. 3. No. Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. 4. Yes. Her legal adoption by the Nemesio has not been questioned by Constantino. Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.

Case#45 Cabang vs Delfinado 34 PHIL 291 (1916) This is an appeal from a judgment of the Court of First Instance of the Province of Pangasinan, probating a document purporting to be the last will and testament of the deceased Celestino Delfinado. Facts: Martin Delfinado, son of Celestino Delfinado to his first marriage filed an opposition to the allowance of the will, alleging that the will was not signed by the deceased, nor by any other person, in his presence and by his express direction, and that the attestation does not comply with law. The case proceeded to trial, the petitioner presenting as witnesses the widow Dorotea Cabang, Antonio Flor Mata, and Paciano Romero, the latter being one of the subscribing witnesses. The opposition called only one witness, Martin Delfinado. The petitioner presented a motion asking that the case be reopened for the purpose of receiving the testimony of the other two subscribing witnesses, who were then living in Manila and Nueva Ecija. No reason whatever appears in the record why these witnesses were not present and no question was raised either in the court below or in this court with reference to the consideration by the trial court to the testimony taken upon the first hearing. So it must be presumed that the petitioner did not desire to present these two witnesses and that she had no objection to the consideration of the testimony already taken.

Whether or not the court erred in admitting the will to probate without having two of the subscribing witnesses called, although they were living within the jurisdiction of the court, or for not requiring any showing why they were not produced.

The judgment appealed from is reversed. The rule that no will shall be valid to pass any estate, real or personal, unless "attested and subscribed by three or more credible witnesses," is a matter of substantive law and an element of the will's validity. The rule that the attesting witnesses must be called to prove a will for probate is one of preference made so by statute. In proving the contested will at Tayug only one attestor was presented, although the record showed that the other two were living, one in Manila and the other in Nueva Ecija. It was an error to admit the will to probate

without calling all the attesting witnesses or requiring a showing that they could not be obtained. This rule of evidence is not to be confused with rules of quantity. There have been several reasons given for this rule of preference for the attesting witnesses, one reason being that the party opposing the claim of proper execution of the will has a right to the benefit of cross-examining the attesting witnesses as to fraud, duress, or other matters of defense. The law places these witnesses "around the testator to ascertain and judge of his capacity" for the purpose of preventing frauds. The soundness of the rule is well illustrated in the case under consideration. Here the attesting clause was omitted and the testator signed by mark. The due execution of the will is still doubtful and concludes that the proponent did not comply with the provisions of the law in the presentation of her case.

residents of the City of Manila. The deceased left no ascendants or descendants and under the dispositions of the will the greater part of the estate will go to the petitioner Vicente Aldanese and his sister Enriqueta. The petition for the probate of the will was presented to the Court of First Instance of Cebu and was by order of the court set down for hearing. After due publication of the order Canuto, Teodora, Feliciano and Raymundo Salutillo and Valeria Llanos appeared as opponents and asked that the hearing of the case be continued until July 14, 1924. The petitioner presented a motion asking the court to authorize the taking of the depositions of the witnesses to the will on the ground that being residents of the City of Manila said witnesses were unable to appear personally before the Court of First Instance of Cebu. Judge Recto granted the motion and continued the hearing. Upon the petitioner presented his motion for authorization to take the depositions, the opponents filed the amended opposition that the said will be disallowed. The opponents presented a motion asking that the order authorizing the taking of the depositions be revoked and it was granted on the ground that it had not been sufficiently shown that it was impossible for the witnesses to appear personally before the court and that therefore their depositions would be inadmissible in evidence. By agreement between the parties the hearing of the petition for probate of the will was further continued. The attorney for the petitioner notified the attorneys for the opponents that the depositions of the witnesses would be taken before the notary public. This notification was received by the attorneys. The depositions of all three witnesses were taken at the time and place stated in the notification and the opponents failed to appear.The petition for probate was finally heard and the depositions were duly presented but were ruled out by the court there being no other sufficient evidence of the execution of the will, the petition was denied. ISSUE: Whether or not the depositions in question were inadmissible as evidence in the probate proceedings. RULING: The rule prevailing in this jurisdiction is that when a will is contested the attesting witnesses must be called to prove the will or a showing must be made that they cannot be had, but that does not necessarily mean that they must be brought bodily before the court. It is their testimony which is needed and not their actual personal presence in the court room.

CASE #46 ALDANESE VS SALUTILLO This is an appeal from an order of the Court of First Instance of Cebu denying the probate of a document alleged to be the last will and testament of the deceased Salome Avila. FACTS: Salome Avila, a widow, a resident of Sibonga, Cebu died on May 24, 1924 in the Municipality of San Juan del Monte, Rizal Province. The will is dated May 3, 1924, appears to be executed in due form and is witnessed by R.M. de Moreta, Jose U. Borromeo and Estanislao Rafols, all

In the present case, the will was presented for probate in Cebu; the attesting witnesses were living in Manila and were beyond the process of the court for compulsory attendance. They were called to testify and produced before an officer legally authorized to take their testimony in the form of depositions. The notice required by section 361,supra, was duly given and the opponents given the opportunity to be present and to cross-examine the witnesses. In the circumstances, this must certainly be considered a sufficient "calling" of the witnesses and satisfies the law. The depositions in question appear to be in due form and would ordinarily be admissible, but the record indicates that the failure of the opponents to be presented at the examination of the witnesses was due to the fact that they were misled by the petitioner's action in seeking special authorization from the court for the taking of the depositions. In the interest of justice we therefore think that the depositions should be retaken and the opponents given another opportunity to examine the witnesses. #47 Vda. De Ramos vs CA FACTS: Petitioner Nista, claiming as one of the instituted heirs, filed a petition for the probate of the will and codicil of the late Eugenia Danila before the probate court. Petitioner de Ramos et al., also claiming as instituted heirs moved to intervene in the proceedings w/c was granted by the probate court. Respondents Buenaventura and Marcelina, the adopted children of the testator, filed an opposition to the petition. The RTC allowed the probate, of the will on the ground that the will and codicil were duly executed in accordance w/ the formalities prescribed by law. On appeal, the CA reversed the RTC decision. Hence, the petition w/ the SC. ISSUE: Whether or not the will and codicil were executed in accordance with the formalities prescribed by law, considering that two (2) of the attesting witnesses testified against due execution.

RULING: The will and codicil were duly executed in accordance with the formalities prescribed by law. As a rule, if any or all of the submitting witnesses testify against the due execution of the will the will may be allowed if the court is satisfied from the testimony of other witnesses and the evidence presented. The notary public, atty barcenas, testified to the due execution of the will and that the appellate court failed to consider the presumption of regularity where there were no incidents of anomaly brought before the trial court. One final point, the absence of photograph of the testator Eugenia Danila in the act of singing her will does not belie the probability that the testatrix signed the will. The probate of a will is a proceeding not imbued with adverse character, wherein courts should relax the rules on evidence to the end that nothing less than the best evidence of which the matter is susceptible should be presented to the court before a reported will may be probate or denied probate.

presumption arise where it is shown that the testator had ready access to the will and it cannot be found after has death.

#48 Gago v. Mamuyac FACTS: Francisco Gago commenced the present action to secure the probation of Miguel Mamuyacs will dated 16th day of April, 1919. To said petition, Cornelio Mamuyac, Lariosa, Bauzon, and catalina Mamuyac presented their oppositions. The RTC denied the probation of said will on the ground that the same had been cancelled and revoked in the year 1920, and that the last will presented to court was a mere carbon copy of its original. ISSUE: Whether or not the law requires any evidence of the revocation or cancellation of a will to be preserved? RULING: The law does not require any evidence of the revocation or cancellation of a will to be preserved. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is in the absence of other competent evidence, that the same was cancelled or destroyed. The same

#49 TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositorappellee. G.R. No. L-12190, August 30, 1958 FACTS: On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila. On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased. Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, refused toprobate the alleged will. A seventypage motion for reconsideration failed. Hence this appeal. ISSUE: WON a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? HELD:

NO. The court ruled that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The loss of the holographic will entails the loss of the only medium of proof. Even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11. #50 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant,vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. Luciano A. Joson for petitioner-appellant. Cesar Paralejo for oppositor-appellee G.R. No. L-58509 December 7, 1982 FACTS: On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla. The Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence. ISSUE: Whether or not a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. RULING:

If the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

#51 Azuela vs CA Facts: 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. 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.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. Oppositor Geralda Castillo argued that the will was not executed and attested to in accordance with law.After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 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.Hence, the present petition. Issue: Whether or not the can be probated? Ruling: The Supreme Court ruled in the negative and affirmed the decision of the appellate court. It held that 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. 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. 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.