G.R. No. 157451 December 16, 2005 LETICIA VALMONTE vs. JOSEFINA C. VALMONTE, Respondent. 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 Decision 2 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 petitioners 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 ORTEGA, Petitioner,

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: 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; 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 te stators 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 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 testators 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 Leticias family to live with him and they took care of him. During that time, the testators 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 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 CAs allowance of the probate of the will of Placido Valmonte. This Courts Ruling The Petition has no merit. Main Issue:

Probate of a Will 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; (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." In the present case, petitioner assails the validity of Placido Valmontes will by imputing fraud in its execution and challenging the testators 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 testators 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.19Furthermore, the testator and 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. 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. "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 testators 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 areAFFIRMED. Costs against petitioner. SO ORDERED.

G.R. No. L-24665 October 13, 1926 Estate of the deceased Isidra Abquilan. ATANASIO ABQUILAN, petitioner-appellant, vs. FELICIANA ABQUILAN, opponent-appellee. Simeon Bitanga and Vicente Sotto for appellant. R. Nolan and Feria and La O for appellee. STREET, J.: This appeal has been brought to reverse an order of the Court of First Instance of the Province of Occidental Negros, refusing to legalize an instrument (Exhibit A) purporting to be the last will and testament of Isidra Abquilan, deceased. It appears that the deceased left no forced heirs, and her only heirs, in case of intestacy, are her brother, Atanasio Abquilan, the proponent of the will, and Feliciana Abquilan, a sister, who is the opponents. Upon hearing the cause the trial court found that the document propounded as the will of the deceased is apocryphal, that the purported signatures of the deceased to the supposed will are forgeries, and that the instrument in question was not executed by the deceased. He therefore denied probate, and the proponent appealed. We have carefully examined the evidence, and upon repeated perusal of the appealed decision, we find that the conclusions of fact stated therein are so completely in harmony with our own view of the case, that no new exposition of the facts is necessary. A clear preponderance of the evidence shows that on November 6, 1924, the date when the will purports to have been executed, the supposed testatrix was not in a condition such as to enable her to have participated in the act, she being in fact at that time suffering from paralysis to celebral hemorrhage in such degree as completely to discapacitate her for intelligent participation in the act of making a will. A careful comparison of the name of the testatrix as signed in two places to the Exhibit A, with many of her authentic signatures leads to the conclusion that the signatures to the supposed will were made by some other person. Furthermore, the combined testimony of Juan Serato and Alejandro Genito completely demonstrate in our opinion that no will at all was made on November 6, the date attributed to the questioned document, and that, instead an attempt was made on the night of that day to fabricate another will, which failed of completion because of the refusal of Alejandro Genito to be party to the making of a will in which the testatrix took no part. The instrument before us was undoubtedly fabricated later,

probably on November 7, at a time when the condition of the deceased was such as to make rational participation on her part in the act of making a will impossible. The judgment appealed from will be affirmed, and it is so ordered, with costs against the appellant. G.R. No. L-39033 November 13, 1933

In re will of the late Matea Abella. MONS. SANTIAGO SANCHO, applicant-appellee, vs. MARCIANA ABELLA, opponent-appellant. Sotto and B. Quitoriano for appellee. Astilla for appellant.

VILLA-REAL, J.: This is an appeal taken by the opponent Marciana Abella from the judgment rendered by the Court of First Instance of Ilocos Sur, the dispositive part of which reads as follows: Wherefore, this court is of the opinion, and so holds, that the opposition filed by Marciana Abella is without merit and, therefore, it is hereby denied. The application filed herein is granted and the document, Exhibit A, is hereby ordered and decreed probated as the last will and testament of the late Matea Abella. So ordered. In support of her appeal, the appellant assigns the following alleged errors in the decision of the court a quo, to wit: 1. The lower court erred in holding that Matea Abella was in the full enjoyment of her mental faculties and executed the document, Exhibit A, as a true expression of her last will. 2. The lower court erred in holding that the requirements of the law have been complied with in the execution of the will, Exhibit A. 3. The lower court erred in holding that when the late Matea Abella affixed her alleged signatures to the will, Exhibit A, she did not act under the illegal and undue influence of certain legatees. 4. The lower court erred in decreeing the probate of the will, Exhibit A.

The following facts have been proven by a preponderance of evidence presented during the trial, to wit: The testatrix, Matea Abella, resident of the municipality of Sinait, Ilocos Sur, had been informed that Dr. Antonio Querol of San Fernando La Union, was a good physician. On April 13, 1932, she left her home situated in the said municipality of Sinait, accompanied by her niece, Filomena Inay, to consult the said physician in his clinic in San Fernando, La Union, stopping at the convent of the parish church of the said municipality, in charge of Father Cordero with whom she was acquainted he having been the parish priest of Sinait. During her stay in the said convent, she went to Dr. Antonio Querol's clinic twice within the period of one week accompanied by her aforesaid niece, Filomena Inay, to consult the said physician who, after submitting her to a general medical examination, found that she was suffering from dyspepsia and cancer of the stomach. On or about April 26, 1932, Matea Abella ordered a sexton of the convent to call Attorney Teodoro R. Reinoso to whom she expressed her desire to make a will, in the presence of the Father Cordero's sister, Father Zoilo Aguda, Macario Calug and the fiscal of the convent. Inasmuch as the aforesaid attorney had to attend to other business, he could not finish his interview with the testatrix on the first day and had to continue it the following day, also in the presence of Father Cordero, his sister, Filomena Inay and some children who were then at the convent. Inasmuch as he did not finish the interview on the second day, the said attorney returned again on the afternoon of the 28th and continued it in the presence of the same persons who entered and left the sala. At the end of the interview, Matea Abella ordered he niece, Filomena Inay, to bring her some papers which were in her trunk, which she delivered to the said attorney. After the will had been drafted in Ilocano, the dialect of the testatrix, Macario Calug read it to her and she approved it. When the will had been copied clean, it was again read to the testatrix and she express her approval thereof, but inasmuch as it was rather late at night, she did not care to sign the same suggesting that it be postponed to the following day, April 29, 1932, which was done. At about 7:30 o'clock on the morning of April 29, 1932, the signing of the will took place in the corridor of the convent. The testatrix Matea Abella was the first to sign it on a table in the presence of each and every one of the instrumental witnesses thereto and of other persons, including Father Cordero. After the testatrix, each of the instrument witnesses signed in the presence of the testatrix and of each and every one of the other witnesses. After the will had been signed, Attorney Teodoro R. Reinoso delivered the original and the copies thereof to the testatrix, retaining one for his file. On July 3, 1932, Matea Abella died of the senile debility in the municipality of Sinait at the age of 88 years. The opponent herein attempted to prove that the testatrix was deaf and that her eyesight was defective; that when one moved away from her and again approached her she was unable to recognize him; that it was necessary to shout into her ear to call her for meals; that she used to urinate on her clothes without being aware of it; that she had a very poor memory inasmuch as she used to try to collect from her debtors in spite of the fact that they had already paid their debts; that once, although she had sold a parcel

of land for P60 she said she had sold it for P160; that she was unable to go downstairs without assistance; that when she was called at mealtime she used to answer: "Why, I have already eaten"; that she could not remember her properties nor the names of her tenants; that she could no longer read; that she often repeated to her tenants the same questions regarding their crops; that she had been suffering from the disabilities for more than two months previous to her death; that the deceased complained of headache and of stomachache; that she already began to be dotty five years before, and particularly a few days previous to her death; that in her will she bequeathed properties which she had already donated to other persons. We are face to face with two divergent theories regarding the mental state of the testatrix Matea Abella at the time of the execution of her will, Exhibit A. The opponent claims that, inasmuch as the testatrix was 88 years of age when she made her will, she was already suffering from senile debility and therefore her mental faculties were not functioning normally anymore and that she was not fully aware of her acts. As an indication of her senile debility, she attempted to prove that the testatrix had very poor memory in connection with her properties and interest; that she could not go downstairs without assistance, and that she could not recall her recent acts. On the other hand, as to the mental sanity of the testatrix at the time of the execution of her will, we have the undisputed fact of her having left her home in Sinait, Ilocos Sur, on April 13, 1932, in order to go to San Fernando, La Union, to consult Dr. Antonio Querol of whose ability she had heard so much regarding her headaches and stomach trouble, stopping at the convent of the parish church; the fact of her having walked twice to the aforesaid doctor's clinic, accompanied by her niece, Filomena Inay; the fact that she had personally furnished the aforesaid doctor with all the necessary data regarding the history of her illness the fact of her having brought with her in her trunk the deeds to her properties; the fact of her having called for Attorney Teodoro R. Reinoso; the fact of her having personally furnished said attorney all the data she wished to embody in her relative to her properties and the persons in whose favor she wished to bequeath them; the fact of her not wishing to sign her will on the night of April 28, 1932, but the following day, in order to be able to see it better, and the fact of her having affixed her signature, in her own handwriting, to the original as well as to the copies of her will which consisted of nine pages. All these data show that the testatrix was not so physically weak, nor so blind, nor so deaf, nor so lacking in intelligence that she could not, with full understanding thereof, dispose of her properties and make a will. Neither senile debility, nor blindness, nor deafness, nor poor memory, is by itself sufficient to incapacitate a person for making his ill (Avelino vs. De la Cruz, 21 Phil., 521; Bagtas vs. Paguio, 22 Phil., 227; Jocson vs. Jocson, 46 Phil., 701; Amata and Almojuela vs. Tablizo, 48 Phil., 485; Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772; 28 R.C.L., p. 94, par. 44). The mere fact that in her will Matea Abella disposed of properties, which she had already donated to other persons at a prior date, is not an indication of mental insanity. At most it constitutes forgetfulness or a change of mind, due to ignorance of the irrevocability of certain donations.lawphil.net

It is insinuated that the testatrix has been unduly influenced in the execution of her will. There is nothing in the records establishing such claim either directly or indirectly. The fact of her having stopped at the convent of the parish church of San Fernando, La Union, is not unusual in the Philippines where, due to lack of hotels, the town convents are usually given preference by strangers because they are given better accommodations and allowed more freedom. In the present case, the testatrix Matea Abella was a stranger in San Fernando, La Union. Inasmuch as Father Cordero, the parish priest of the said town, was well known to her having served in the church of Sinait, Ilocos Sur, in the same capacity, she did not have any difficulties in obtaining accommodations in his convent. The fact that Matea Abella stopped at a convent and enjoyed the hospitality of a priest who gave her accommodations therein, nor the fact that the will was executed in the convent in question in the presence of the parish priest and witnessed by another priest, could certainly not be considered as an influence which placed her under the obligation to bequeath of her property to the bishop of said diocese. In view of the foregoing considerations, we are of the opinion and so hold: (1) That neither senile ability, nor deafness, nor blindness, nor poor memory, is by itself sufficient to establish the presumption that the person suffering therefrom is not in the full enjoyment of his mental faculties, when there is sufficient evidence of his mental sanity at the time of the execution of the will; and (2) that neither the fact of her being given accommodations in a convent, nor the presence of the parish priest, nor a priest acting as a witness, constitutes undue influence sufficient to justify the annulment of a legacy in favor of the bishop of a diocese made in her will by a testatrix 88 years of age, suffering from defective eyesight and hearing, while she is stopping at a convent within the aforestated diocese. Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the costs against the appellant. So ordered.

G.R. Nos. L-46430-31 July 30, 1979 FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY PROVINCE, petitioners, vs. COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO ALSUA, represented by his guardian, CLOTILDE S. ALSUA and PABLO ALSUA, respondents. Rafael Triumfante for petitioners. Sabido-Sabido & Associates and Madrid Law Office for private respondents.

GUERRERO, J.:1wph1.t This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. Nos. 54492-R and 54493-R which reversed the decision of the Court of First Instance of Albay allowing the probate of the win of Don Jesus Alsua in Special Proceedings No. 699 and dismissing the complaint in Civil Case 3068 after declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The respondent court 1 denied the probate of the will, declared null and void the two sales subject of the complaint and ordered the defendants, petitioners herein, to pay damages to the plaintiffs, now the private respondents, the sum of Five Thousand Pesos (P5,000.00), to render an accounting of the properties in their possession and to reimburse the latter the net gain in the proportion that appertains to them in the properties from the date of the firing of the complaint up to complete restoration plus Fifty Thousand Pesos (P50,000.00) as attorney's fees and costs. The antecedent events leading to the filing of these two consolidated actions are the following. On November 25, 1949, Don Jesus Alsua and his wife, Do;a Florentina Rella, both of Ligao, Albay, together with all their living children, Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this judicial guardian Clotilde Samson, and Amparo Alsua de Buenviaje, entered into a duly notarized agreement, Escritura de Particion Extrajudicial (Exhibit 8), over the then present and existing properties of the spouses Don Jesus and Do;a Florentina enumerated in a prepared inventory, Exhibit 8-A, the essential features of which are stated in private respondents' Brief, pp. 26-29, to wit: t.hqw (1) Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses, which inventory consists of 97 pages, all of them signed by the spouses and all the above named heirs in the left margin of every page (parafo primers). (2) An acknowledgment of the spouses that all the properties described in the inventory (Annex A) are conjugal properties with the exception of five parcels of land Identified with the figures of 1 to 5 and 30 shares of San Miguel Brewery stock which are paraphernal properties of the late Do;a Tinay (segundo parafo). (3) An acknowledgment that during their marriage, they had nine children but five of them died minors, unmarried (parafo tercero y cuatro). (4) An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to avoid Possible misunderstanding among their children concerning the inheritance they are entitled to in the event of death of one of them they have decided to effectuate an extrajudicial partition of all the

properties described in Annex "A" thereto under the following terms and conditions: (Parafo quinto): To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with the improvements thereon specifically described from pages 1-12 of said inventory or, 34 parcels of land with a total land area of 5,720,364 sq. meters, with a book or appraised value of P69,740.00. To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the improvements thereon specifically described from pages 12-20 of said inventory or, 26 parcels of land with a total land area of 5,679,262 sq. meters, with a book or appraised value of P55,940.00. To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with the improvements thereon specifically described from pages 20-33 of said inventory or, 47 parcels of land with a total land area of 6,639,810 sq. meters, with a book or appraised value of P89,300.00. To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties with the improvements thereon specifically described from pages 33-47 of said inventory or, 47 parcels of land with a total land area of 5,630,715 sq. meters, with a book or appraised value of P58,830.00. t.hqw (a) Each and every one of the heirs named above acknowledge and admit that the totality of the properties allotted and adjudicated to the heirs as described in the preceding paragraph, constitute one half of the properties described in Annex "A", including any amount of cash deposited. (b) That all the heirs acknowledge and admit that all the properties assigned to them as their hereditary portion represent one-half not only of the conjugal properties but includes the paraphernal properties waiving now and forever any complaint or claim they have or they may have concerning the amount, value, extension and location of the properties that are allotted to each and everyone. They also waive any claim they have or they may have over the remaining portion of the properties, which spouses reserved for themselves. (c) That in case of death of one of the spouses, each and everyone of the heirs acknowledge that the properties which are left in the possession of the surviving spouse, including any amount in cash, are even less than the one- half that should correspond in absolute ownership as his legitimate participation in the conjugal properties. In consequence they waive any claim that they have or may have over said portion of said properties or any amount in cash during the lifetime of the surviving spouse, including any right or claim they have or they may have over the paraphernal properties of Do;a Tinay in the event the surviving spouse is Don Jesus.

(d) The spouses on their part in case of death of any one of them, the surviving spouse waives any claim he or she may have over the properties assigned or adjudicated to the heirs under and by virtue of this deed. The properties which were reserved for them (the spouses) should be considered as his or her legitimate participation in the conjugal properties and the fair compensation of his or her usufruct on the properties that the surviving spouse reserved for himself or herself which shag be distributed in equal shares among the heirs upon his or her death unless said properties of some of them have been disposed of during the lifetime of the surviving spouse. (e) Any heir who may dare question the validity and legitimacy of the provision contained herein shall be under obligation to pay to the other heirs, in the concept of damages and prejudice, the sum of P5,000.00 plus attorney's fees. (f) The provisions of this deed shall bind the successors of the herein heirs. (g) In the event of death of one of the spouses, the properties assigned or adjudicated to each and everyone of the heirs shall be considered as his share or participation in the estate or as his inheritance left by the deceased and each heir shall become the absolute owner of the properties adjudicated to him under this deed. On January 5, 1955, Don Jesus and Do;a Florentina, also known as Do;a Tinay separately executed their respective holographic wills (Exhs. 6-B and 7-B), the provisions of which were in conformity and in implementation of the extrajudicial partition of November 25, 1949. Their holographic wills similarly provided for the institution of the other to his or her share in the conjugal properties, the other half of the conjugal assets having been partitioned to constitute their legitime among their four living children in the Extrajudicial Partition of 1949. The wigs also declared that in the event of future acquisitions of other properties by either of them, one-half thereof would belong to the other spouse, and the other half shall be divided equally among the four children. The holographic will of Do;a Tinay written in Spanish reads, as translated: t.hqw TESTAMENT I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua, resident of and with postal address in the Municipality of Ligao, Province of Albay, Philippines, being in the full possession of my mental and physical faculties freely and spontaneously execute this my last will and testament in my handwriting and signed by me and expressed in the Spanish language which I speak, write and understand, this 5th day

of January, 1955 in the Municipality of Ligao, Province of Albay, and in which I ordain and provide: First: That in or about the year 1906 I was married to my husband Don Jesus Alsua and begot nine (9) children with him, four (4) of whom are still living and they are Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. The other five (5) died during their minority, single and without children. Second: That after my marriage to my husband Don Jesus Alsua and during our conjugal union, and as a result of our efforts and industry, we were able to acquire conjugal properties consisting of abaca (abales) and cacao lands and urban lands registered in the office of the Registry of Property of the Province of Albay and in the City of Manila. Third: That I institute as my heirs with right to inherit the following- my spouse Don Jesus Alsua, one-half (1/2) of my properties, real and personal, and the other half, to my children Francisco Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando Alsua, married to Clotilde Samson, and Amparo Alsua, married to Fernando Buenviaje, in equal parts. It is to be understood, however, that the other half that corresponds as legitime to my above named children have already been given to them, pursuant to a document dated November 25, 1949 and ratified on the same day, month and year before Notary Public Segundo G. Flores (Reg. No. 525; Pag. 15; Lib. 11; Series of 1949) enjoining each and everyone of them to respect and faithfully comply with each and every clause contained in the said document. Fourth: That should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in above par. 3 in the same proportion that is, one-half (1 1/2) to my spouse; and the other half to my children in equal parts. Fifth: That I name as my executor my husband Don Jesus Alsua without having to post any bond. IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines. t.hqw (SGD.) FLORENTINA DE ALSUA (Joint Record on appeal pp. 420-423, CA-G.R. No. 54492-R)

R.

As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the same day, Jan. 5, 1955 in exactly the same terms and conditions as the above will of his wife. On May 21, 1956, the spouses Don Jesus and Do;a Tinay filed before the Court of First Instance of Albay their respective petitions for the probate of their respective holographic wins which were docketed as Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special Proceedings No. 485 (Do;a Florentina Ralla de Alsua, Petitioner). On August 14, 1956, the spouses Don Jesus and Do;a Tinay executed their mutual and reciprocal codicils amending and supplementing their respective holographic wins. Again, the codicils similarly acknowledged and provided that one-half of all the properties of the spouses, conjugal and paraphernal, had been disposed of, conveyed to and partitioned among their legitimate heirs in the "Escritura de Particion" of November 25, 1949, but that they reserved for themselves (the spouses Don Jesus and Do;a Tinay) the other half or those not disposed of to the said legitimate heirs under the above agreement of partition, and that they mutually and reciprocally bequeathed unto each other their participation therein as well as in all properties which might be acquired subsequently. Each spouse also declared that should she or he be the surviving spouse, whatever belongs to him or her or would pertain to him or her, would be divided equally among the four children. It was also declared in both codicils that upon the death of either of the spouses, the surviving spouse was designated mutually and reciprocally as the executor or administrator of all the properties reserved for themselves. The codicil executed translated: t.hqw CODICIL This codicil supplements and amends the preceding testament. That my spouse and I have agreed to divide the properties which we have acquired into 2 parts. The 1/2 that would correspond to me covers all the properties that I have partitioned among my children in the Document of Partition dated November 25, 1949 before Notary Public Segundo G. Flores, Jr. (Doc. No. 525; Pag. No. 15; Lib. No. 11; Series of 1949) (and) even as the properties which by reason of this testament I leave to my husband as his share and the other half that corresponds to my husband constitutes an the properties that up to now have not been disposed of, particularly the urban lands situated in Legaspi, Albay, Ligao of the Province of Albay and in the City of Manila, with the exception of that portion that I bequeath to my husband as his inheritance and his legitimate. That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and my children Francisco Alsua, Pablo Alsua, Fernando Alsua and by Do;a Tinay, written in Spanish reads, as

Amparo Alsua. I leave to my aforecited children all the properties described in the above mentioned Document of Partition dated November 25, 1949 which correspond to each one of them and in the profits (fruits) expressed in the same, and in the event that the properties granted to one or any of my children should exceed in quantity or value those corresponding to another or others, I hereby declare that it is my will that the same be divided among my children as their inheritance from the free portion of my property. I leave to my spouse Don Jesus Alsua as his legitime and as Ws inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document. In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertain to me or would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death. Ligao, Albay, Philippines, August 14,1956. t.hqw (SGD.) FLORENTINA RALLA DE ALSUA (joint Record on Appeal pp. 423-425, CA-G.R. No. 54492-R) And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate but similar codicil in exactly the same terms and conditions as the above codicil of his wife. Also on the same day of August 14, 1956, the spouses Don Jesus and Do;a Tinay both filed their respective supplemental petitions for the probate of their respective codicils in the probate proceedings earlier filed. On February 19, 1957, their respective holographic wins and the codicils thereto were duly admitted to probate. Upon the death of Do;a Tinay on October 2, 1959, Don Jesus was named executor to serve without bond in an order issued by the probate court on October 13, 1959. Letters testamentary having been issued in favor of Don Jesus, he took his oath of office and performed his duties as such until July 1, 1960. Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the presence of his bookkeeper and secretary, Esteban P. Ramirez, whom he instructed to make a list of all his remaining properties with their corresponding descriptions. His lawyer, Atty. Gregorio imperial Sr. was then instructed to draft a new will which was duly signed by Don Jesus and his attesting witnesses on November 14, 1959 at Ms home in Ligao, Albay. This notarial will and testament (Exh. A) of Don Jesus

executed on November 14, 1959 had three essential features: (a) it expressly cancelled, revoked and annulled all the provisions of Don Jesus' holographic will of January 5, 1955 and his codicil of August 14, 1956; (b) it provided for the collation of all his properties donated to his four living children by virtue of the "Escritura de Particion Extra. judicial" of 1949, and that such properties be taken into account in the partition of his estate among the children; and (c) it instituted his children as legatees/devisees of certain specific properties, and as to the rest of the properties and whatever may be subsequently acquired in the future, before his death, were to be given to Francisca and Pablo, naming Francesca as executrix to serve without a bond. After all debts, funeral charges and other expenses of the estate of Do;a Tinay had been paid, all her heirs including Don Jesus, submitted to the probate court for approval a deed of partition executed on December 19, 1959 (Exh. 7-Q) and which essentially confirmed the provisions of the partition of 1949, the holographic will and codicil of Do;a Tinay. On July 6, 1960, the court approved the partition of 1959 and on January 6, 1961 declared the termination of the proceedings on the estate of Do;a Tinay. On May 6,1964, Don Jesus Alsua died. On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of November 14, 1959, filed a petition for the probate of said new will of Don Jesus Alsua before the Court of First Instance of Albay and was docketed as Special Proceedings No. 699. Oppositions thereto were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde Samson, on the following grounds: (a) that Don Jesus was not of sound and disposing mind at the time of the execution of the alleged will; (b) that the will was executed under duress or influence of fear or threats; or it was procured by undue and improper pressure and influence on the part of the main beneficiaries and of person or persons in collusion with them, or the signature of the testator was secured by or thru fraud; (c) that the will was not executed according to the formal requirements of the law; and (d) that the alleged will subject of probate contravened the Extrajudicial Partition of 1949 agreed upon by him, his deceased spouse, Do;a Tinay, and all his children, Francisco, Pablo, Amparo and Fernando thru his judicial guardian Clotilde Samson, and also contravened Don Jesus' own probated holographic will and codicil of 1955 and 1956, respectively, essentially confirming and implementing the said partition of 1949 which had already been partially executed by all the signatories thereto in the partition of the estate of Do;a Tinay in December, 1959. On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the Probate Court appointed her Administratrix of the estate of her late father, Don Jesus Alsua. She then filed with the Probate Court an inventory of the properties of the estate which, according to the oppositors therein (the private respondents now) did not include some properties appearing in the agreement of November 25. 1949 or in the inventory attached thereto as Annex "A" and in the "Escritura de Particion" of December 19, 1959 as belonging to or should pertain to Don Jesus. According to the oppositors, these properties consist of thirty- three (33) premium agricultural lots with a total land area of 1,187,970 square meters, or approximately 119 hectares and with a total

assessed value of P48,410.00 or a probable total market value of P238,000.00 at only P2,000.00 per hectare, and four (4) commercial urban lots Ideally located in the business section of Legazpi City including the lot and the building presently occupied by the well-known "Mayon Hotel" with an assessed value of approximately P117,260.00 or a probable market value at the time of P469,040.00. It appearing from the new will that these properties were bequeathed to Pablo Alsua and Francisco Alsua-Betts, specifically, 3 parcels of the 33 agricultural lands to Pablo and the rest to Francisco, the oppositors also raised in issue the non-inclusion of said properties in the inventory of the estate of their late father. In answer, Francisco claimed ownership over the same, alleging that she bought the properties from their father and presenting the two Deeds of Sale now being assailed, one dated August 26, 1961 purporting to show the sale of the 33 parcels of agricultural land to Francisco by their father for the price of P70,000.00 and the other dated November 26, 1962 evidencing the sale of the four urban lots for the sum of P80,000.00. Claiming fraud in the sales, the oppositors filed Civil Case No. 3068, seeking the annulment of the aforesaid two deeds of sale, with damages, which upon agreement of the parties was then jointly heard and tried with Special Proceedings No. 699 for probate of the Last Will and Testament of Don Jesus executed on November 14, 1959. After a joint hearing of the merits of these two cases, the Court of First Instance of Albay promulgated a decision on January 15, 1973, the dispositive portion of which states: t.hqw WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit: 1. In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will executed by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had been marked as Exhibit A, consisting of nine (9) pages, and orders that the same be made the basis for division and distribution of the estate of said testator; 2. In Civil Case 3068, the Court hereby dismisses the complaint and holds that the sale on August 26, 1961 (Exh. U) and the sale on November 26, 1962 (Exh. W), are lawful and valid sales and accordingly conveyed title to the VENDEE thereof. The Plaintiffs in Civil Case 3068. are ordered jointly and severally to pay to the defendant, Francisco Alsua Betts Fifty Thousand Pesos (P50,000.00) as damages and Fifty Thousand (P50,000.00) Pesos for attorney's fees or a total of One Hundred Thousand Pesos (P100,000.00) and to pay the costs. On appeal by herein respondents to the Court of Appeals, the court reversed the appealed decision in a judgment rendered on April 4, 1977, the dispositive portion of which states, as translated, thus t.hqw

IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it hereby sets aside the decision appealed from in the following manner: (1) in Special Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil Case No. 3068, Exhs. U and W and the titles issued on the basis thereof are hereby declared null and void, ordering the appellees Francisco Alsua and Joseph Betts to pay to the plaintiffs in the concept of fixed damages, the sum of P5,000.00 and to render an accounting of properties in their possession and to reimburse the plaintiffs the net gain, in the proportion that appertains to them in the properties subject of litigation in Civil Case No. 3068 from the date of the filing of this complaint, up to the complete restoration of the properties pertaining to (plaintiffs) pursuant to Article 2208 of the New Civil Code, paragraph 11, ordering them in addition to pay to the plaintiffs and oppositors the sum of P50,000.00 as attorney's fees, and the costs. Hence, the petition at bar assailing the respondent court's decision on four assigned errors, to wit: t.hqw I. The respondent Court of Appeals erred in not affirming the findings of the probate court (Special Proceedings No. 699) that private respondents, oppositors to the probate of the will, are in estoppel to question the competence of testator Don Jesus Alsua. II. The respondent Court of Appeals grossly erred in holding that testator Don Jesus Alsua cannot revoke his previous will. III. The respondent court's finding is grounded entirely on speculation, surmises or conjectures resulting in a gross misapprehension of facts. IV. The respondent court grossly erred in annulling the sales of August 26, 1961 (Exh. U), and of November 26, 1962 (Exh. W). On the first issue of estoppel raised in the assignment of errors, We hold that the same is of no moment. The controversy as to the competency or incompetency of Don Jesus Alsua to execute his will cannot be determined by acts of the herein private respondents as oppositors to the will in formally agreeing in writing jointly with the petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be appointed by the court executor of the will of their mother in Special Proceedings No. 485, Testate Estate of Do;a Florentina Ralla de Alsua and in subsequently petitioning the court not to require Don Jesus Alsua to file any accounting as executor in the proceedings, which petitioners claim and was upheld by the trial court as constituting estoppel on the part of the private respondents from questioning the competence of Don Jesus Alsua. The principle of estoppel is not applicable in probate proceedings, a ruling laid down in the case of Testate Estate of the Late Procopia Apostol Benedicta Obispo, et al vs. Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L. Reyes, an eminent and

recognized authority on Civil Law when he was still in the Court of Appeals, and We quote:t.hqw Finally, probate proceedings involve public interest, and the application therein of the rile of estoppel, when it win block the ascertainment of the truth as to the circumstances surrounding the execution of a testament, would seem inimical to public policy. Over and above the interest of private parties is that of the state to see that testamentary dispositions be carried out if, and only if, executed conformably to law. The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502: t.hqw 'The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes, which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act. One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a deceased person (Matter of Watson's Wilt 262 N.Y., 284, 294, 186, N.E., 787; Matter of Marriman's Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126, Henderson, S., Matter of Draske's Estate, 160 Misc. 587, 593, 290, N.Y.S., 581). To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburgh's Estate, 164 Misc. 295, 298, N.Y.S., 219.' The next issue that commands Our attention is whether the respondent court erred in not allowing the probate of the last will and testament of Don Jesus Alsua. Petitioners claim that the disallowance was based on speculations, surmises or conjectures, disregarding the facts as found by the trial court. The Civil Court is very clear and explicit in providing the cases where a will may be disallowed under Article 839 which provides as follows: t.hqw 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 wilt at the time of its execution; (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. The issue under consideration appears to Us to have been answered by the respondent court itself when it accepted the findings of the trial court on the due execution of the questioned will and testament of Don Jesus, declaring: t.hqw ... and going back to the previous question, whether the questioned will and testament of November 14, 1959, Exh. A, was executed in accordance with Arts. 805-809 of the New Civil Code, this Tribunal from the very beginning accepts the findings of the inferior court concerning the question, t.hqw On October 2, 1959, Do;a Florentina died at Ligao, Albay. About 2 weeks after said death of his wife, Don Jesus Alsua decided to make a new will, thereby revoking and cancelling his previous holographic will which he made on January 5, 1955 and also its codicil dated August 14, 1956. In the presence of his bookkeeper and secretary, Esteban P. Ramirez, he crossed out in ink each and every page of said page he wrote on each page the word "cancelado", and affixed his signature thereon (Exh V-5, V-6, consecutively up to and including Exh. V-14). He then instructed Ramirez to make a list of all s properties with their corresponding descriptions. Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the latter came accompanied by his son, Atty. Jorge S, Imperial, who, incidentally, is now a judge of the Court of First Instance of Naga City, Camarines Sur. Don Jesus informed his lawyers that he wanted to make a new will, and accordingly gave more detailed instructions as to how he wanted to divide his properties among his four

children. He handed to them a list and on the left he indicated the name of the child to whom the listed properties shall pertain. Atty. Jorge Imperial took notes of the instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major language, as in fact his conversations with Don Gregorio are always in Spanish. A few days before November 14, 1959, Atty. Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and after reading it Don Jesus said that it was as directed by him, and after making a few minor corrections, he instructed Atty. Jorge S. Imperial to put the win in final form. He further told Atty, Jorge Imperial that the signing of the will should be at his home in Ligao, in the morning of November 14, 1959, and that the witnesses should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose Madarieta who is a friend of the family; and Mr. Jose Gaya who is a sort of employee of Don Jesus. Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S. Imperial, riding in a sedan, stopped at the Legaspi residence of Mr. Ramon Balana, and informed the latter that Don Jesus was requesting him to be one of the attesting witnesses to his will. Mr. Balana, having a very high regard for Don Jesus, considered it an honor to be so asked, and gladly went with the Imperials. They arrived at the residence of Don Jesus at Ligao; Albay, almost ten o'clock of that morning, and they were ushered in by Mr. Jose Gaya, and the latter requested them to be seated at the usual receiving room on the ground floor while he announced their arrival to Don Jesus who was on the second floor. Soon Don Jesus came down, carrying with him the will to be signed placed inside a cartolina folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and immediately joined them in conversation. Mr. Gaya called for Mr. Jose Madarieta, whose residence is just across the road from the house of Don Jesus. Mr. Madarieta was already informed by Don Jesus himself about the fact of signing the will that morning, and so, on being advised by Mr. Gaya that the Imperials had already arrived, Madarieta proceeded to the residence of Don Jesus, without much delay. With the coming of Madarieta and the coming back of Gaya, there were now six people gathered in the living room, namely: Don Jesus Alsua, Don Gregorio Imperial Atty. Jorge S. Imperial Mr. Ramon Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who testified for the petitioner declared that Don Jesus was in bright and lively conversation which ran

from problems of farming and the merits of French-made wines. At 1 1:00 o'clock, Don Gregorio made a remark that it is about time to do what they were there for, and this was followed by a more or less statement from Jesus, who said: t.hqw 'Preisamente es por lo que he Hamado a ustedes que esten presentes para ser testigos de rni ultimo voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui conmigo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo cuatro (4) hijos todos egos.' (pp. 43-44, t.s.n., hearing of December 7, 1967, Sarte. On request of Don Jesus, all of them moved to the big round table on another part of the same sala for convenience in signing because there were chairs all around this table. The will which consisted of nine pages, with a duplicate, and triplicate was laid on the round table and the signing began, with Atty. Jorge S. Imperial assisting each person signing by indicating the proper place where the signature shall be written. Don Jesus, as testator, signed first. After signing the original and the two other sets, the three sets were then passed to Mr. Ramon Balana who signed as attesting witness. After Mr. Balana, Mr. Jose Madarieta signed next as another attesting witness, and when Mr. Madarieta finished signing all the three sets, the same were passed to Mr. Jose Gaya who also signed as the third attesting witness. On each of the three sets, Don Jesus signed ten times, one on the margin of each of the nine pages, and at the end of the instrument proper. Each of the three attesting witnesses (Balana, Madarieta and Gaya) signed eleven times on each set, one on the margin of each of the nine pages, one at the end of the instrument proper and one below the attestation clause. The original will was marked as Exh. A (or set A); the duplicate as Exh. K (or set K) and the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr. Gaya were Identified by Mr. Balana, Mr. Madarieta and Atty. (now Judge) imperial. It was also clearly established that when Don Jesus signed the will Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and witnessed said signing, and that when each of these three witnesses was signing, Don Jesus

and the two other attesting witnesses were present and Witnessing said Signing. The signing by the testator and the attesting witnesses having been completed, Atty. Jorge S. Imperial as Notary Public with commission for the entire province of Albay, notarized the wilt and sealed it with his notarial seat which seal he brought along that morning. After all the three sets were notarized, they were all given back to Don Jesus who placed them inside the same folder. At that moment, it was already about 12:30 P.M. and Don Jesus invited all of them to lunch, which invitation was gladly accepted by all of then-L (pp. 474-480, Joint Record on Appeal in CA-G.R. No. 54492-R) which findings are supported by the evidence, - it is quite difficult to conclude that the same had not complied with the requirements of Arts. 804- 806 of the New Civil Code. ... (CA Decision, pp. 13-16, as translated). This cited portion of the appealed decision accepts as a fact that the findings of the lower court declaring the contested will as having been executed with all the formal requirements of a valid will, are supported by the evidence. This finding is conclusive upon this Tribunal and We cannot alter, review or revise the same. Hence, there is no further need for Us to dwell on the matter as both the lower court and the respondent appellate court have declared that these are the facts and such facts are fully borne and supported by the records. We find no error in the conclusion arrived at that the contested will was duly executed in accordance with law. We rule that the questioned last will and testament of Don Jesus Alsua fully complied with the formal requirements of the law. Respondent court, however, denied probate of the will after ,'noting certain details which were a little bit difficult to reconcile with the ordinary course of things and of life." First was the fact that the spouses Don Jesus and Do;a Tinay together with their four children Francisco, Pablo, Amparo and Fernando had executed the Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal properties of the spouses between the spouses themselves and the children under the terms and conditions and dispositions herein before stated and to implement its provisions, Don Jesus and Do;a Tinay subsequently executed separately their respective holographic wigs both dated January 5, 1955 and codicils dated August 14, 1956 with the same terms and conditions as reproduced herein earlier. Both holographic wills and codicils having been probated thereafter and upon the death of Do;a Tinay, Don Jesus was appointed executor of the will and in due time the partition of the properties or estate of Do;a Tinay was approved by the probate court on July 6, 1960. The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable contract which was binding on Don Jesus Alsua as the surviving spouse, barring him from violating said partition agreement, barring him from revoking his

holographic will of January 5, 1955 and his codicil of August 14, 1956, and further barring him from executing his new will and testament of November 14, 1959, now the subject of the probate proceedings elevated to this Court. We do not agree with this ruling of the Court of Appeals. We hold that the Extrajudicial Partition of November 25, 1949 is null and void under Article 1056 in relation to Article 1271 of the old Civil Code which are applicable hereto. These Articles provide as follows: t.hqw Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs. ... Art. 1271. All things, even future ones, which are not excluded from the commerce of man, may be the subject-matter of contracts. Nevertheless, no contract may be entered into with respect to future inheritances, except those the object of which is to make a division inter vivos of an estate, in accordance with Article 1056. All services not contrary to law or to good morals may also be the subjectmatter of contract. Article 1056 specifically uses the word "testator" from which the clear intent of the law may be deduced that the privilege of partitioning one's estate by acts inter vivos is restricted only to one who has made a prior will or testament. In other words, Article 1056 being an exception cannot be given a wider scope as to include in the exception any person whether he has made a will or not. Respondent court citing the same Article concluded that under both the old and new Civil Code, a person who executes a will is permitted at the same time or a little thereafter or even before as long as he mentions this fact in the will, to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code. The court further added that jurisprudence is to the effect that the partition presupposes the execution of the will that it ratifies or effectuates, citing the case of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the extrajudicial partition of November 14, 1949 was ratified in the holographic will executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956. Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the Supreme Court categorically declared the necessity of a prior will before the testator can partition his properties among his heirs, and We quote the pertinent portions of the decision: t.hqw

The first question to decide in the instant appeal is whether the partition made by Sabina Almadin of her property among her nieces, the defendants and appellants herein, was valid and enforceable. Article 1056 of the Civil Code provides: Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs. The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the following doctrine: Considering that the language of article 1056 cannot be interpreted to mean that a person may, by acts inter vivos, partition his property referred to in the section wherein said article is found, without the authority of a testament containing an expression of his last will, or the authority of law, for, otherwise, a partition thus made would be tantamount to making a will in a manner not provided for, authorized, nor included in the chapter referring to testaments, and especially, to the forms thereof, which is entirely different from the legal consequences of a free disposition made by parents during their lifetime, whereby they give to their children the whole or a part of their property; Considering that, inasmuch as the second paragraph of article 1271 makes reference to the aforesaid article, in providing that no contracts may be entered into with respect to future inheritances except those the object of which is to make a division inter vivos of the estate in accordance with article 1056, it is evident that said difference likewise leads to the conclusion that a partition thus made should be on the basis of a testamentary or legal succession and should be made in conformity with the fundamental rules thereof and the order of the heirs entitled to the estate, because neither of the two provisions could be given a wider meaning or scope than that they simply provide for the division of the estate during the lifetime of the owner, which, otherwise, would have to be done upon the death of the testator in order to carry into effect the partition of the estate among the persons interested. Manresa comments on the same article as follows: A distinction must be made between the disposition of property and its division; and the provision of article 1056 authorizing the testator to dispose of his property by acts inter vivos or by last will, must be understood in accordance with this distinction. The Idea is to divide the estate among the heirs designated by the testator. This designation constitutes the disposition of the properties to take effect after his death,

and said act must necessarily appear in the testament because it is the expression of the testator's last will and must be surrounded by appropriate formalities. Then comes the second part, to wit, the division in conformity with that disposition, and the testator may make this division in the same will or in another will, or by an act inter vivos. With these words, the law, in article 1056 as well as in article 1057, which we shall hereafter examine, makes allusion to the forms or manner of making the partition and not to the effects thereof, which means that, for purposes of partition the formal solemnities which must accompany every testament or last will are not necessary. Neither is it necessary to observe the special for. realities required in case of donations, because it is not a matter of disposing gratuitously of properties, but of dividing those which already have been legally disposed of. It is thus seen that both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition his property, but he must first make a will with all the formalities provided for by law. And it could not be otherwise, for without a will there can be no testator; when the law, therefore, speaks of the partition inter vivos made by a testator of his property, it necessarily refers to that property which he has devised to his heirs. A person who disposes of his property gratis inter vivos is not called a testator, but a donor. In employing the word "testator," the law evidently desired to distinguish between one who freely donates his property in life and one who disposes of it by will to take effect after his death. We are not in conformity with the holding of the respondent court that the extrajudicial partition of November 25, 1949 which under the old Civil Code was expressly prohibited as against public policy had been validly ratified by the holographic will of Don Jesus executed on January 5, 1955 and his codicil of August 14, 1956. Such a holding of the appellate court that a person who executes a will is permitted to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code even before executing his will as long as he mentions this fact in the will, is not warranted under the ruling of Legasto vs. Verzosa, supra and the commentary of Manresa as quoted above. We rule, therefore, that the respondent court erred in denying probate to the will of Don Jesus dated November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial partition of 1949 was contractually bound by the provisions thereof and hence could not revoke his participation therein by the simple expedience of making a new will with contrary provisions or dispositions. It is an error because the so-called extrajudicial partition of 1949 is void and inoperative as a partition; neither is it a valid or enforceable contract because it involved future inheritance; it may only be given effect as a donation inter vivos of specific properties to the heirs made by the parents. Considering that the document, the extrajudicial partition of November 25, 1949, contained specific designation of properties allotted to each child, We rule that there was substantial compliance with the rules on donations inter vivos under the old Civil

Code (Article 633). On the other hand, there could have been no valid donation to the children of the other half reserved as the free portion of Don Jesus and Do;a Tinay which, as stated in the deed, was to be divided equally among the children for the simple reason that the property or properties were not specifically described in the public instrument, an essential requirement under Article 633 which provides as follows: t.hqw Art. 633. In order that a donation or real property be valid it must be made by public instrument in which the property donated must be specifically described and in the amount of the encumbrances to be assumed by the donee expressed. The acceptance must be made in the deed of gift or in a separate public writing; but it shall produce no effect if not made during the lifetime of the donor. If the acceptance is made by separate public instrument, authentic notice thereof shall be given the donor, and this proceeding shall be noted in both instruments. This other half, therefore, remained as the disposable free portion of the spouses which may be disposed of in such manner that either of the spouses would like in regards to his or her share in such portion, unencumbered by the provision enjoining the last surviving spouse to give equally to the children what belongs or-would pertain to him or her. The end result, therefore, is that Don Jesus and Do;a Tinay, in the Deed of 1949, made to their children valid donations of only one-half of their combined properties which must be charged against their legitime and cannot anymore be revoked unless inofficious; the other half remained entirely at the free disposal of the spouses with regards to their respective shares. Upon the death of Do;a Tinay on October 2, 1959, her share in the free portion was distributed in accordance with her holographic will dated January 25, 1955 and her codicil dated August 14, 1956. It must be stressed here that the distribution of her properties was subject to her holographic win and codicil, independently of the holographic will and codicil of Don Jesus executed by him on the same date. This is fundamental because otherwise, to consider both wills and codicils jointly would be to circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly because upon the death of Do;a Tinay, only her estate was being settled, and not that of Don Jesus. We have carefully examined the provisions of the holographic will and codicil of Do;a Tinay and We find no indication whatsoever that Do;a Tinay expressly or impliedly instituted both the husband and her children as heirs to her free portion of her share in the conjugal assets. In her holographic will, mention of her children as heirs was made in the fourth clause but it only provided that, to wit: t.hqw

Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado este mi testamento seran las mismas repartados entre mi esposo o hijos arriba mencionada en el parrafo tercero su la misma proporcion o sea: la mitad (1/2) para is esposa; y la otra mitad (1/2) para mis hijos en partes iguales. For purposes of clarity and convenience, this fourth clause provided that "Should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in above par. 3 in the same proportion, that is, one- half (1/2) to my spouse; and the other half to my children in equal parts." From the above-quoted provision, the children would only inherit together with Don Jesus whatever new properties Do;a Tinay would acquire after the execution of her will. Likewise, the codicil of Do;a Tinay instituted her husband as sole heir to her share in the free portion of the conjugal assets, and We quote that part of the codicil: t.hqw Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de ni cuenta de libre disposicion todos aquellos bienes de los que no he dispuesto aun en favor de mis hijos en la escritura de reparticion precitada y que excedieran de la mitad de gananciales que le corresponds tal como arriba declare, incluyendo todos aquenos bienes que se adquiriesen por nosotros despues de otorgado por mi este testamento. Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es mi voluntad que todas las propiedades de todo genero que me pertenecen y me pudieran pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre mis herederos mencionados despues de mi muerte. Again for purposes of clarity and convenience, the above portion states: t.hqw I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document. In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertains to me or would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death.

The children, therefore, would only receive equal shares in the remaining estate of Do;a Tinay in the event that she should be the surviving spouse. To stress the point, Do;a Tinay did not oblige her husband to give equally to the children, upon his death, all such properties she was bequeathing him. Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959 in view of Our holding that Do;a Tinay's wig and codicil did not stipulate that Don Jesus will bestow the properties equally to the children, it follows that all the properties of Do;a Tinay bequeathed to Don Jesus under her holographic win and codicil became part of Don Jesus' estate unburdened by any condition obligation or proviso. Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949 and had in fact conformed to said Partition by making a holographic will and codicil with exactly the same provisions as those of Do;a Tinay, which respondent court sustained. We rule, however, that Don Jesus was not forever bound thereby for his previous holographic will and codicil as such, would remain revokable at his discretion. Art. 828 of the new Civil Code is clear: "A win may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void." There can be no restriction that may be made on his absolute freedom to revoke his holographic will and codicil previously made. This would still hold true even if such previous will had as in the case at baralready been probated (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate only authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly, the rights to the succession are transmitted only from the moment of the death of the decedent (Article 777, New Civil Code). In fine, Don Jesus retained the liberty of disposing of his property before his death to whomsoever he chose, provided the legitime of the forced heirs are not prejudiced, which is not herein claimed for it is undisputed that only the free portion of the whole Alsua estate is being contested. After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining estate of Do;a Tinay in her holographic will and codicil resulting in all such properties becoming the properties of Don Jesus alone, and after clearly pointing out that Don Jesus can, in law, revoke his previous holographic will and codicil, by making another win expressly cancelling and revoking the former, the next issue for the Court's resolution is the validity of the provisions of the contested will. Though the law and jurisprudence are clear that only questions about the extrinsic validity of the will may be entertained by the probate court, the Court had, on more than one occasion, passed upon the intrinsic validity of a will even before it had been authenticated. Thus We declared inNuguid v. Nuguid, 17 SCRA 499: t.hqw The parties shunted aside the question of whether or not the will should be allowed to probate. For them, the meat of the case is the intrinsic validity of the wilt Normally this comes only after the court has declared that the will has been duly authenticated. ...

... If the case were to be remanded for probate of the wilt nothing will be gained. On the contrary, this litigation win be protracted and for ought that appears in the record, in the event of probate or if the court rejects the will probability exists that the case win come up once again before us on the issue of the intrinsic validity or nullity of the wilt Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a behalf that we might as well meet head-on the time of the validity of the provisions of the will in question. ... The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express revocation of his holographic wig of January 5, 1955 and the codicil of August 14, 1956; a statement requiring that all of his properties donated to his children in the Deed of 1949 be collated and taken into account in the partition of his estate; the institution of all his children as devisees and legatees to certain specific properties; a statement bequeathing the rest of his properties and all that may be acquired in the future, before his death, to Pablo and Francesca; and a statement naming Francesca as executrix without bond. Considering these testamentary provisions, a close scrutiny of the properties distributed to the children under the Deed of 1949 and those distributed under the contested will of Don Jesus does not show that the former had in fact been included in the latter. This being so, it must be presumed that the intention of Don Jesus in his last win was not to revoke the donations already made in the Deed of 1949 but only to redistribute his remaining estate, or that portion of the conjugal assets totally left to his free disposal and that which he received as his inheritance from Do;a Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs claimed or intimated otherwise. The properties that were disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion and may be diamond of by him to whomsoever he may choose. If he now favored Francesca more, as claimed by private respondents, or Pablo as in fact he was, We cannot and may not sit in judgment upon the motives and sentiments of Don Jesus in doing so. We have clearly laid down this rule in Bustamante v. Arevalo, 73 Phil. 635, to wit: t.hqw ... nevertheless it would be venturesome for the court to advance its own Idea of a just distribution of the property in the face of a different mode of disposition so clearly expressed by the testatrix in the latter will. ... It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an equitable division of the estate of a deceased person. The only functions of the courts in these cases is to carry out the intention of the deceased as manifested in the wig. Once that intention has been determined through a careful reading of the will or wills, and provided the law on legitimes has not been violated, it is beyond the place of judicial cognizance to inquire into the fairness or

unfairness of any devise or bequeast. The court should not sit in judgment upon the motives and sentiments of the testatrix, first, because as already stated, nothing in the law restrained her from disposing of her property in any manner she desired, and secondly, because there are no adequate means of ascertaining the inward process of her conscience. She was the sole judge of her own attitude toward those who expected her bounty. ... Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored the petitioner to the prejudice of the other heirs who would have been entitled to an equal share under the extrajudicial partition of 1949, faced two alternatives-one, to consider Don Jesus as a man of culture and honor and would not snow himself to violate the previous agreement, and the other as one whose mental faculties or his possession of the same had been diminished considering that when the will was executed, he was already 84 years of age and in view of his weakness and advanced age, the actual administration of his properties had been left to his assistant Madarieta who, for his part received instructions from Francisco and her husband, Joseph Betts. According to the court, the better explanation is the latter, which is not legally tenable. Under Article 799 of the New Civil Code which provides as follows: t.hqw Art. 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 unshattered 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, The test of testamentary capacity is at the time of the making of the win. Mere weakness of mind or partial imbecility from disease of body or from age-does not render a person incapable of making a will. t.hqw 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. (Bugnao vs. Ubag, 14 Phil. 163).

The Civil Code itself provides under Article 798 that in order to make a will, it is essential that the testator be of sound mind at the time of its execution, and under Article 800, the law presumes that every person is of sound mind in the absence of proof to the contrary. In the case at bar, the acceptance by the respondent court of the findings of fact of the trial court on the due execution of the last win and testament of Don Jesus has foreclosed any and all claim to the contrary that the will was not executed in accordance with the requirements of the law. But more than that, gleaned from the quoted portions of the appealed decision, the described behavior of Don Jesus is not that of a mentally incapacitated person nor one suffering from "senile dementia" as claimed by private respondents. From these accepted facts, We find that: (a) it was Don Jesus himself who gave detailed instructions to his lawyer as to how he wanted to divide his properties among his children by means of a list of his properties should pertain; (b) the semi-final draft of the contested will prepared by his lawyer w-as even corrected by Don Jesus; (c) on the day of the signing of the will at his house in Ligao, "Don Jesus was in bright and lively spirits ..., leading in the conversation which ran from problems of farming and the merits of French-made wines"; (d) the signing of the will by Don Jesus and his attesting witnesses was made after a statement from Don Jesus of the purpose of their meeting or gathering, to wit: t.hqw Precisamente es por lo que he Ilamado a ustedes que eaten presentes para ser testigos de mi ultima voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documents tengo aqui con migo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis ingtrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos. Clearly then, Don Jesus knew exactly what his actions were and the fun implications thereof. In rejecting probate of the wilt respondent court further pointed out other details which, in the words of the decision "are a little bit difficult to reconcile with the ordinary course of things and of fife" such as the fact that Don Jesus had sought the probate of his will of January 5, 1955 and his codicil of August 14, 1956 during his lifetime but insofar as the will of November 14, 1959 is concerned, he had no intention of seeking the probate thereof during his lifetime, the alleged redundant and unnecessary proceedings undertaken by Don Jesus in the properties under question to petitioner Franciso AlsuaBetts when the same properties had already been bequeathed to her in the will of November 14, 1959 and that "nothing, absolutely nothing, could be made the basis for finding that Don Jesus Alsua had regarded his other children with less favor, and that he was more sympathetic to Francisca so as to or forget the former depriving them of benefits already given to them and rewarding the latter with disproportionate advantages or benefits, to such an extreme as to violate his previous disposition consecrated in the previous extrajudicial partition, Exh. 8." We agree with the petitioner that these details which respondent court found difficult to reconcile with the ordinary course of things and of life are mere conjectures, surmises or

speculations which, however, do not warrant or justify disallowance of the probate of the win of Don Jesus. The fact that Don Jesus did not cause his will to be probated during his lifetime while his previous holographic win and codicil were duly probated when he was still alive is a mere speculation which depends entirely on the discretion of Don Jesus as the testator. The law does not require that a will be probated during the lifetime of the testator and for not doing so there cannot arise any favorable or unfavorable consequence therefrom. The parties cannot correctly guess or surmise the motives of the testator and neither can the courts. Such surmise, speculation or conjecture is no valid and legal ground to reject allowance or disallowance of the wig. The same thing can be said as to whatever reason Don Jesus had for selling the properties to his daughter Francisca when he had already assigned the same properties to her in his will. While We can speculate that Don Jesus desired to have possession of the properties transferred to Francisca after the sale instead of waiting for his death may be a reasonable explanation or speculation for the act of the testator and yet there is no certainty that such was actually the reason. This is as good a conjecture as the respondents may offer or as difficult to accept which respondent court believes. A conjecture is always a conjecture; it can never be admitted as evidence. Now, the annulment case. The only issue raised anent the civil case for annulment of the two Deeds of Sale executed by and between Don Jesus and petitioner Francisco is their validity or nullity. Private respondents mainly contend that the sales were fictitious or simulated, there having been no actual consideration paid. They further insist that the issue raised is a question of fact and, therefore, not reviewable in a certiorari proceeding before the Supreme Court. On the other hand, petitioners herein maintain that it was error for the respondent court to set aside on appeal the factual findings of the trial court that the two sales were valid. It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive; and this same principle applies even if the Court of Appeals was in disagreement with the lower court as to the weight of evidence with a consequent reversal of its findings of fact. But what should not be ignored by lawyers and litigants alike is the more basic principle that the "findings of fact" described as "final" or "conclusive" are those borne out by the record or those which are based upon substantial evidence. The general rule laid down by the Supreme Court does not declare the absolute correctness of all the findings of fact made by the Court of Appeals. These are exceptions to the general rule, where We have reviewed and revised the findings of fact of the Court of Appeals. Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be reviewed on appeals by certiorari are: 1. When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin vs. Navarro, 93 Phil. 257); 2. When the inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok, 74 Phil. 15);

3. Where there is a grave abuse of discretion (Buyco vs. People, 51 O.G. 2927); 4. When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L-4875, Nov. 27, 1953); 5. When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30, 1957); and 6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelists vs. Alto Surety & Ins. Co., L-11139, April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA 289). In the case at bar, We find and so declare that the respondent court's conclusion as to the nullity of the contested sales was not supported by the evidence on record and adduced during the trial. Evident from the records are the following documentary evidence: (1) Exhibit U, a deed of sale over agricultural lands executed on August 26, 1961 by Don Jesus in favor of Francisca for the consideration of Seventy Thousand Pesos (P70,000.00), which document bears the signature of Don Jesus, not assailed as a forgery, and the signature of Pablo Alsua as an instrumental witness, again not assailed as a forgery nor alleged as done thru fraud, force or threat. (2) Exhibit "W", a deed of sale over urban lots executed on November 16, 1962 for the consideration of Eighty Thousand Pesos (P80,000.00), which document also bears the signature of Don Jesus, also admittedly not a forgery. (3) Exhibit "F", a document dated August 26, 1961 and signed by Don Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of Philippine Island Check No. 0252 in the amount of Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to Francisco under the same date; again, Pablo did not deny the genuineness of his signature. (4) Exhibit "X", a Bank of the Philippine Islands Check No. D-6979 dated November 26, 1962, in the amount of P32,644.71, drawn and signed by Francesca, payable to Don Jesus. (5) Exhibit "X-1", a second Bank of Philippine Islands Check (No. D-6980) also dated November 26, 1962 in the amount of ?47,355.29, drawn by Francisco and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5 ", endorsements on the back of the last two checks by Don Jesus, again, his signatures thereon were not assailed. (7) Exhibit "A" (in the annulment case), a Bureau of Internal Revenue Receipt (No. 2347260) dated November 29, 1962 with a notation acknowledging the receipt of BPI Check No. D-6980 in the amount of P47,355.29 from Don Jesus Alsua in payment of Balance of Transfer of Tax Ass. No. EA-35415-19 plus interest. We are convinced and satisfied from this array of documentary evidence that in fact, Don Jesus sold the subject properties to his daughter, Francisca for the total consideration of P150,000.00. The claim of the private respondents that the sales were fictitious and void for being without cause or consideration is as weak and flimsy as the ground upon which the respondent court upheld said claim on the basis that there was no need for funds in Don

Jesus' old age aside from the speculation that there was nothing in the evidence that showed what motivated Don Jesus to change his mind as to favor Francesca and discriminate against the other children. The two contracts of same executed by Don Jesus in favor of Francesca are evidenced by Exhibits "U" and "W", the genuineness of which were not at all assailed at any time during this long drawn-out litigation of 15 years standing. That the consideration stated in the contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus were even signed by one of the private respondents, Pablo Alsua, as a witness. The latter cannot now deny the payment of the consideration And even of he now allege that in fact no transfer of money was involved, We find his allegation belied by Exhibits "X-3 " and "X-5 ", which show that the checks of Francisco made payable to Don Jesus. were in fact given to Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit "A" in the annulment case, which proved that Don Jesus actually used Exhibit "XI " to complete payment on the estate and inheritance tax on the estate of his wife to the Bureau of Internal Revenue. Private respondents further insist that the sales were fraudulent because of the inadequacy of the given price. Inadequacy of consideration does not vitiate a contract unless it is proven which in the case at bar was not, that there was fraud, mistake or undue influence. (Article 1355, New Civil Code). We do not find the stipulated price as so inadequate to shock the court's conscience, considering that the price paid was much higher than the assessed value of the subject properties and considering that the sales were effected by a father to her daughter in which case filial love must be taken into account. WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The decision of the Court of First Instance Of Albay in Special Proceedings No. 699 and Civil Case No. 3068 is hereby reinstated, with costs against respondents. SO ORDERED. G.R. No. L-19910 May 31, 1971 IN THE MATTER OF THE TESTATE ESTATE OF MARIE GARNIER GARREAU. LIRIO PFANNENSCHMIDT RAMIREZ, petitioner-appellant, vs. JOSE MA. RAMIREZ, oppositor-appellee. Jose W. Diokno for petitioner-appellant. Sycip, Salazar, Luna & Associates for oppositor-appellee.

MAKALINTAL, J.:

At issue in this appeal is the due execution of the last will and testament of Maria Gamier Garreau, which was denied probate by the Court of First Instance of Manila in its order of August 15, 1961 (Special Proceeding No. 39365) on the ground of the testatrix' lack of testamentary capacity. Maria Gamier Garreau, widow of Ramon Ramirez, was a native of Asnier Paris, France, but a Filipino citizen residing in Madrid, Spain, where she died childless at the age of 84 on January 11, 1959. The will in question was an "open" one, executed before a notary public in Madrid on May 24, 1958, and instituting her niece Lirio (Lily) Pfannenschmidt now appellant, as sole and universal heir. Lirio is one of the four children of Jose Ramirez, brother of the testatrix husband Ramon, the other three being Elsa, Esperanza and Horacio. Ramon had a half-brother, Jorge P. Ramirez, whose son, Jose Maria Ramirez, now appellee, opposed the petition for probate filed by Urio on February 20, 1959, alleging in his opposition, inter alia, that there was a prior will executed by the testatrix in Manila in 1949. The photostat copy of that will, marked in the record as Exhibit D and Exhibit 2-J, shows that the testatrix instituted her husband as her universal 'heir, and in the event that he should predecease her (which he did), named her niece Lily Ramirez and her nephews Horacio Ramirez and Jose Ma. Ramirez as substitute heirs to all her properties in equal shares. This previous will, however, is not involved in this case, and has been referred to by the parties only in relation to the background circumstances concerning the execution of the "open" will in 1958. Ironically enough and certainly not without some overtones of poetic justice the order of the trial court denying probate is based in no small part on a number of letters written by the petitioner herself, in which she used quite strong terms to describe the mental infirmity of the testatrix. Those letters were written by her in 1956 and 1957 to her uncle, Jose Eugenio Ramirez de la Cavada, another brother of the testatrix husband, Ramon Ramirez. Even before then, however, the testatrix' mental condition was already the object of serious concern among her close relatives. The testimony of Jose Eugenio Ramirez, given in the form of deposition and submitted as Exhibit 3, discloses the following facts: He arrived in Madrid in 1954. His niece Lily who was then residing there, came to him and said that she could not accept the fact that Jose Maria Ramirez (herein oppositorappellee) had been named as heir in the will of her aunt, not being a member of the same family group. Lily, obviously referring to the 1949 will, then suggested to her uncle that he do something to correct the same, which suggestion he turned down, pointing out that the testatrix had the right to name her nephew Jose as one of her heirs. When he arrived in Madrid he found his sister-in-law "ya una mujer muy incapacitada." In 1955 he consulted a physician, Dr. Romero de Arcos and asked him to examine her. Dr. de Arcos had been treating the patient for various ailments, and it was he who suggested, after conducting his examination, that Dr. Jose Germain, competent specialist, be called to make his own diagnosis. The medical opinions of these two doctors will be discussed later. But from his own observations, Jose Eugenio Ramirez declared that his sister-inlaw was even then mentally incapacitated, citing by way of example her attitude and personal reaction when her husband died in 1956. She was present at his death and

saw his body just before he was buried; but when she went to her room after the funeral and saw that his bed was no longer there she came out crying asking where her husband was and saying that she was going to look for him. She had totally forgotten that he had passed away. Apart from that, she was easily susceptible to any suggestion from others, particularly those close to her, and after doing what she was told would promptly forget all about it. Another deponent, Julio Escribano Langa, a resident of Madrid who had known the spouses Ramon Ramirez and Maria Gamier Garreau for about nine years, testified to the same mental condition of the testatrix: her susceptibility to another person's influence; her lack of memory for recent events, her lack of understanding of, or volition for deciding, certain matters such as the making of a last will. Dr. Manuel Ramon de Arcos was first called to the Ramirez household in 1953 to treat Ramon Ramirez, and after that his wife, on a number of occasions until 1958. The material statements in his deposition are as follows: ... Alla por 1953 debia tener 77 o 78 aos de edad, y en esa seora se notaba cada vez mas falta de memoria, eso mucho, y a veces tenia cosas extranas, como imaginarse que habia hecho un viaje que no habia hecho o de escribir cosas como sobre la casa de un cunado suyo en Palma donde nunca habia estado, y con el tiempo fue siguiendo la cosa asi pero motives de alarma en cuanto a su vida no. xxx xxx xxx Desde hacia tiempo ya que esta senora no tenia lucidez mental y antes se me pidio que yo certificara de su estado exacto y yo me encontre poco competente para ello, y efectivamente due que yo queria Ilevar adelante una exploracion en el sentido neurologico y yo necesitaba que alguien que se dedique a esa especialidad venga conmigo y entonces se Ilamano al Dr. Germain, y esto fue en marzo de 1955. El diagnostico a que Ilegamos, que despues fue confirmado, era de una involucion cerebral senil que Ilamanos a una involucion regresiva debido a defectos cerebrales de arteriosclerosis, y cuando se tiene eso cuando las cosas son asi realmente, la enfermedad no retrocede y la involucion avanza; es posible que algana vez yo la saludara y ella me contestara con mas afecto y pareciese que estaba mejor pero en realidad la involucion avanzaba como es normal. Dr. Jose Germain, who had been called in consultation by Dr. de Arcos in April 1955, presented an impressivecurriculum vitae attesting to his qualifications as a psychiatrist. The conclusions he arrived at after his examination of the patient are set forth in his deposition as follows:

xxx xxx xxx P. Quiere usted explicar la naturalization de los servicios prestados por usted? R. Sencillamente estudiar a la enferma bajo el punto de vista psiquiatrico y analizar sus reacciones ante las preguntas normales de orientation del tiempo y del espacio y contestaciones a una serie de pruebas o tests, y sobre esto forme un juicio que transmiti al Dr. Romero. P. Que juicio forms usted? R. Que esta senora padecia un proceso arterioesclerotic cerebral con alteracion del pensamiento y de la conducta que evidenciaba un estado de demencia presenila en evolucion. P. Ese estado de demencia presenilla la incapacitaba para realizar actos como un testamento con lucidez? R. Indudablemente. P. La evolucion de la enfermedad hace suponer posible que sea curable? R. No, seor, es un proceso irreversible y progresivo. P. Que experiencias hizo usted con la enferma? R. No recuerdo, pero eran las usuales. P. Tenia memoria? R. Si seor, pero perturbada. P. Gravemente perturbada? R. Perturbada para las circumstancias normales de la vida. P. Un sujeto en esas condiciones, tiene voluntad libre o es facilmente presionable de ser llevado por personas extranas a resoluciones no personales del enfermo?

R. Todos estos enfermos lo que tienen es una disminucion del criterio personal y, por tanto, son susceptibles de ser influenciados. P. Normalmente por personal de su intimidad? R. Por cualquier persona, el primero que venga. P. Ha expedido usted un certificado? R. Si senor. P. Podia esta persona tener intervalos lucidos para que fueran validos? R. Repito que es un proceso irreversible y, por tanto, la sintomatologia tenia que seguir mas o menos en el primer plano de su personalidad. SR. GALLARDON: Nada mas. xxx xxx xxx P. Pero usted incapacitacion? R. Si senor. P. Esta senora incurria en todos los elementos para ser incapacitada totalmente? R. Si senor. P. Al reconocer a ella, tenia usted algun prejuicio? R. No, senor. P. Usted dijo que era una enfermedad irreversible, es decir que no tiene curacion? R. Exacto. P. Pero puede mejorarse? R. No, senor, irreversible y progresiva es un proceso degenerativo cerebral. conoce los requisitos para una

In the light of the foregoing expert medical opinions the letters written by herein appellant to her uncle, Jose Eugenio Ramirez, assume a vital significance on the issue of testamentary capacity, and of her own credibility as proponent of the probate of the will. In her letter of January 8, 1956 (Exh. 2-A) she wrote: I am trying to do all I can for poor Tia Marie who refuses to be helped. Poor dear she is getting worse and worse everyday. Her mind does not register anything y es terriblemente dura de cabeza. In another letter (Exh. 2-B) dated July 15, 1956, she said to her uncle: I think it is my duty to look after her (Doa Marie) now that she is alone especially since the poor dear is completely in Irene's hands. * You will remember that Irene was with them when the thousands of pesos the Tios had for a rainy day were spent in two shakes of a lamb's tail. Appellant's letter of January 17, 1957 (Exh. 3-C) contained the following postcript: P.S. Everyday several times a day she (Doa Marie) tells me she is going back to Paris. This morning she asked me where Tio Ramon (who had died the previous year) was. On January 29, 1957 appellant again wrote a letter to her uncle, in which she said: Tia Marie has completely forgotten Irene from the second day she left. Irene must have told Tia Marie to ask Mr. Collard for the 40,000 telling her that with that money they would go to Paris and if Mr. Collard would have had the money to send, she would have kept it for herself, as Tia Marie would have forgotten about the money no sooner having collected it. Tia Marie signed for the money I went to collect and when I came back from the bank she did not ask me for it. She must have done that with Irene. Appellants, having suspected the maid Irene of taking advantage of Doa Marie's susceptibility to extraneous influence, succeeded in leaving her dismissed from the service; and Doa Maria had "completely forgotten (her) from the second day after she left." Such was the testatrix' mental condition that as early as 1956 appellant, in her letter of January 8, told her uncle that she was thinking of having her aunt judicially pronounced incapacitated and asked him to send her "the papers of the doctors who declared Tios Ramon and Marie incapaces." Jose M. Cavanna, the Philippine administrator of the family of the testatrix, had the same idea, and so expressed it in his letter to appellant (Exh. 3-F) dated May 4, 1957,

making reference to the fact that the testatrix had very little memory or almost none at all. He had deposited for her account in a bank in Madrid the sum of 100,000 pesetasso that she could draw regularly thereon which she did. However, when after a year he again went to Madrid Doa Marie, in the presence of her brother-in-law, Jose Eugenio Ramirez, denied ever having received any money from Cavanna. Referring to that incident, Cavanna continued in his letter to appellant: Recordandoles la suma que les habia dejado en mi visita el ano anterior, me lo negaron y aseguraron no haber recibido de mi ninguna cantidad de dinero. Estaba entonces presente D. Pepe Eugenio que habiendo oido sus insistentes protestas de no haber recibido el ano anterior cantidad alguna mia a exepcion de los giros mensuales, note que llego dudar de mis afirmaciones y entonces le invite ir al Banco en donde habia hecho el deposito para cerciorarse de aquellos hechos, en que trataban de negar mis afirmaciones. Al dia siguiente nos constituimos en el Banco D. Pepe Eugenio y yo y alli se corroboro todas mis afirmaciones y quedo probada la poca o casi ninguna memoria que existia en Da Marie, en vista del hecho de que ella misma habia firmado todos los cheques y no pudo seguir negando el hecho, confeso que se habia olvidado y no se volvio a hablar de ese asunto. Pero este hecho dio lugar que desde entonces los familiares comprendiendo el exceso de gastos que hacia y la suma tan gruesa que se habia gastado en aquel ano acordaron designar como en efecto se designo a Dn. Pepe Eugenio para que actuara en sus intereses en Espana y les enviara los fondos que se recibian de Manila en forma tal que no les hiciera falta nada para que no se les perdiera tantos fondos, pues Ilego a suspecharse de una sirvienta que entonces tenian que resultaba mas que sirvienta una ama de compania. Tambien entonces habia hecho constar que se les enviaba trimestralmente las cuentas de sus fondos por duplicado con objeto de que despues de estudiada, dieran su conformidad y devolviesen uno de los ejemplares. No solo no devolvian el duplicado sino que no acusaban recibo de ella y en muchisimas ocasiones no sabian en donde lo habia dejado. En otra occasion anterior a estos acontecimientos tambien me aseguraron no haber recibido uno de los giros de $300.00 enviados y hechas las correspondientes avariguaciones resulto haber sido cobrador por Da Marie. Legal a pensarse la conveniencia de promover un expediente de tutela pero no se Ilevo a cabo para que no sufrieran en vida la vajacion de ser judicialmente declarados incapacitados por su avanza da edad. Lamenting the fact that her aunt was "completely in Irene's hands," and that "Irene has taken complete possession of every penny and gives Tia Marie no account of anything," * appellant expressed herself quite strongly in this wise:

After all if the worst comes to the worst it is better that I who am a member of the family should cheat Tia Marie rather than an absolute stranger. The same fear was reiterated in her letter of February 2, 1957 (Exh. 3-E); ... Que chasco y disgusto tendriamos si resultase Irene la heredera de los Tios. Cosa muy posible conociendo las cosas que ha hecho y lo engaados que tenia a los pobres Tios. A subsequent letter of appellant, dated April 9, 1957 (Exh. 2-K), this time addressed to her brother Horacio, reveals a significant development. Apparently the 1949 will, wherein Jose Maria Ramirez, appellee herein, was mentioned as one of the heirs, had been changed with a new one eliminating him. Appellant wrote to her brother: Enclosed am sending Tia Marie's letter to you. As you will note the date is Feb. 2nd. I am doing this so that the letter appears to have been written before her new will. Keep her letter where it will be clear to see that the reason why Boby (appellee) does not appear in her new will is because he intended to take Tio Ramon to the "Tribunates," so if Boby by any chance tries to contend it you will have her letter as a farther proof that is what she had every intention to do. So Cillo (Horacio) for goodness sake keep it in a safe or in the bank until you will have use of it. Tear this letter no sooner read in case it falls into wrong hands. The less people know of the new will the better in case action should be taken against it. The foregoing letter appears quite conspiratorial, as, though the will referred to in it had been obtained by appellant in order to cut off Boby (appellee) from any share in the inheritance, and the enclosed letter of the testatrix had been antedated to February 2 so that it would appear "to have been written before her new will." For some reason not disclosed in the record, that will never came to light. Evidently Horacio was also an heir therein, but then was subsequently eliminated in the 1958 will which was actually presented for probate by appellant. The evidence hereinabove discussed, cumulatively considered, leads to the definite conclusion that Marie Gamier Garreau was indeed mentally incapacitated to make a will, that is, "to know the nature of the estate to be disposed of, the proper objects of (her) bounty, and the character of the testamentary act" (Art. 799, Civil Code). As early as 1955, when she was examined by the family physician, Dr. Romero de Arcos and by a qualified psychiatrist, Dr. Jose Germain, she was already suffering from pre-senile dementia, a degenerative mental, infirmity that was described by them as "a progressive and irreversible process." The manifestations of this condition are amply illustrated in the letters written by appellant herself as well as in the testimony of her uncle, Jose Eugenio Ramirez. In fact these two were convinced that the testatrix should be placed under judicial guardianship, and actually took the initial steps towards that end. Appellant's subsequent turn-about in her opinion of the testatrix' mental condition is of course understandable, considering that in the will she is named as sole and universal

heir. But precisely for this reason not much reliance can be placed upon her testimony to the effect that the testatrix was possessed of the necessary testamentary capacity. The most pertinent evidence in behalf of appellant is the testimony of the notary public before whom the will in question was executed and the testimony of two of the three instrumental witnesses. The notary public, Braulio Nolasco Carrasquedo, gave the following statements on the subject of the testatrix' mental condition: 17. Sabe usted cual era el estado mental de dicha senora cuando otorgo el testamento anexo 1? R. A mi juicio estaba bien. 18. Haga usted el favor de explicar su contestacion a la pregunta anterior. R. No selo que quieren decir con esa pregunta. Yom juzgo que ella estaba capacitada y hay una clausula all de que esta capacitada legalmente. 19. Diga usted si Doa Maria Garnier Garreau se daba cuenta de que estaba otorgando un testamento? R. Se contesta con la repuesta anterior, pues si estaba capacitada sabia lo que hacia. 20. Diga usted si la testadora recordaba sus propriedades? R. Supongo que si aunque el en testamento no se permite a menos que se hagan legados, pero aqui es un testamento en terminos generales. 21. Diga usted si la testadora recordaba sus parientes? R. No puedo decir eso pero ella estaba con su sobrina, aunque supongo que recordara a sus parientes. As may be noted, the foregoing statements of the notary public are far from satisfactory. They are vague and evasive, and tend to beg the very issue. Thus the witness could not say, but merely supposed, that the testatrix had a recollection of her properties or of the relatives who would logically inherit from her and when asked to explain his answer to the question concerning her mental state, he simply referred to the certification in the will on that point. It would seem that he was aware that he had no sufficient basis for a categorical opinion on the subject, and so declined to fully commit himself. Manuel Gomez Tortajada was one of the instrumental witnesses. He affirmed that the testatrix was in "perfect" mental condition at the time of the execution of the will; that

she knew "perfectly" that he was executing a will; that on another occasion she had even told him about certain properties of hers, and about her relatives, who were a niece and a sister of that niece. The testimony of this witness on deposition gives the distinct impression of officiousness, of pretending to be more intimately familiar with the affairs of the testatrix than their casual acquaintance justified. In any case his affirmation of the testatrix "perfect" mental condition was so obviously an exaggeration in the face of the clear and convincing evidence to the contrary that it only serves to weaken his credibility. The other instrumental witness was Antonio Fernandez Caballero. He likewise affirmed the good condition of the testatrix' mental faculties, saying that she had a recollection of her properties as well as of her relatives. The affirmation is rather strange' not to say incredible, considering that he met the testatrix for the first and only time in the office of the notary public on the occasion of the execution of the will, and that all that took place then was that the said will was read by the notary and then signed by the testatrix, the witnesses and the notary himself. And according to the latter he did not ask her anything about her properties or her relatives. Indeed this instrumental witness admitted that he did not understand the language spoken by the testatrix on that occasion: R. Yo quicro decir que esta senora como hablaba algo diferente de nosotros todo lo que pudiera hablar no me entraba bien si ella hablaba con la sobrina, pero el lenguaje de ellas no lo entendia y no se si podian hablar de propiedades u otras cosas. P. But did the testatrix talk about her relatives on that occasion? R . Yo oi que ella hablaba con la senorita que le acompafiaba y creo que tenian parentezco pero hablaban en el idioma de ellas. Three additional witnesses, by way of rebuttal, were presented by appellant. The first was Dr. Suils Perez, whose deposition is marked Exhibit Q. He said that as a neurologist and a psychiatrist he was called several times in 1957 to Marie Garnier Garreau. His diagnosis was that she had a "brain lesion" "(lesion en el cerebro), but had a mentality corresponding to her age. "Era una mujer que en interes o atencion dejaba mucho que desear salvo en las cosas que le interesaban ... En un test que se hubiera hecho con ella hubieramos visto resultados contradictorias segun el momento de atencion en que se lo hicieramos que era muy variable." The foregoing testimony leaves much to he desired insofar as the issue of testamentary capacity is concerned: no reference whatsoever was made therein to the very elements of that issue, such as capacity to comprehend the nature of the testamentary act, the recollection of the properties to be disposed of and of the relatives who might have a claim upon the testatrix' generosity.

Salustiano Reyero, a priest, was the second rebuttal witness for appellant, whose testimony was given in the form of deposition. The testatrix, he said, was in possession of her mental faculties, reacted well to questions directed at her, and even told him that she had a house in Paris. His impression was that she was not susceptible to suggestion coming from or influence exerted by other persons. However, he qualified his assertions as follows: algunos ratos parecia que estaba alelada, "algunes veces note" eso cuando fui, y estaba como si no tuviera interest." Asked whether the testatrix remembered things normally, this witness answered: "Algunas veces no, cuando estaba ya Lily con ella que fue cuando la vi, porque no iba a ver a la difunta precisamente sino a Lily, y despues cuando volvia yo ya no se acordaba de que habia estado yo alli." Gonzalo Conejos Fernandez was the third rebuttal witness, also by deposition. A lawyer by profession, he said he was consulted by the testatrix, after he came to know her in 1956, about certain personal matters, among them the revocation of a power-ofattorney given to Jose M. Cavanna and the designation of another in his place as well as the proceedings for the adoption of appellant by the said testatrix. She consulted him also about what kinds of wills were permitted under the Spanish law, and told him that she had previously made a will in Manila where she was leaving her properties to her niece Lily, to a brother or a sister of the latter and to a "senor Ramirez," (evidently referring to appellee), but that because of certain actuations of appellee which did not please her she did not consider him deserving of being her heir. The witness was present at the execution of the will in question on May 24, 1958, and he noted, he said, that she was aware of the nature of the act in which she was engaged and that she had a recollection of her relatives and properties. From the tenor of his testimony the testatrix was a completely normal person during the period of their acquaintance; she was never absent-minded (alelada); and he did not know that she was suffering from cerebral arteriosclerosis or from pre-senile dementia. The testimony of this witness was not given weight by the trial court. It does suffer from the view point of credibility. He was presented as a rebuttal witness, who had been present during the taking of the depositions of the previous witnesses for appellant. He was therefore in a position to cure, as he apparently tried to do, the weaknesses in their statements. Although he was present when the will was executed, he actually remained in another room, the "antesala," which was separated by a glass partition from the room where the testatrix, the notary public and the instrumental witnesses transacted the business at hand. The witness was quite elaborate about the motive behind the execution of the new will making appellant the sole heir. He said: ... esta Senora (testatrix) me dijo que tenia otorgado un testamento en Manila distribuyendo la herencia entre Lily, una hermana o hermano, y un Seor Ramirez (appellee), y que el motive de decidir que toda su herencia fuera de Lily, rectificando su anterior testamento, era debido aparte de las consideraciones de tipo afectivo a que me he referido al hecho de que ella estuvo casada con un Senor Ramirez, hijo natural de su padre, y que este

Senor tenia un hijo legitimo, y a pesar de Ilevarse en buenas relaciones, cuando murio el hijo (evidently referring to appellee) de este hijo legitime quiso anular las disposiciones de su padre que no distinguio entre Ia condicion natural or legitimo, y por esta razon, a quien habia procedido de esa forma, que era sobrino de la difunta no le consideraba acreedora ser heredero de ella. If the foregoing were true, and had indeed been confided to the witness by the testatrix, it is strange that she should cut off from her new will not only the appellee but also the other nephew, Horacio Ramirez, appellant's full brother who was one of the heirs mentioned in the previous will executed in Manila and against whom the testatrix entertained no grievance. The issue here is essentially one of fact, and involves an appraisal of the conflicting evidence presented by the parties. That issue was addressed in the first instance to the trial Judge, and we cannot say that his conclusion as to the testamentary incapacity of the testatrix is erroneous. It is based mainly on expert medical testimony to the effect that her mental infirmity was observed by the family physician as far back as 1953 and confirmed in 1955 by a competent psychiatrist, who described the process of the mental degeneration as progressive and irreversible; on the written admissions and declarations of appellant herself, who would have no motive then to falsify the facts; and on the testimony of the testatrix' brother-in-law, Jose Eugenio Ramirez. On the question of credibility, we find no ground to disregard such evidence in favor of the vague, inconclusive statements of the notary public who authenticated the will and of the two instrumental witnesses, nor even of the testimony of the rebuttal witnesses, the more categorical character of whose affirmations only serve to weaken their credibility, conflicting as they do not only with the evidence for appellee but also with that given by the other witnesses for appellant. IN VIEW OF THE FOREGOING CONSIDERATIONS, the order appealed from is affirmed, with costs against appellant. G.R. No. 76648 February 26, 1988 THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners, vs. COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.

GANCAYCO, J.: This is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated August 29,1986 affirming in toto the decision of the Regional Trial Court of Manila, Branch XXII 2 dated March 21, 1985, the dispositive part of which reads:

WHEREFORE, the Court renders judgment declaring the holographic will marked in evidence as Exhibit "H" as one wholly written, dated, and signed freely by the late Herminia Montinola in accordance with law while in possession of full testamentary capacity, and allowing and admitting the same to probate. Upon the finality of the decision, let letters testamentary issue to the executor, Eduardo F. Hernandez, as well as the certificate of probate prescribed under Section 13 of Rule 76 of the Rules of Court. SO ORDERED. 3 This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22, 1981 with the Court of First Instance of Manila (now Regional Trial Court) seeking the probate of the holographic will of the late Herminia Montinola executed on January 28, 1980. 4 The testatrix, who died single, parentless and childless on March 29,1981 at the age of 70 years, devised in this will several of her real properties to specified persons. On April 29,1981, private respondent who was named executor in the will filed an urgent motion for appointment of special administrator. 5 With the conformity of all the relatives and heirs of the testatrix except oppositor, the court in its order of May 5, 1981 6 appointed private respondent as Special Administrator of the testate estate of deceased. On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased but who was not named in the said win, filed her Opposition to Probate of Will, 7 alleging inter alia: that the subject will was not entirely written, dated and signed by the testatrix herself and the same was falsely dated or antedated; that the testatrix was not in full possession of her mental faculties to make testamentary dispositions; that undue influence was exerted upon the person and mind of the testatrix by the beneficiaries named in the win; and that the will failed to institute a residual heir to the remainder of the estate. After a hearing on the merits, the probate court, finding the evidence presented in support of the petition to be conclusive and overwhelming, rendered its decision allowing the probate of the disputed will. Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed in toto the decision. 8 On September 24,1986, petitioner filed with the respondent court a motion for new trial. 9 Attached to her motion was the Affidavit of Merit of Gregorio Montinola Sanson, petitioner's son, alleging that witnesses have been located whose testimonies could shed light as to the ill health of the testatrix as well as undue influence exerted on the latter.

The appellate court in its resolution of October 13, 1986, 10 denied the motion for new trial of petitioner on the following grounds: (1) the Affidavit of merit attached to the motion alleged that efforts were exerted to locate unnamed witnesses only after the court's decision was handed down, and (2) the unnamed witnesses would allegedly shed light on the fact of grave illness of the testatrix as well as the undue influence exerted on her which are merely corroborative or cumulative since these facts were brought to light during the trial. The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise denied by the appellate court in its resolution of November 20, 1986 12 on the ground that the affidavit of one Patricia Delgado submitted with the motion constitutes cumulative evidence and the motion being in reality a second motion for reconsideration which is prescribed by law. In the petition now before Us, petitioner assigned the following errors: I THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS' MOTION FOR NEW TRIAL ON THE GROUND THAT THE EVIDENCE SOUGHT TO BE PRESENTED IS MERELY CUMULATIVE. II THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION OF THE RESOLUTION DENYING THE AFORESAID MOTION FOR NEW TRIAL. III AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE HOLOGRAPHIC WILL IN QUESTION WAS WHOLLY WRITTEN, DATED AND SIGNED BY THE LATE HERMINIA MONTINOLA. IV THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL DATE OF EXECUTION AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO THE TESTAMENTARY CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS ACTUAL EXECUTION. V

THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA WAS NOT SUBJECTED TO UNDUE PRESSURE AND IMPROPERIMPORTUNINGS ON THE PART OF THOSE STANDING TO BENEFIT FROM THE ALLEGED WILL. VI THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN QUESTION TO PROBATE. In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs. In the first and second assigned errors, petitioners maintain that the appellate court erred in denying the motion for new trial insisting that the new evidence sought to be presented is not merely corroborative or cumulative. On the other hand, the contention of private respondent is that the motion for new trial was a pro-forma motion because it was not in accordance with Sec. 1, Rule 53 of the Rules of Court. We find merit in this contention. Section 1, Rule 53 provides Before a final order or judgment rendered by the Court of appeals becomes executory, a motion for new trial may be filed on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of the diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence. The affidavit of merit executed by Gregorio Montinola Sanson alleged the following: xxx xxx xxx 3. That in her plea for new trial in the said case, I have exerted efforts to locate witnesses whose whereabouts were not known to us during the trial in the lower court, but I have finally succeeded in tracking them down; 4. That despite their initial reluctance to testify in this case,I am convinced that they would testify under proper subpoena for purposes of shedding light on the fact that the testatrix was gravely ill at or but the time that the questioned will was allegedly executed; 5. That they had the clear opportunity to know the circumstances under which the purported will was executed; and that they know for a fact that

there was 'undue influence' exerted by petitioner and other relatives to procure improper favors from the testatrix; xxx xxx xxx 13 Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone affidavit of a witness who was already presented said the hearing is hardly sufficient to justify the holding of new trial. The alleged new witnesses were unnamed without any certainty as, to their appearance before the court to testify. Affiant attests only on his belief that they would testify if and when they are subpoenaed by the court. Furthermore, the allegations in the affidavit as to the undue influence exerted on the testatrix are mere conclusions and not statement of facts. The requisite affidavits must state facts and not mere conclusions or opinions, otherwise they are not valid. 14 The affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out to be immaterial or of any evidentiary weight. Moreover, it could not be said that the evidence sought to be presented is new having been discovered only after the trial. It is apparent from the allegations of affiant that efforts to locate the witnesses were exerted only after the decision of the appellate court was handed down. The trial lasted for about four years so that petitioner had ample time to find said alleged witnesses who were admittedly known to her. The evidence which the petitioner now propose to present could have been discovered and presented during the hearing of the case, and there is no sufficient reason for concluding that had the petitioner exercised proper diligence she would not have been able to discover said evidence. 15 In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as the charges of undue influence exerted upon her had been brought to light during the trial, and new evidence on this point is merely corroborative and cumulative which is generally not a ground for new trial. 16 Accordingly, such evidence even if presented win not carry much probative weight which can alter the judgment. 17 It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the proceedings. In fact, petitioners son in his manifestation admitted that he had to request a new law firm to do everything legally possible to meet the deadline for the filing of a motion for reconsideration and/or for new trial. 18This would explain the haphazard preparation of the motion, thus failing to comply with the requirements of rule 53, which was filed on the last day of the reglementary period of appeal so that the veracity of the ground relied upon is questionable. The appellate court correctly denied the motion for new trial. The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal. 19 Since petitioner's motion was filed on September 24,1986, the fifteenth or last day of the period to appeal, the decision of the respondent court became final on the following day, September 25. And when the motion for reconsideration of petitioner was filed on October 30,1986, it was obviously filed out of time.

Since the questioned decision has already become final and executory, it is no longer within the province of this Court to review it. This being so, the findings of the probate court as to the due execution of the will and the testamentary capacity of testatrix are now conclusive. 20 At any rate, even assuming that We can still review this case on its merits, the petition will also have to fail. During the hearing before the probate court, not only were three (3) close relatives of the testatrix presented but also two (2) expert witnesses who declared that the contested will and signature are in the handwriting of the testatrix. These testimonies more than satisfy the requirements of Art. 811 of the Civil Code 21 in conjunction with Section 11 of Rule 76, Revised Rules of Court, 22 or the probate of holographic wills. As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was actually executed sometime in June 1980 when the testatrix was already seriously ill and dying of terminal lung cancer. She relied only on the supposed inconsistencies in the testimony of Asuncion Gemperle, niece and constant companion of testatrix, which upon careful examination did not prove such claim of antedating. The factual findings of the probate court and the Court of Appeals that the will in question was executed according to the formalities required by law are conclusive on the Supreme Court when supported by evidence. 23 We have examined the records of this case and find no error in the conclusion arrived at by the respondent court that the contested will was duly executed in accordance with law. Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being the only surviving sister of the testatrix with whom she shares an intimate relationship, thus demonstrating the lack of testamentary capacity of testatrix. In the case of Pecson v. Coronel, 24 it was held The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of a relative from one's estate is an exceptional case. It is true that the ties of relationship in the Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced heirs is rendered sacred by the Civil Code in force in the Philippines since 1889... Article 842 of the Civil Code provides that one who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will. Nevertheless, per testimony of Asuncion Gemperle, the latter had

reserved two boxes of jewelry worth P850,000.00 for petitioner. Furthermore, petitioner's son Francis was instituted as an heir in the contested will. Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her estate is an indication of the unsoundness of her mind. We cannot subscribe to this contention. Art. 841 of the Civil Code provides A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases, the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does not invalidate the will, or is it an indication that the testatrix was of unsound mind. The portion of the estate undisposed of shall pass on to the heirs of the deceased in intestate succession. Neither is undue influence present just because blood relatives, other than compulsory heirs have been omitted, for while blood ties are strong in the Philippines, it is the testator's right to disregard non-compulsory heirs. 25 The fact that some heirs are more favored than others is proof of neither fraud or undue influence. 26 Diversity of apportionment is the usual reason for making a testament, otherwise, the decedent might as well die intestate. 27 The contention of the petitioner that the will was obtained by undue influence or improper pressure exerted by the beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is not enough that there was opportunity to exercise undue influence or a possibility that it may have been exercised. 28 The exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually exercised.29 Finally, We quote with approval the observation of the respondent court There is likewise no question as to the due execution of the subject Will. To Our minds, the most authentic proof that decreased had testamentary capacity at the time of the execution of the Will, is the Will itself which according to a report of one of the two expert witnesses (Exhibits X to X-3) reveals the existence of significant handwriting characteristics such as: 1. Spontaneity, freedom, and speed of writing

xxx xxx xxx 3. good line quality. 4. presence of natural variation... (Exhibit X). The characteristics of spontaneity, freedom and good line quality could not be achieved by the testatrix if it was true that she was indeed of unsound mind and/or under undue influence or improper pressure when she the Will. IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with costs against petitioner. The decision of respondent court dated August 29, 1986 in toto the decision of the Regional Trial Court of Manila dated March 21, 1985 is hereby declared to be immediately executory. SO ORDERED. February 26, 1926 G.R. No. MANUEL TORRES, petitioner-appellant appellant, vs. MARGARITA LOPEZ, opponent-appellee. and LUZ LOPEZ L-24569 DE BUENO,

Araneta & Zaragoza for appellant. Marcaida, Capili & Ocampo and Thomas Cary Welch for appellee. Malcolm, J.: This case concerns the probate of the alleged will of the late Tomas Rodriguez y Lopez. Tomas Rodriguez died in the City of Manila Philippine Islands. On February 25, 1924, leaving a considerable estate. Shortly thereafter Manuel Torres, one of the executors named in the will asked that the will of Rodriguez be allowed. Opposition was entered by Margarita Lopez, the first cousin of the deceased on the grounds: (1) That the testator lacked mental capacity because at the time of senile dementia and was under guardianship; (2) that undue influence had been exercised by the persons benefited in the document in conjunction with others who acted in their behalf; and (3) that the signature of Tomas Rodriguez to the document was obtained through fraud and deceit. After a prolonged trial judgment was rendered denying the legalization of the will. In the decision of the trial judge appeared, among others, these findings:

All this evidence taken together with the circumstances that before and at the time Tomas Rodriguez was caused to sign the supposed will Exhibit A, and the copies thereof there already existed a final judgment as to his mental condition wherein he was declared physically and mentally incapacitated to take care of himself and manage his estate shows in a clear and conclusive manner that at the time of signing the supposed will of Tomas Rodriguez did not possess such mental capacity as was necessary to be able him to dispose of his property by the supposed will. But even supposing as contended by petitioners counsel that Tomas Rodriguez was at the time of execution of the will, competent to make a will, the court is of the opinion that the will cannot be probated for it appears from the declaration of the attesting witness Elias Bonoan that when the legatee Luz Lopez presented the supposed will, Exhibit A, to Tomas Rodriguez, she told him to sign said Exhibit A because it was a document relative to the complaint against one Castito, which Exhibit 4, then pending in the justice of the peace court, and for the further reason that said Tomas Rodriguez was then under guardianship, due to his being mentally and physically incapacitated and therefore unable to manage his property and take care of himself. It must also be taken into account that Tomas Rodriguez was an old man 76 years of age, and was sick in the hospital when his signature to the supposed will was obtained. All of this shows that the signature of Tomas Rodriguez appearing in the will was obtained through fraudulent and deceitful representations of those who were interested in it. (Record on Appeal, p. 23) From the decision and judgment above-mentioned the proponents have appealed. Two errors are specified, viz: (1) The court below erred in holding that at the time of signing his will, Tomas Rodriguez did not possess the mental capacity necessary to make the same, and (2) the court below erred in holding that the signatures of Tomas Rodriguez to the will were obtained through fraudulent and deceitful representations, made by persons interested in the executions of said will. The record is voluminous close to two thousand typewritten pages, with a varied assortment of exhibits. One brief contains two hundred seventy-four pages, the other four hundred fifteen pages. The usual oral argument has been had. The court must scale this mountains of evidence more or less relevant and of argument intense and prolific to discover the fertile valleys of fact and principle. The topics suggested by the assignments of error Testamentary Capacity and Undue Influence will be taken up separately and in order. An attempt

will be made under each subject first to make findings of fact quite separate and apart from those of the judge and second to make findings of law and the law by rendering judgment. I. TESTAMENTARY CAPACITY A. Facts. For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His breakdown was undoubtedly due to organic weakness, to advancing years and to an accident which occurred in 1921 (Exhibit 6). Ultimately, on August 10 1923, on his initiative, Tomas Rodriguez designated Vicente F. Lopez as the administrator of his property (Exhibit 7). On October 22, 1923, Margarita Lopez petitioned the Court of First Instance of Manila to name a guardian for Tomas Rodriguez because of his age and pathological state. This petition was opposed by Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for the reason that while Rodriguez was far from strong on account of his years, he was yet capable of looking after his property with the assistance of his administrator, Vicente F. Lopez. The deposition of Tomas Rodriguez was taken and a perusal of the same shows that he was able to answer nearly all of the questions propounded intelligently (Exhibit 5-g). A trial had at which considerable oral testimony for the petitioner was received. At the conclusion of the hearing, an order was issued by the presiding judge, declaring Tomas Rodriguez incapacitated to take care of himself and to manage his property and naming Vicente F. Lopez as his guardian. (Exhibit 37). Inasmuch as counsel for the appellee make such of one incident which occurred in connection with the guardianship proceedings, it may as well be mentioned here as later. This episode concerns the effort of deputy sheriff Joaquin Garcia to make service on Tomas Rodriguez on October 31, 1923. We will let the witness tell in his own words what happened on the occasions in question: I found him lying down on his bed. . . . And when it (the cleaning of his head) was finished, I again entered his room, and told him that I had an order of the court which I wanted to read as I did read to him, but after reading the order he asked me what the order meant; I read it to you so that you may appear before the court, understand, then I read it again, but he asked what the order said; in view of that fact I left the order and departed from the house. (S. R., p. 642.) To return to our narrative possibly inspired by the latter portion of the order of Judge Diaz, Tomas Rodriguez was taken to the Philippine General Hospital on November 27, 1923. There he was to remain sick in bed until his

death. The physician in charge during this period was Dr. Elias Domingo. In the clinical case record of the hospital under the topic Diagnosis (in full), we find the following Senility; Hernia inguinal; Decubitus (Exhibit 8). On the door of the patients room was placed a placard reading No visitors, except father, mother, sisters, and brothers. (Testimony of head nurse physician, there were permitted to visit the patient only the following named persons: Santiago Lopez, Manuel Ramirez, Romana Lopez, Luz Lopez de Bueno, Remedio Lopez, Benita Lopez, Trinidad Vizcarra, Apolonia Lopez, Antonio Haman, and Gregorio Araneta ((Exhibit 9). The list did not include the names of Margarita Lopez and her husband Antonio Ventura. Indeed the last named persons experienced considerable difficulty in penetrating in to the room of Rodriguez. Santiago Lopez states that on one occasion when he was visiting Tomas Rodriguez in the hospital , Rodriguez expressed to him a desire to make a will and suggested that the matter be taken up with Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez communicated to Vicente F. Lopez, who then interviewed Maximino Mina, a practicing attorney in the City of Manila, for the purpose of securing him to prepare the will. In accordance with this request, Judge Mina conferred with Tomas Rodriguez in the hospital in December 16th and December 29th. He ascertained the wishes of Rodriguez and wrote up a testament in rough draft. The attorney expected to return to the hospital on December 31st to have the will executed but was unable to do so on account of having to make a trip to the provinces. Accordingly, the papers were left with Santiago Lopez. In corroboration of the above statements, we transcribe a portion of Judge Minas testimony which has not been challenged in any way: ARANETA: Q. Will you please tell your motive for holding an interview with Vicente Lopez? MAXIMINO MINA: A. Then I arrived in the house of Vicente Lopez, after the usual greeting and other unimportant things, he consulted me or presented the question as to whether or not D. Tomas could make his will, having announced his desire to do so. I told him that it seemed that we were not called upon to decide or give an opinion as to whether or not he can make a will; it is a question to be submitted to the court, but as he had announced his desire, it is our duty to comply with it. Then he requested me to do what was necessary to comply with his wishes: I told him I was to see him; then we agreed that on the morning next to the following evening that is on the 16th, I should go to the General Hospital and so I did.

Q. Did you go to the hospital in the evening of the 16th? A. Yes, sir. Q. Did you meet D. Tomas? A. Yes, sir. Q. Did D. Tomas tell you his desire to make a will? OCAMPO: Leading. ARANETA: I withdraw. What, if anything, did D. Tomas tell you on that occasion when you saw him there? A. He told me that. Q. Please tell us what conversation you had with D. Tomas Rodriguez? A. The conversation I had with him that evening according to my best recollection I cannot tell the exact words and perhaps the order. After the usual greetings, Good evening, D. Tomas, Good evening, How are you, How do you do? Very well, just came here in the name of D. Vicente Lopez why does he not come. He cannot come because he has many things to do, and besides it is hard for him and makes him tired, so he told me to come. Mina, your tenant, attorney. Are you an attorney? Yes. Where do you live? I live in Quiapo. Oh, in Quiapo, a good district, it is gay a commercial place you must have some business there because that is a commercial place. Unfortunately, I have none, D. Tomas. Well, you must be have because the profession alone does not give enough. Where is your office? I work in the office of Mr. Chicote. That Mr. Chicote must be rich, it seems to me that he is. The profession gives almost nothing it is better to have properties. I am an attorney but do not depend upon my profession. I interrupted D. Tomas saying, since you want to make a will, when and to whom do you want to leave your fortune? Then he said, To whom else? To my cousin Vicente Lopez and his daughter Luz Lopez. Which properties do you want to give to your cousin and niece? All my properties, Wont you specify the property to be given to each of them? What for? All my property. Dont you have any other relatives? Yes, sir I have. Wont you give any to those relatives? What for? was his answer. Well, do you want to specify said properties, to say what they are? and he again said, What for? they know them, he is my attorney-in-fact as to all property. I also said, Well and as legacy wont you give property to other persons? answers, I think, something, they will know it. After being asked, Whom do you think, would you want to be your executor? After hesitating a little, This Torres, Manuel or Santiago Lopez also. Then I asked him, What is your religion? He answered, Roman Apostolic Catholic, and then he also asked me, and your? Also Roman Apostolic Catholic, Where have you studied? In the University of Santo Tomas. It is convenient to preserve the Catholic religion that our descendants have left us. And you, what did you have anything more to say

as to your testamentary dispositions? No, he answered. Then I remind him, You know that Vicente Lopez has sent me to get these dispositions of yours, and he said, Yes, do it. I asked him, When do you want it done? Later on, I will send for you. After this believing to have done my duty, I bade him good-bye. Q. Did you have any other occasion to see him? A. Yes. Q. When? A. On December 29, 1923, also in the evening. Q. Why did you go to see him? A. Because as I had not received any message either from Vicente Lopez or Tomas Rodriguez, as I had received notices in connection with the few cases I had in the provinces particularly in Tayabas, which compelled me to be absent from Manila until January 1st at least, for I might be there for several days, so I went to the General Hospital of my own accord since I had not received any messages from them with a rough draft which I had prepared in accordance with what he had told me in our conversation. After the greetings, I told him, Here I am D. Tomas; this is the rough draft of your will in accordance with your former statements to me in order to submit it to you. Do you want to read it? Please do me the favor of reading it. I read it slowly to him in order that he could understand it . After reading, Is it all right, that is the way,- few words you see it takes only a few minutes; now I can execute the will. We can do it takes only a few minutes. In view of that statement of his, I called his attention, But we dont have witnesses, D. Tomas. I looked out through the door to see if I could call some witnesses but it was late then and it was thought better to do it on the 31st of December. Then we talked about other things, and he again asked. Where were you born? I told him in Quiapo. Ah, good district, and especially now that the fiesta of Quiapo is co ming near, and then I interrupted him, Yes, the fiesta of the Holy Child and of Our Lady of Mount Carmel because we also talked about the fiesta of San Sebastian. I again reminded him that we could not do it because the witnesses were not there and he explained, Good Christmas present, isnt it? I did not tell him anything and in view of that I did not deem it necessary to stay there any longer. Q. With whom did you make the arrangement to make the will on the evening of the 31st of December you said that it was agreed that the will be executed on the evening of December 31st? A. With Santiago Lopez and Don Tomas. Q. Was the will executed on the 31st of December? A. What happened is this: In view of that agreement, I fixed up the draft which I had, dating it the 31st of December, putting everything in order; we agreed that Santiago

would meet me on 31st day between five and six in the evening or a little before, but it happened that before the arrival of that date Santiago Lopez came and told me that I need not trouble about going to the General Hospital; because it could not be carried out for the reason that certain requisites were lacking. In view of this and bearing always in mind that on the following day I had to go to the provinces, I told Santiago Lopez that I would leave the papers with him because I might go to the provinces. Q. What may be the meaning of those words good Christmas present? A. They are given a Christmas present when Christmas comes or on the occasion of Christmas. Q. I show you this document which is marked Exhibit A, tell me if that is the will or copy of the will which you delivered to Santiago Lopez on December 21, 31, 1923? A. With the exception of the words 3 de enero de 1924 It seems to be literally identical. (S. R. pp. 244-249.) As the witness stated, the will which was prepared by him is identical with that signed by the testator and the attesting witnesses with the single exception of the change of the date from December 31, 1923, to January 3, 1924. Two copies besides the original of the will were made. The will is brief and simple in terminology. For purposes of record, we copy the will as here translated into English: ONLY PAGE In the City of Manila, Philippines Islands, this January 3, 1924, I, Tomas Rodriguez, of age and resident of the City of Manila, Philippine Islands, do freely and voluntarily make this my will and testament in the Spanish language which I know, with the following clauses: First I declare that I am a Roman Apostolic Catholic, and order that my body be buried in accordance with my religion, standing and circumstances. Second. I name my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno as my only universal heirs of all my property. Third. I appoint D. Manuel Torres and D. Santiago Lopez as my prosecutors. In witness whereof I sign this typewritten will, consisting of one single page, in the presence of the witness who sign below. (Sgd.) TOMAS RODRIGUEZ

(Left marginal signatures:) TOMAS RODRIGUEZ ELIAS BONOAN V. L. LEGARDA A. DE ASIS We hereby certify that on the date and in the place above indicated, Don Tomas Rodriguez executed this will, consisting of one single typewritten page, having signed at the bottom of the will in the presence of us who saw as witnesses the execution of this will, we signed at the bottom thereof in the presence of the testator and of each other. (Sgd.) V. L. LEGARDAELIAS BONOAN A. DE ASIS (Exhibit A.) On the afternoon of January 3, 1924 there gathered in the quarters of Tomas Rodriguez in the Philippine General Hospital, Santiago Lopez and Dr. A. De Asis, attesting witness; and Dr. Elias Fernando Calderon, Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for purposes of observation. (Testimony of Elias Bonoan, S. R., p. 8 of Vl. Legarda, S. R. p. 34. ) Possibly also Mrs. Luz Lopez de Bueno and Mrs. Nena Lopez were present; at least they were hovering in the background. As to what actually happened, we have in the record two absolutely contradictory accounts. One emanates from the attesting witness, Doctor Bonoan. The other is the united testimony of all remaining persons who were there. Doctor Elias Bonoan was the first witness called at the trial. He testified on direct examination as to formal matters, such as the identification of the signatures to the will .On cross-examination, he rather started the proponents of the will by stating that Luz Lopez de Bueno told Tomas Rodriguez to sign the document it concerned a complaint against Castito and that nobody read the will to the testator. Doctor Bonoans testimony along this line is as follows: QUESTIONS. MARCAIDA : Q. Why were you a witness to the will of Tomas Rodriguez? Araneta: I object to the question as being immaterial. Court: Objection overruled. Dr. Bonoan: A. Because I was called up by Mrs. Luz by telephone telling me to be in the hospital at 3 oclock sharp in the afternoon of the 3d of January. Q. Who is that Luz whom you have mentioned? A. Luz Lopez, daughter of Vicente Lopez.

Q. What day, January 3, 1924? A. Yes, sir. Q. When did Luz Lopez talk to you in connection with your going to the hospital? A. On the morning of the 3d she called me up by telephone. Q. On the morning? A. On the morning. Q. Before January 3, 1924, when the will of Tomas Rodriguez was signed, did Luz Lopez talk to you? A. Yes, sir. Q. How many days approximately before was it? A. I cannot tell the day, it was approximately one week before, on that occasion when I was called up by her about the deceased Vicente Lopez. Q. What did she tell you when you went to the house of Vicente Lopez one week approximately before signing the will? A. That Tomas Rodriguez would make a will. Q. Dont you know where the will of Tomas Rodriguez was made? A. In the General Hospital. Q. Was that document written in the hospital? A. I have not seen it. Q. When you went to the General Hospital on January 3, 1924, who were the persons you met in the room where the patients was ? A. I met one of the nieces of the deceased Tomas Rodriguez, Mrs. Nena Lopez and Dna. Luz Lopez. Q. Were those the only persons? A. Yes, sir. Q. What time approximately did you go to the General Hospital on January 3d? A. A quarter to 3. Q. After you, who came? A. Antonio de Asis, Doctor Herrera, later on Doctor Calderon arrived with Doctor Elias Domingo and lastly Santiago Lopez came and then Mr. Legarda. Q. When you entered the room of the patient, D. Tomas Rodriguez, in the General Hospital in what position did you find him?- A. He was lying down. Q. Did you greet D. Tomas Rodriguez? A. I did. Q. Did D. Tomas Rodriguez answer you? A. Dna. Nena immediately answered in advance and introduced me to him saying that I was the brother of his godson.

Q. Did other persons whom you have mentioned, viz, Messrs. Calderon, Herrera, Domingo, De Asis and Legarda greet Tomas Rodriguez? ARANETA: I object to the question as being improper cross-examination. It has not been the subject of the direct examination. COURT: Objection overruled. ARANETA: Exception. A. No, sir, they joined us. Q. What was D. Tomas told when he signed the will.? A. To sign it. Q. Who told D. Tomas to sign the will? A. Luz Lopez. Q. What did Luz Lopez tell Tomas Rodriguez in order that he should sign the will? A. She told him to sign the document; the deceased Tomas Rodriguez before signing the document asked what that was which he was to sign. Q. What did anybody answer to that question of D. Tomas? A. Luz Lopez told him to sign it because it concerned a complaint against Castito. D. Tomas said, What is this? And Luz Lopez answered, You sign this document, uncle Tomas, because this is about the complaint against Castito. Q. Then Tomas Rodriguez signed the will? A. Yes, sir. Q. Who had the will? Who was holding it? A. Mr. Vicente Legarda had it his own hands. Q. Was the will signed by Tomas Rodriguez lying down, on his feet or seated? A. Lying down. Q. Was the will read by Tomas Rodriguez or any person present at the time of signing the will, did they read it to him? A. Nobody read the will to him. Q. Did not D. Tomas read the will? A. I have not seen it. Q. Were you present? A. Yes, sir. ( S. R. p. 8) As it would be quite impracticable to transcribe the testimony of all the others who attended the making of the will, we will let Vicente L. Legarda, who appears to have assumed the leading role, tell what transpired. He testified in part: ARANETA : Q. Who exhibited to you those documents, Exhibits A, A-1, and A-2?

LEGARDA: A. Santiago Lopez. Q. Did he show you the same document? A. First that is to say the first document he presented to me was a rough draft, a tentative will, and it was dated December 31st, and I called his attention to the fact that the date was not December 31, 1923, and that it was necessary to change the date to January 3, 1924, and it was done. Q. And it was then, was it not when Exhibits A, A-1, and A-2 were written? A. Yes, sir. Q. Do you any know where it was written? A. In the General Hospital. Q. Did any time elapse from your making the suggestion that the document which you delivered to Santiago Lopez be written until those three Exhibits A, A-1, and A-2 were presented to you? A. About nine or ten minutes approximately. Q. The time to make it clean? A. Yes, sir. Q. Where were you during that time? A. In the room of D. Tomas Rodriguez. Q. Were you talking with him during that time. A. Yes, sir. Q. About what things were you talking with him? A. He was asking me about my health, that of my family how my family was my girl, whether we were living in Pasay, he asked me about the steamer Ildefonso, he said that it was a pity that it had been lost because he knew that my father-in-law was the owner of the steamer Ildefonso. xxxxxxxxx Q. When those documents, Exhibit A, A-1, and A-2, that is the original and two copies of the will signed by D. Tomas Rodriguez were written clean, will you please tell what happened? A. When Santiago Lopez gave them to me clean, I approached D. Tomas Rodriguez and told him: Don Tomas, here is this will which is ready for your signature. Q. What did D. Tomas do when you said that his will you were showing to him was ready? A. The first thing he asked was: the witnesses? Then I called the witnesses Gentlemen, please come forward, and they came forward, and I handed the documents to D. Tomas. D. Tomas got up and then took his eyeglasses, put them on and as he saw that the electric lamp

at the center was not sufficiently clear, he said: There is no more light; then somebody came forward bringing an electric lamp. Q. What did D. Tomas do when that electric lamp was put in place? A. The eyeglasses were adjusted again and then he began to read, and as he could not read much for a long time, for he unexpectedly felt tired and took off the eyeglasses, and as I saw that the poor man was tired, I suggested that it be read to him and he stopped reading and I read the will to him. Q. What happened after you had read it to him? A. He said to me, Well, it is all right. It is my wish and my will. Dont you have any pen? I asked a pen of those who were there and handed it to D. Tomas. Q. Is it true that Tomas Rodriguez asked at that time What is that which I am going to sign? and Luz Lopez told him: It is in connection with the complaint against Castito? A. It is not true, no, sir. Q. During the signing of the will, did you hear Luz Lopez say anything to Tomas Rodriguez? A. No, Sir, she said nothing. Q. According to you, Tomas Rodriguez signed of his own accord? A. Yes, sir. Q. Did nobody tell him to sign? A. Nobody. Q. What happened after the signing of the will by Tomas Rodriguez? A. I called the witnesses and we signed in the presence of each other and of Tomas Rodriguez. Q. After the signing of the will, did you have any conversation with Tomas Rodriguez? A. Doctor Calderon asked D. Tomas Rodriguez some questions. Q. Do you remember the questions and the conversation held between Doctor Calderon and D. Tomas after the signing of the will? A. I remember that afterwards Doctor Calderon talked to him about business. He asked him how the business of making loans at 18 per cent. It seems that Tomas Rodriguez answered: That loan at 18 per cent is illegal, it is usury. (S. R., p. 38.) In addition to the statements under oath made by Mr. Legarda, an architect and engineer in the Bureau of Public Works and professor of engineering and architecture in the University of Santo Tomas, suffice it to say that Luz Lopez de Bueno denied categorically the statements attributed to her by Doctor Bonoan (S. R., p. 568). In this stand, she is corroborated by Doctor Calderon, Domingo, and Herrera, the attending physicians. On this point, Doctor Calderon the Director of the Philippine General Hospital and Dean of the College of Medicine in the University of the Philippines, testified:

Mr. ARANETA: Q. What have you seen or heard with regard to the execution of the will? Dr. CALDERON: A. Mr. Legarda handled the will to D. Tomas Rodriguez. D. Tomas asked for his eyeglass, wanted to read and it was extremely hard for him to do so. Mr. Legarda offered to read the will, it was read to him and he heard that in that will Vicente Lopez and Luz Lopez were appointed heirs; we also saw him sign that will, and he signed not only the original but also the other copies of the will and we also saw how the witnesses signed the will; we heard that D. Tomas asked for light at that moment; he heard that D. Tomas asked for light at that moment; he was at that time in a perfect mental state. And we remained there after the will was executed. I asked him, How do you feel, how are you? Well I am well, he answered. How is the business? There is a crisis at there is one good business, namely, that of making loans at the rate of 18 per cent, and he answered, That is usury.; When a man answers in that way, That is usury it shows that he is all right. Q. Were you present when Mr. Legarda handed the will to him? A. Yes, sir. Q. Did any person there tell Don Tomas that was a complaint to be filed against one Castito? A. No, sir, I have not heard anything of the kind. Q. It was said here that when the will was handed to him, D. Tomas Rodriguez asked what that was which he was to sign and that Luz Lopez answered, That is but a complaint in connection with Castito. Is that true? A. I have not heard anything of the kind. Q. Had anybody told that to the deceased, would you have heard it? A. Yes, sir. Q. Was Luz Lopez there? A. I dont remember having seen her; I am not sure; D. Santiago Lopez and the three witnesses were there; I dont remember that Luz Lopez was there. Q. Had anybody told that to the deceased, would you have heard it? A. Yes, sir. Q. Do you remember whether he was given a pen or he himself asked for it? A. I dont know; it is a detail which I dont remember well; so that whether or not he was given a pen or he himself asked for it, I do not remember. Q. But did he sign without hesitation ? A. With no hesitation. Q. Did he sign without anybody having indicated to him where he was to sign? A. Yes, without anybody having indicated it to him. Q. Do you know whether D. Tomas Rodriguez asked for more light before signing? A. He asked for more lights, as I have said before. Q. Do you remember that detail? A. Yes, sir. They first lighted the lamps, but as the light was not sufficient, he asked for more light. Q. Do you remember very well that he asked for light? A. Yes, sir. (S. R. p.993).

A clear preponderance of the evidence exists in favor of the testimony of Vicente Legarda, corroborated as it is by other witnesses of the highest standing in the community. The only explanation we can offer relative to the testimony of Doctor Bonoan is that possibly he may have arrived earlier than the others with the exception of Luz Lopez de Bueno, and that Luz Lopez de Bueno may have made some sort of an effort to influence Tomas Rodriguez. There is however no possible explanation of the statement of Doctor Bonoan to the effect that no one read the will to Rodriguez when at least five other persons recollect that Vicente Legarda read it to him and recall the details connected with the reading. There is one curious occurrence which transpired shortly after the making of the will which should here be mentioned. It is that on January 7, 1923 (1924), Luz Lopez de Bueno signed a document in favor of Doctor Bonoan in the amount of one thousand pesos (P1,000). This paper reads as follow: Be it know by these present: That I, Luz Lopez de Bueno in consideration of the services which at my instance were and will when necessary be rendered by Dr. Elias Bonoan in connection with the execution of the will of my uncle, Don Tomas Rodriguez and the due probate thereof, do hereby agree to pay said doctor, by way of remuneratory donation, the sum of one thousand pesos (P1,000), Philippine currency, as soon as said services shall have been fully rendered and I shall be in possession of the inheritance which in said will is given to me. In witness whereof, I sign this document which was freely and spontaneously executed by me in Manila, this January 7, 1923. (Sgd.) LUZ LOPEZ DE BUENO (Exhibit 1) There is a sharp conflict of testimony, as is natural between Doctor Bonoan and Luz Lopez de Bueno relative to the execution of the above document. We shall not attempt to settle these differences as in the final analysis it will not affect the decision one way or the other. The most reasonable supposition is that Luz Lopez de Bueno imprudently endeavored to bring over Doctor Bonoan to her side of the race by signing and giving to him Exhibit 1. But the event cannot easily be explained away. Tomas Rodriguez passed away in the Philippine General Hospital, as we said on February 25, 1924. Not even prior to his demise the two actions in the Lopez family had prepared themselves for a fight over the estate. The Luz Lopez faction had secured the services of Doctor Domingo, the physician in charge of the Department of Insane of San Lazaro Hospital an Assistant Professor of Nervous and Mental Diseases in the University of the Philippines, as attending physician; as associated with him for purposes of investigation Dr. Fernando Calderon the Director of the Philippine General

Hospital and Dr. Florentino Herrera, a physician in active practice in the City of Manila; and had arranged to have two members of the medical fraternity, Doctors De Asis and Bonoan as attesting witnesses. The Margarita Lopez faction had taken equal precautions by calling a witnesses in the guardship proceedings Dr. Sixto de los Angeles Professor and Chief of the Department of Legal Medicine in the University of the Philippines, and Dr. Samuel Tietze, with long experience in mental diseases; thereafter by continuing Doctors de Los Angeles and Tietze to examine Tomas Rodriguez and by associating with them Dr. William Burke, a well-known physician of the City of Manila. Skilled lawyers were available to aid and abet the medical experts. Out of such situations, do will contests arise. An examination of the certificates made by the two sets of physicians and of their testimony shows that on most facts they concur. Their deductions from these facts disclose a substantial divergence of opinion. It is a hopeless task to try to reconcile the views of these distinguished gentlemen who honestly arrived at definite but contradictory conclusions. The best that we can do under the circumstances is to set forth the findings of the Calderon committed on the hand and of the De Los Angeles committee on the other. Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez individually and jointly before the date when the will was executed. All of them, as we have noticed were, present at the signing of the will to note the reactions of the testator. On the same day that the will was accomplished, the three doctors signed the following certificate: The undersigned, Drs. of Medicine, with offices in the City of Manila, and engaged in the practice of their profession do hereby certify: That they have jointly examined Mr. Tomas Rodriguez, confined in the General Hospital, floor No. 3, room No. 361 on three different occasion and on different days and have found that said patient is suffering from anemia, hernia inguinal, chronic dyspepsia and senility. As to his mental state the result of the different tests to which this patient was submitted is that his intellectual faculties are sound, except that his memory is weak, which is almost a loss for recent facts, or events which have recently occurred, due to his physical condition and old age. They also certify that they were present at the time he signed his will on January 3, 1924, at 1:25 p.m. and have found his mental state in the same condition as was found by the undersigned in their former examination and that in executing said will the testator and full knowledge of the contents thereof. In testimony whereof, we sign in Manila this January 3, 1924. (Sgd.) FLORENTINO HERRERA Tuberias 1264 Quiapo

(Sgd.) Dr. FERNANDO CALDERONGeneral (Sgd.) Dr. ELIAS DOMINGO613 RemediosMalate

HospitalManila

(Exhibit E in relation with Exhibits C and D.) Doctor Calderon while on the witness-stand expressed a definite opinion as to the mentality of Tomas Rodriguez What follows is possibly the most significant of the doctors statements: Dr. CALDERON testifying after interruption: A. I was naturally interested in finding out the true mental state of Tomas Rodriguez and that was the chief reason why I accepted and gave my cooperation to Messrs. Elias Domingo and Florentino Herrera because had I found that Tomas Rodriguez and Florentino Herrera because had I found that Tomas Rodriguez was really insane, I should have ordered his transfer to the San Lazaro Hospital or to other places, and would not have left him in the General Hospital. Pursuant to my desire, I saw Tomas Rodriguez in his room alone twice to have interviews with his, he begging a person whom I knew since several years ago; at the end of the interviews I became convinced that there was nothing wrong with him; I had not seen anything indicating that he was insane and for this reason I accepted the request of my companions and joined them; we have been on five different occasions examining Tomas Rodriguez jointly from the physical standpoint but chiefly from the standpoint of his mental state; I have been there with Messrs. Herrera and Elias Domingo, examining Tomas Rodriguez and submitting to a mental test on the 28, 29, 10 and 31 of December and the 22nd of January, 1924 five consecutive days in which he have been together besides my particular visits. Q. Will you place state the result of the observation you made alone before those made by the three of you jointly? A. I asked Tomas Rodriguez some questions when I went alone there, I asked him were he was living formerly and he well remembered that in Intramuros, Calle Real; I asked him whether he remembered one Calderon who was living in the upper floor of the house and then he told me yes; than I asked him about his tenant by the name of Antonio Jimenez and he told me yes, now I remember that he had two daughters, Matilde and Paz. Then I told him that I had been living in the house of the gentlemen, Antonio Jimenez already dead in the upper story of the house belonged to Tomas Rodriguez; I told him that Antonio Jimenez was his tenant of the upper story, that is that he was living on the ground floor and Antonio Jimenez upstairs and he remembered all of this I also began to talk of my brother, Felipe Calderon, who he said of course that he knew; he remembered him because he was his companion and was a successful attorney. This was when I had an interview with him. Then in

order to observe better and to be sure of my judgment or opinion about the mental state of Tomas Rodriguez, I saw him again and we began to speak of something which I dont remember now. In fine, we talked of things of interest and as I had finally accepted the request of Drs. Elias Domino and Florentino Herrera to join then the first and second time that Herrera, Domingo and myself went there, no stenographic notes were taken of what happened there. Q. So that before joining Doctors Herrera and Domingo you had already paid two visits to the patient? A. Yes, sir. Q. From the result f the conversation you had with Tomas Rodriguez on those two visits what is your opinion as to his mental capacity? A. That he was sick; that he was weak, but I have found absolutely no incoherence in his ideas; he answered my questions well and as I was observing him there were times when he did not remember things of the present because this must be admitted but on the other hand he had a wonderful memory of past events; in talking with him, you would not notice in the conversation any alteration in his mind nor that man had lost the reasoning power or logic. Q. Did you notice any loss of memory, or that his memory was weakening about things of the past? A. About things of the past, I mean that you talk to him now about specific matters, and after about five or ten minutes he no longer remembers what had been talked of. xxxxxxxxx Q. Do you remember the conversation you had with him for the first time when the three of you paid a visit to the patient? A. I dont remember the details, but I do remember the questions I put to him. I asked D. Tomas Rodriguez: You are an old man aged, sick: Yes, I am thinking to make a will. But why dont you decide? There is no hurry there is time to make a will, he said. Then in case you decide to make a will, to whom are you going to leave your property? Dont you have any relatives? I have a relative, Vicente Lopez, my first cousin, and Margarita Lopez my first cousin they are brothers. In that case, to whom, do you want to leave your property? Why, I dont have much, very little, but I am decided to leave it to my cousin, Vicente Lopez and his daughter Luz Lopez. Why would you not give anything to Margarita Lopez? No because her husband is very bad, to use his exact language is very bad. Q. Did you talk with him on that occasion about his estate? A. Yes, sir, he told me that he had three estates, one on Calle Magallanes, another on Calle Cabildo and the third on Calle Juan Luna and besides he had money in the Monte de Piedad and Hogar Filipino.

xxxxxxxxx Q. From the question made by you and the answers given by Mr. Tomas Rodriguez on that occasion, what is your opinion as to his mental capacity? A. The following: That the memory of Tomas Rodriguez somewhat failed as to things of the present, but is all right with regard to matters or facts of the past; that his ideas were incoherent; that the thought with logic, argued even with power and generally in some of the interviews I have arrived at the conclusion that Tomas Rodriguez had an initiative of his own, did not need that anybody should make him any suggestion because he answered in such a way that if you permit me now to show you my stenographic notes, they will prove to you conclusively that he had an initiative of his own and had no need of anybody making him any question. (S. R. p. 72.) Doctor Elias Domingo, who was the attending physician for Tomas Rodriguez throughout all the time that Rodriguez in the hospital had examined him, was likewise certain that Rodriguez possessed sufficient mentality to make a will. Among other things, Doctor Domingo testified: ARANETA: Q. Have you known D. Tomas Rodriguez? Dr. DOMINGO: A. Yes, sir. Q. Did you attend D. Tomas Rodriguez as physician? A. Yes, sir. Q. When did you begin to attend him as physician? A. On November 28, until his death. Q. On November 28 or October 28, 1923, do you remember? A. I had been attending him as physician from November 28th although it true that I had opportunities to see and examine him during the months of October and November. Q. What was the object of your visits or attendance during the months of October and November? A. It was for the purpose of observing his mental state. Q. Did you really examine his mental condition or capacity during the months of October and November? A. Yes, sir. Q. How many times did you visit him? A. I dont remember exactly but I visited him about five or six times. xxxxxxxxx Q. Please tell us the result of your examination during those months of October and November? A. I examined him physically and mentally; I am not going to tell here the physically result but the result of the mental examination, and that is: General Conduct: In most of the times that I have seen him I found him lying on his bed, smoking a cigarette and asked for a

bottle of lemonade from time to time; I also observed that he was very careful when throwing the ash of the cigarette, seeing to it that it did not fall on the blankets; he also was careful not to throw the stub of the cigarette in any place to avoid fire; I made more observations as to his general conduct and I found that sometimes Don Tomas could move within the place although with certain difficulty. On two occasions I found him seated, once seated at the table, seated in the chair, and other on a rocking chair. I also examined his manner of talking and to all questions that I put to him he answered with a coherence and in a relevant manner, although sometimes he showed eagerness and certain delay. I based these points of my declaration on the questions which are usually asked when making a mental examination for instance I asked him, What is your name, and he correctly answered Tomas Rodriguez; I asked him if he was married and he answered No; I asked him his profession and he answered that formerly he was an attorney but that at the time I was making the examination he was not practising the profession; I asked him with what he supported himself and he said that he lived upon his income, he said verbatim, I live on my income. I also asked him what the amount of him income was and he answered that it was about P900; I asked him what the source of this income was and he said that it came from his property. Q. Did you ask him about his property? A. No, at that time. Q. Proceed. A. I also observed his emotional status and effectivity. I found it rather superficial, and he oftentimes got angry due to his physical disease; I asked him if he had any relatives and he answered correctly saying that he had. He mentioned Vicente Lopez, Margarita Lopez, and Luz Lopez. As to his memory. His memory of the past. He very easily remembered past events and when he described them he did it with such pleasure the he used to smile afterwards if it was a fact upon which one must smile, His memory of recent facts was very much lessened. I say this because on various occasions and not having known me when he had a better memory, after I had seen him thrice he remembered my name and he recognized me. Insight and judgment. I arrived at the conclusion that he had fair knowledge of himself because he knew that he was sick and could not be moving with ease, but he believed that he could perform with sufficient ease mental acts; his judgment was also all right because I asked him this question: Supposing that you could find a bill of P5 in the vestibule of a hotel, what would you do with it ? He told me that he would take the bill and give it to the manager in order that the latter may look for the owner if possible. His reasoning. I found that he showed a moderated retardation in the flow of his thought, especially with regard to recent events, but was quite all right as to past events, His capacity, He believed that he was capable of thinking

properly although what did not permit him to do so was his physical decrepit condition. The conclusion is that his memory is lost for recent events tho not totally and diminution of his intellectual vigor. This is in few words the result of my examination. Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke. Doctor De los Angeles had been a witness in the gurardianship proceedings and had seen the patient of November 6 and 7, 1923. Doctor Tietze had also been a witness in the guardianship case and had visited the patient on November 9 and 12, 1923, and on January 15, 1924. Doctors Tietze and Burke together examined Rodriguez on January 17, 20, and 24, 1924. The three physicians conducted a joint examination result, on March 15, 1924, they prepared and signed the following: MEDICAL CERTIFICATE In the Matter of Tomas Rodriguez y Lopez, male, 76 years of age, single and residing or being confined in the Philippine General Hospital. We, the undersigned Doctors, Sixto de los Angeles, W. B. Burke, and Samuel Tietze, do hereby certify as follows: 1. That we are physicians, duly registered under the Medical Act, and are in the actual practice of the medical profession in the Philippines. 2. That on January 27th and 28th, and February 10th, 1924, at the Philippine General Hospital, we three have with care the diligence jointly and personally examined the person of said Tomas Rodriguez y Lopez; and previous to these dated, we have separately and partly jointly observed and examined said patient on various occasions; Dr. Sixto de los Angeles, at the patients home, 246 Magallanes St., Manila, on November 6th and 7th , 1923; Dr. Samuel Tietze, at the patients home on November 9th and 12th, 1923, and at the Philippine General Hospital no January 17th, 20th, and 24, 1924; and as a result of the medical examinations and the history of the case we found and hereby certify to the following conclusions: (a) That he was of unsound mind suffering from senile dementia, or of mental impairment exceeding to a pathological extent the unusual conditions and changes found to occur in the involutional period of life. (b) That he was under the influence of the above condition continuously, at least from November, 1923, till the date of our joint reexamination, January 27th and 28th, and February 10th, 1924; and that he would naturally have continued without improvement, as these cases of insanity are due to organic pathological changes of the brain. This form of mental disease is progressive in its pathological tendency, going on to progressive atropy and degeneration of the brain, the mental symptoms, of course, running parallel with such pathological basis.

(c) That on account of such disease and conditions his mind and memory were so greatly impaired as to make him unable to know or to appreciate sufficiently the nature, effect, and consequences of the business he was engaged in; to understand and comprehend the extent and condition of his properties; to collect and to hold in his mind the particulars and details of his business transactions and his relations to the persons who were or might have been the objects of his bounty; and to free himself from the influences of importunities, threats and ingenuities, so that with a relatively less resistance, he might had been induced to do what others would not have done. 3. We have diagnosed this case as senile demential of the simple type, approaching the deteriorated stage upon the following detailed mental examination: (a) Disorder of memory. There was almost an absolute loss of memory of recent events, to the extent that things and occurrences seen or observed only a few minutes previously were completely forgotten. Faces and names of person introduced to him were not remembered after a short moment even without leaving his bedside . He showed no comprehension of the elemental routine required in the management of his properties, i.e.: who were the lessees of his houses, what rents they were paying, who was the administrator of his properties, in what banks he deposited his money or the amount of money deposited in such banks. Regarding his personal relation, he forgot that Mr. Antonio Ventura is the husband of his nearest woman cousin; the Mrs. Margarita Lopez was married, saying that the latter was single or spinster, in spite of the fact that formerly, during the past twentyfive years, he was aware of their marriage life, He did not know the names of the sons and daughters of Mr. Vicente Lopez, one of his nearest relatives, even failing to name Mrs. Luz Lopez de Bueno, a daughter of said Vicente Lopez, and who now appears to be the only living beneficiary of his will. He also stated that Mr. Vicente Lopez frequently visited him in the hospital, though the latter died on January 7th, 1924. He did not recognized and remember the name and face of Doctor Domingo, his own physician. However, the memory for remote events was generally good, which is a characteristic symptom of senile dementia. (b) Disorientation of time, place and persons. He could not name the date when asked (day or month); could not name the hospital wherein he was confined; and failed to recognize the fact that Doctor Domingo was his physician. (c) Disorders of perception. He was almost completely indifferent to what was going on about him. He also failed to recognize the true value of objects shown him, that is he failed to recognized the Saturday Evening Post nor

would he deny that it was a will when presented as such. He also failed to show normal intellectual perception. Making no effort to correlate facts or to understand matters discussed in their proper light. (d) Emotional deterioration. The patient was not known during his time of physical incapacity to express in any way or lament the fact that he was unable to enjoy the happiness that was due him with his wealth. As a matter of fact, he showed complete indifference. He showed loss of emotional control by furious outbreaks over trifling matter and actually behaved like a child; for example, if his food did not arrive immediately of when his cigar was not lit soon, he would becomes abusive in his language and show marked emotional outburst. If the servants did not immediately answer his call, he would break down and cry as a child. (e) Symptoms of decreased intellectual capacity. There was a laxity of the internal connection of ideas. The patient has shown no insight regarding his own condition. He did not appreciate the attitude of the parties concerned in his case; he would on several occasion become suspicious and fail to comprehend the purpose of our examination. He was inconsistent in his ideas and failed to grasp the meaning of his own statements. When questioned whether he would make a will, he stated to Doctor Tietze that he intended to bequeath his money to San Juan de Dios Hospital and Hospicio de San Jose. When He was informed, however, that he had made a will on January 31, 1924, he denied the latter statement, and failed to explain the former. Although for a long time confined to bed and seriously ill for a long period, he expressed himself as sound physically and mentally, and in the false belief that he was fully able to administer his business personally. His impairment of the intellectual field was further shown by his inability, despite his knowledge of world affairs, to appreciate the relative value of the statement made by Doctor Tietze as follows: We have here a cheque of P2,000 from the King of Africa payable to you so that you may deposit it in the bank. Do you want to accept the cheque? His answer was as follows: Now I cannot give my answer. It may be a surprise. Such answer given by a man after long experience in business life, who had handled real estate property, well versed in the transaction of cheques, certainly shows a breaking down of the above field. No proper question were asked why the cheque was given by the King, who the King was, why he was selected by the King of Africa, or if there is a King of Africa at present. He further shows doubt in his mental capability by the following questions and answers: MARCAIDA: P. Tiene usted actualmente algn asunto en los tribunales de justicia de Manila? R. No recuerdo en este momento. P. De tener usted algn asunto propio en los tribunales de justicia de

Manila, a qu abogado confiara usted la defensa del mismo?R. Al Sr. Marcaida, como conocido antiguo. P. Ha hablado usted y conferenciado alguna vez o varias veces en estos das, o sea desde el 25 de octubre de 1923 hasta hoy, con algn abogado para que le defendiera algn asunto ante el Juzgado de Primera Instancia de Manila?R. Con ninguno, porque en caso de nombrar, nombrara al Sr. Marcaida. (P. 5, deposition, Nov. 19, 1923.) ARANETA: P. No recuerda usted que usted me ha encomendado como abogado para que me oponga a que le declaren a usted loco o incapacitado?R. S, seor, quien ha solicitado? (P. 9, deposition, Nov. 19, 1923.) Dr. DOMINGO: P. Don Toms, me conoce usted? Se acuerda usted que soy el Doctor Domingo?R. S. (P. 7, sten. N., Jan. 28, 1924.) P. Quin soy, Don Toms, usted me conoce?R. No s. (P. 6, sten. N., Feb. 10, 1924.) Dr. NGELES: P. Me conoce usted, D. Toms?R. Le conozco de vista. (P. 6, sten. N., Jan. 28, 1924.) P. Nos vamos a despedir ya, Don Toms, de usted. Yo soy el Doctor ngeles, me conoce usted?R. De nombre. P. Este es el Doctor Burke, le conoce usted?R. De nombre. P. Este es el Doctor Domingo, le conoce usted?R. De vista. P. Este es el Doctor Burke, recuerda usted su nombre?R. No. (P. 10, sten. N., Jan. 28, 1924.) P.Usted conoce a este Doctor? (Sealando al Doctor Burke).R. De vista; su nombre ya lo he olvidado, ya no me acuerdo. P.Usted nos ve a los tres? (Doctores ngeles, Burke y Tietze).R. Ya lo creo. Dr. BURKE: P. Qu profesin tenemos? (Sealando a los Sres. ngeles, Burke y Tietze).R. YO creo que son doctores. P. Y lso dos? (Sealando a los Doctores ngeles y Tietze).R. No. s. P. Y este seor? (Sealando al Doctor ngeles).R. No me acuerdo en este momento. (P. 4. And 5, sten. N., Feb. 10, 1924.) (f) Other facts bearing upon the history of the case obtained by investigation of Doctor Angeles: I. Family History. His parents were noted to be of nervous temper and irritable. II. Personal history. He was a lawyer, but did not pursue his practice, devoting the greater part of his life to collecting antiquities, He was generally regarded by his neighbors as miserly and erratic in the ordinary habits of life. He lead a very unhygienic life, making no attempt to clean the filth of

dirt that was around him. He was neglectful in personal habits. On April, 1921, he suffered an injury to his forehead, from which he became temporarily unconscious, and was confined in the Philippine General Hospital for treatment. He frequently complained of attacks of dizziness and headache, following this injury; suffered form a large hernia; and about two years ago, he was fined for failure in filing his income tax, from which incident, we have reason to believe, the onset of his mental condition took place. This incident itself can most probably be considered as a failure of memory. His condition became progressively worse up to his death. 4. The undersigned have stated all the above facts contained in this certificate to the best of our knowledge and belief. Manila, P.I., March 15, 1924. (Sgd.) SIXTO DE LOS ANGELES W.B. BURKE, M.D. SAMUEL TIETZE (Exhibit 33 in relation with Exhibits 28 and 29.) Another angle to the condition of the patient on or about January 3, 1924, is disclosed by the treatment record kept daily by the nurses, in which appear the nurses remarks. (Exhibits 8-A, 8-B, and 8-C.) In this connection, the testimony of the nurses is that Rodriguez was in the habit for no reason at all of calling Maria, where are my 50 centavos, where is my key. In explanation of the observation made by the nurses, the nurse Apolonio Floreza testified. Direct questions of Attorney OCAMPO: Q. Among your observations on the 1st of January, 1924, you say with pains all over the body, and uttered some incoherent words of the same topics whenever is awakened. How could you observe that he had pains all over the body? APOLONIO FLOREZA, nurse: A. I observed that by the fact that whenever I touched the body of the patient he complained of some pain. Q. On what part of the body did you touch him? A. On all the parts of his body. xxxxxxxxx Q. How did you touch him, strongly or not? A. Slightly. Q. When you touched him slightly, what did he do? A. He said that it was aching. Q. What words did he say when, according to your note, he uttered incoherent words whenever he awakes? A. As for instance, Maria, repeating it Where are my 50 centavos, where is my key?

Q. Did you hear him talk of Maria? A. Only the word Maria. Q. How long approximately was he talking uttering the name of Maria, Where are my 50 centavos, and where is my key? A. For two or three minutes. Q. Can you tell the court whether on those occasions when he said the name of Maria he said other words and was talking with somebody? A. He was talking to himself. Q. This remark on Exhibit 8-B when was it written by you? A. January 2, 1924. Q. In the observation correspondingly to January 2, 1924 you say, With pains over the body, and later on talked too much whenever patient is awakened. How did you happen to know the pain which you have noted here? A. The pains all over the body, I have observed them when giving him baths. Q. Besides saying that it ached when you touched the body, do you know whether he did any extraordinary thing? A. You mean to say acts? Q. Acts or words? A. Yes, sir, like those words which I have already said which he used to say Maria, the key, 50 centavos. Q. You say that he called Maria. What did he say about Maria on that date January 2, 1924? A. He used to say Maria where is Maria? Q. On that date January 2, 1924, did you answer him when he said Maria? A. No sir. Q. In this observation of yours appearing on page 8-C you say among other things with pain all over the body and shouted whenever he is given injection. Did you really observe this in the patient? A. Yes, sir. Q. How did he shout? ARANETA: Objection as being immaterial. COURT: Overruled. ARANETA: Exception. A. In a loud voice. Q. Besides shouting do you remember whether he said anything? A . He repeated the same words I have said before Maria the 50 centavos the key. Q. When did this observation occur which appear on page 8-C? A. On January 3, 1924. (S. R. p. 5595.) On certain facts pertaining to the condition of Tomas Rodriguez there is no dispute. On January 3, 1924, Rodriguez had reached the advanced age of 76 years. He was suffering from anemia, hernia inguinal, chronic dypsia, and senility. Physically he was a wreck. As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors

Calderon, Domingo and Herrera admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke, further declare that his memory however for remote events was generally good. He was given to irrational exclamations symptomatic of a deceased mind. While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the patient are sound, except that his memory is weak, and that in executing the will the testator had full understanding of the act he was performing and full knowledge of the contents thereof, Doctors De Los Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they diagnosed his case as senile dementia of the simple type approaching the deteriorated stage. Without attempting at this stage to pass in judgment on the antagonistic conclusions of the medical witnesses, or on other disputed point, insofar as the facts are concerned, a resolution of the case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will, or had he passed so far along in senile dementia as to require the court to find him of unsound? We leave the facts in this situation to pass on to a discussion of the legal phases of the case. B. Law. The Code of Civil Procedure prescribes as a requisite to the allowance of a will that the testator be of sound mind (Code of Civil Procedure, sec. 614). A sound mind is a disposing mind. One of the grounds for disallowing a will is If the testator was insane or otherwise mentally incapable of the execution. (Code of Civil Procedure, sec. 634 [2].) Predicated on these statutory provisions, this court has adopted the following definition of testamentary capacity: Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the property to be disposed of and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty. (Bugnao vs. Ubag [1909], 14 Phil., 163, followed in Bagtas vs. Paguio [1912], 46 Phil., 701.) The mental capacity of the testator is determined as of the date of the execution of his will (Civil Code, art. 666). Various tests of testamentary capacity have been announced by the courts only later to be rejected as incomplete. Of the specific tests of capacity, neither old age, physical infirmities, feebleness of mind, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly or jointly to show testamentary incapacity. Each case rests on its own facts and must be decided by its own facts. There is one particular test relative to the capacity to make a will which is of some practical utility. This rule concerns the nature and rationality of the

will. Is the will simple or complicated? Is it natural or unnatural? The mere exclusion of heirs will not, however, in itself indicate that the will was the offspring of an unsound mind. On the issue of testamentary capacity, the evidence should be permitted to take a wide range in order that all facts may be brought out which will assist in determining the question. The testimony of subscribing witnesses to a will concerning the testators mental condition is entitled to great weight where they are truthful and intelligent. The evidence of those present at the execution of the will and of the attending physician is also to be relied upon. (Alexander on Willis, vol. I, pp. 433, 484; Wharton & Stilles Medical Jurisprudence, vol. I pp. 100 et seq.) The presumption is that every adult is sane. It is only when those seeking to overthrow the will have clearly established the charge of mental incapacity that the courts will intervene to set aside a testamentary document. (Hernaez vs. Hernaez [1903], 1 Phil., 689; Bagtas vs. Paguio, supra.) Counsel for the appellee make capital of the testator being under guardianship at the time he made his will. Citing section 306 of the Code of Civil Procedure and certain authorities, they insist that the effect of the judgment is conclusive with respect to the condition of the person. To this statement we cannot write down our conformity. The provisions of the cited section were taken from California, and there the Supreme court has never held what is now urged upon us by the appellee. The rule announced that in some states, by force of statute, the finding of insanity is conclusive as to the existence of insanity during the continuance of adjudication, is found to rest on local statutes, of which no counterpart is found in the Philippines. (32 C.J., 647; Gridley vs. Boggs [1882], 62 Cal., 190; In the matter of the Estate of Johnson [1881], 57 Cal., 529.) Even where the question of insanity is out in issue in the guardianship proceedings, the most that can be said for the finding is that it raises a presumption of incapacity to make a will but does not invaluable the testament if competency can be shown. The burden of providing sanity in such case is cast upon the proponents. It is here claimed that the unsoundness of mind of the testator was the result of senile dementia. This is the form of mental decay of the aged upon which will are most often contested. A Newton, Paschal, a Cooley suffering under the variable weather of the mind, the flying vapors of incipient lunacy, would have proved historic subjects for expert dispute. Had Shakespeares King Lear made a will, without any question it would have invited litigation and doubt. Senile dementia usually called childishness has various forms and stages. To constitute complete senile dementia there must be such failure of the mind as to deprive the testator of intelligent action,. In the first stages of the

diseases, a person may possess reason and have will power. (27 L. R. A., N. S. [1910], p. 89; Wharton & Stilles Medical Jurisprudence, vol. I. pp. 791 et seq.; Schouler on Wills, vol. I, pp. 145 et seq.) It is a rather remarkable coincidence that of all the leading cases which have gone forth from this court, relating to the testator having a sound and disposing mind, and which have been brought to our notice by counsel, every one of them has allowed the will, even when it was necessary to reverse the judgment of the trial court. A study of these cases discloses a consistent tendency to protect the wishes of the deceased whenever it be legally possible. These decisions also show great tenderness on the part of the court towards the last will and testament of the aged. (See Hernaez vs. Hernaez [1903], 1 Phil., 689, per Arellano, C. J., In the matter of the will o f Butalid [1908] 10 Phil., 27 per Arellano, C. J.; Bugnao vs. Ubag [1909] 14. Phil., 163, per Carson, J.; Macapinlac vs. Alimurong [1910], 16 Phil., 41, per Arellano, C.J.; Bagtas vs. Paguio [1912], 22 Phil., 227, per Trent, J.; Galvez vs. Galvez [1913], 26 Phil., 243, per Torres, J.; Samson vs. Corrales Tan Quintin [1923], 44 Phil., 573, per Ostrand, J.; and Jocson vs. Jocson [1922], 46 Phil., 701, per Villamor, J.) Because of their peculiar applicability, we propose to make particular mention of four of the earlier cases of this court. In the case of Hernaez vs. Hernaez supra the subject of the action was the will executed by Dona Juana Espinosa. The annulment of the will was sought first upon the ground of the incapacity of the testatrix. She was over 80 years of age, so ill that three days extreme unction, and two days afterwards she died. Prior thereto she walked in a stooping attitude and gave contradictory orders, as a result of her senile debility. The chief Justice reached the conclusion that neither from the facts elicited by the interrogatories nor the documents presented can the conclusion be reached that the testatrix was deprived of her mental faculties. The will was held valid and efficacious. In the case of In the matter of the will of Butalid, supra, the will was contested for the reason that Dominga Butalid at the date of the execution of the document was not in the date of the execution of the document was not in the free use of her intellectual powers, she being over 90 years of age, lying in bed seriously ill, senseless and unable to utter a single word so that she did not know what she was doing when she executed the will while the document was claimed to have been executed under the influence and by the direction of one of the heirs designated in the will. Yet after an examination of the evidence in the will. Yet after an examination of the evidence in the will. The Chief Justice rendered judgment reversing the judgment appealed from and declaring the will presented for legalization to be valid and sufficient.

In the case of Bugnao vs. Ubag, supra the court gave credence to the testimony of the subscribing witnesses who swore positively that at the time of the execution of the will the testator was of sound mind and memory. Based on these and other facts, Mr. Justice Carson, speaking for court, laid down the following legal principles: Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary known as insanity or idiocy there are numberless degrees of mental capacity or incapacity and while on one hand it had been held that mere weakness of mind or partial imbecility from disease of body, or from age, will to render a person incapable of making a will a weak or feeble minded person may make a valid will provided he has understanding and memory sufficient to enable him to know what he is about and how or to whom he is disposing of his property (Lodge vs. Lodge, 2 Houst. [Del.] 418); that, To constitute a sound be unbroken or unimpaired, unshattered by disease or otherwise (Sloan vs. Maxwell, # N. J. Eq., 563); that it has not been understood that a testator must possess these qualities (of sound and disposing mind and memory) in the highest degree. . . .Few indeed would be the wills confirmed it this is correct. Pain, sickness, debility of body from age or infirmity, would according to its violence or duration in a greater or less degree, break in upon, weaken, or derange the mind, but the derangement must be such as deprives him of the rational faculties common to man (Den. vs. Vancleve, 5 N. J. L., 6 80); and that Sound mind does not mean a perfectly balanced mind. The question of soundness is one of degree (Boughton vs. Knight. L. R., 3 P. & D., 64; 42 L. P. P., 25); on the other hand, it has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age, from disease, or great bodily infirmities of suffering, or from all these combined, may render the testator in capable of making a valid will, providing such weakness really disqualifies for from knowing or appreciating the nature, effects, or consequences of the act she is engaged in (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302). In the case of Nagtas vs. Paquio, supra, the record shows that the testator for some fourteen or fifteen years prior to the time of his death suffered from a paralysis of the left side of his body, that a few years prior to his death his hearing became impaired and that he had lost the power of speech. However, he retained the use of his hand and could write fairly well. Through the medium of signs, he was able to indicate his wishes to his family. The will was attacked n the ground that the testator lacked mental capacity at the time of its execution. The will was nevertheless admitted to

probate, Mr. Justice Trent, speaking for the court, announcement the following pertinent legal doctrines: * * * There are many cases and authorities which we might cite to show that the courts have repeatedly held that mere weakness of mind and body, induced by age and disease do not render a person incapable of making a will. The law does not require that a person shall continue in the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will. If such were the legal standard few indeed would be the number of wills that could meet such exacting requirements. The authorities, both medical and legal are universal in the statement that the question of mental capacity is one of degree and that there are many graduations from the highest degree of mental soundness to the lowest conditions of diseased mentality which are denominated as insanity and idiocy. The right to dispose of property by testamentary disposition is as sacred as any other right which a person may exercise and this right should be nullified unless mental incapacity is established in a positive and conclusive manner. In discussing the question of testamentary capacity, it is stated in volume 28, page 70, of the American and English Encyclopedia of Law that Contrary to the very prevalent lay impression perfect soundness of mind is not essential to testamentary capacity. A testator may be afflicted with a variety of mental weakness, disorders or peculiarities and still be capable in law of executing a valid will. (See the numerous cases there cited in support of this statement.) The rule relating to testamentary capacity is stated in Buswel on Insanity, section 365 and quoted with approval in Campbell vs. Campbell (130 Ill. 466) as follows: To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly unbroken unimpaired or unshattered by disease or otherwise or that the testator should be in the full possession of his reasoning faculties. In note, 1 Jarnan on Wills, 38, the rule is thus stated: The question is not so much, what was the degree of memory possessed by the testator as had, he a disposing memory? Was he able to remember the property he was about to bequeth the manner of distributing it and the object of his bounty? In a word, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will. (See authorities there cited) In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The testator died at the age of nearly 102 years. In his early years he was an intelligent and well informed man. About seven years

prior to his death he suffered a paralytic stroke and from that time his mind and memory were much enfeebled. He became very dull of hearing and in consequence of the shrinking of his brain he was affected with senile cataract causing total blindness. He became filthy and obscene in his habits, although formerly he was observant of the proprieties of life. The court, in commenting upon the case, said: Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be total or extend to his immediate family to property. . . . x x x x x x x x x Dougal (the testator) had lived over one hundred years before he made the will and his physical and mental weakness and defective memory were in striking contrast with their strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful of recent events, especially of names and repeated questions in conversation; and sometimes, when aroused from sleep or slumber, would seem bewildered. It is not singular that some of those who had known him when he was remarkable for vigor and intelligence are of the opinion that his reason was so far gone that he was incapable of making a will, although they never heard him utter an irrational expression. In the above case the will was sustained. In the case at bar we might draw the same contract as was pictured by the court in the case just quoted. . . . The particular difference between all of the Philippine case which are cited and the case at bar are that in none of the Philippine cases was there any declaration of incomplicated and in none of them were the facts quite as complicated as they are here. A case in point where the will was contested, because the testator was not of sound and disposing mind and memory and because at the time of the making of the will he was acting under the undue influence of his brothers and where he had a guardian when he executed his will, is Ames Will ([1902] 40 Ore., 495). Mr. Justice Moore, delivering the opinion of the court, in part said: It is contended by contestants counsel that on the day said pretended will purports to have been executed, Lowell was declared incompetent by a court which had jurisdiction of the person and subject-matter and that the decree therein appointing a guardian of his person and estate raises the distable presumption that he did not possess sufficient testamentary capacity at the time to overcome which required evidence so strong as to leave no reasonable doubt as to his capacity to make a valid will, and the testimony introduced by the proponent being insufficient for that purpose the court

erred in admitting it to probate. The appointment of a guardian of a person alleged to be non compos mentis, by a court having jurisdiction must necessarily create a presumption of the mental infirmity of the ward; but such decree does not conclusively show that the testamentary capacity of the person under guardianship is entirely destroyed and the presumption thus created may be overcome by evidence proving that such person at the time he executed a will was in fact of sound and disposing mind and memory: Stone vs. Damon, 12 Mass., 487; Breed vs. Pratt, 18 Pick, 115: In re Slingers Will, 72 Wis., 22 (37 N. W. 236). The testimony shows that the testator retained a vivid recollection of the contents of the books he had read and studied when he was young but that he could not readily recall to his mind the ordinary incidents of his later life. The depth and intensity of mental impression always depend upon and are measured by the degree of attention given to the perception of truth, which demands reflection; and hence the inability of a person to recollect events and hence the inability is evidence of mental decay, because it manifest a want of power on concentration of the mind. The aged live in the past and the impression retained in their minds are those that were made in their younger days, because at that period of their lives they were able to exercise will power by giving attention. While the inability of a person of advanced years to remember recent events distinctly undoubtedly indicates a decay of the human faculties, it does not conclusively establish senile dementia, which is something more than a mere loss of mental power, resulting from old age and is not only a feeble condition of the mind but a derangement thereof. . . . The rule is settled in this state that if a testator at the time he executes his will understand the business in which he is engaged and has a knowledge of his property and how he wishes to dispose of it among those entitled to his bounty, he possess sufficient testamentary capacity, notwithstanding his old age, sickness debility of body, or extreme distress. x x x x x x x x x It is contented by contestants counsel that if Lowell at the time he executed the pretended will, was not wholly lacking in testamentary capacity, he was, in consequence of age ill health, debility of body and infirmity of will power, Andrew and Joseph having knowledge thereof took advantage of his physical and mental condition and unduly influenced him to device and bequeth his property in the manner indicated, attempting thereby to deprive the contestant of all interest therein except such as was given her by statute. . . . Assuming that he was easily persuaded and that his brothers and the persons employed by them to care for him took advantage of his enfeebled condition and prejudiced his mind against the contestant did such undue

influence render the will therefore executed void? . . . When a will has been properly executed, it is the duty of the courts to uphold it, if the testator possessed a sound and disposing mind and memory and was free from restraint and not acting under undue influence notwithstanding sympathy for persons legally entitled to the testators bounty and a sense of innate justice might suggest a different testamentary disposition. Believing, as we do, that the findings of the circuit court are supported by the weight of the testimony its decree is affirmed. Insofar as the law on testamentary capacity to make a will is concerned and carrying alone one step further the question suggested at the end of the presentation of the facts on the same subject a resolution of the case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet the legal test regarding testamentary capacity and have the proponents of the will carried successfully the burden of proof and shown him to be of sound mind on that date? II. UNDUE INFLUENCE A. Facts. The will was attacked on the further ground of undue influence exercised by the persons benefited in the will in collaboration with others. The trial judge found this allegation to have been established and made it one of the bases of his decision. it is now for us to say if the facts justify this finding. Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently became his guardian. There is every indication that of all his relatives Tomas Rodriguez reposed the most confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F. Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was Luz Lopez de Bueno who appears to have gathered the witnesses and physicians for the execution of the will. This faction of the Lopez family was also a favor through the orders of Doctor Domingo as to who could be admitted to see the patient. The trial judge entertained the opinion that there existed a preconceived plan on the part of the persons who surrounded Tomas Rodriguez to secure his signature to the testament. The trial judge may be correct in this supposition. It is hard to believe, however, that men of the standing of Judge Mina, Doctors Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would so demean themselves and so fully their characters and reputation as to participate in a scheme having for its purpose to delude and to betray an old man in his age, rather named was acting according to the best of his ability to assist in a legitimate act in a legitimate manner. Moreover, considering the attitude of Tomas Rodriguez toward Margarita Lopez and her

husband and his apparent enmity toward them, it seems fairly evident that even if the will had been made in previous years when Rodriguez was more nearly in his prime, he would have prepared somewhat a similar document. B. LAW. One of the grounds for disallowing a will is that it was procured by undue and improper pressure and influence on the art of the beneficiary or some other person for his benefit (Code of Civil Procedure, sec., 634[4]). Undue influence, as here mentioned in connection with the law of wills and as further mentioned in the Civil Code (art. 1265), may be defined as that which compelled the testator to do that which is against the will from fear the desire of peace or from other feeling which is unable to resist. The theory of undue influence is totally rejected as not proved. III. JUDGMENT To restate the combined issued of fact and law in this case pertaining to testamentary capacity: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet the legal test regarding testamentary capacity and have the proponents of the will carried successfully the burden of proof and shown him to be of sound mind on that date? Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in which the will was executed and to the testators mental condition. The other subscribing witness, also, a physician on the contrary testified to a fact which, if substantiated, would require the court to disallow the will. The attending physician and three other eminent members of the medical fraternity, who were present at the execution of the will, expressed opinions entirely favorable to the capacity of the testator. As against this we have the professional speculations of three other equally eminent members of the medical profession when the will was executed. The advantage on those facts is all with those who offer the will for probate. The will was short. It could easily be understood by a person in physical distress. It was reasonable, that is, it was reasonable if we take into account the evident prejustice of the testator against the husband of Margarita Lopez. With special reference of the definition of testamentary capacity, we may say this: On January 3, 1924, Tomas Rodriguez, in our opinion comprehended the nature of the transaction in which he was engaged. He had two conferences with his lawyer, Judge Mina, and knew what the will was to contain. The will was read to him by Mr. Legarda. He signed the will and its two copies in the proper places at the bottom and on the left margin. At that time the testator recollected the property to be disposed of and the persons who would naturally be supposed to have claims upon him While for some months prior to the making of the will he had not manage his property

he seem to have retained a distinct recollection of what it consisted and of his income. Occasionally his memory failed him with reference to the names of his relatives. Ordinarily, he knew who they were, he seemed to entertain a prediliction towards Vicente F. Lopez as would be natural since Lopez was nearest in which the instrument distributed the property naming the objects of his bounty. His conversations with Judge Mina disclosed as insistence on giving all of his property to the two persons whom he specified. On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been physically decrepit, may have been weak in intellect, may have suffered a loss of memory, may have had a guardian and may have a been extremely eccentric, but he still possessed the spark of reason and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to enforce that intention, which the law terms testamentary capacity. That in effect is the definite opinion which we reach after an exhaustive and exhausting study of a tedious record, after weighing the evidence for the oppositors, and after giving to the case the serious consideration which it deserves. The judgment of the trial court will be set aside and the will of Tomas Rodriguez will be admitted to probate without special pronouncement as to costs in this instance. Avancea, C. J., Johnson, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.

G.R. No. L-25966

November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES, special administrator, and LUZ LOPEZ DE BUENO, heir, appellee, vs. MARGARITA LOPEZ, opponent-appellant. Marcaida, Capili and Ocampo and Camus, Delgado and Recto for appellant. Araneta and Zaragoza for appellee.

STREET, J.: This appeal involves a controversy over one-half of the estate of Tomas Rodriguez, decedent. The appellant, Margarita Lopez, claims said half by the intestate succession as next of kin and nearest heir; while the appellee, Luz Lopez de Bueno,

claims the same by accredition and in the character of universal heir the will of the decedent. The trial court decided the point of controversy in favor of Luz Lopez de Bueno, and Margariat Lopez appealed. The facts necessary to an understanding of the case are these: On January 3, 1924, Tomas Rodriguez executed his last will and testament, in the second clause of which he declared: I institute as the only and universal heirs to all my property, my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno. Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judicially declared incapable of taking care of himself and had been placed under the care of his cousin Vicente F. Lopez, as guardian. On January 7, 1924, or only four days after the will above-mentioned was made, Vicente F. Lopez died; and the testator, Tomas Rodriguez, died on February 25, 1924, thereafter. At the time the will was made Vicente F. Lopez had not presented his final accounts as guardian, and no such accounts had been presented by him at the time of his death. Margariat Lopez was a cousin and nearest relative of the decedent. The will referred to, and after having been contested, has been admitted to probate by judicial determination (Torres and Lopez de Buenovs. Lopez, 48 Phil., 772). Our discussion of the legal problem presented should begin with article 753 of the Civil Code which in effect declares that, with certain exceptions in favor of near relatives, no testamentary provision shall be valid when made by a ward in favor of his guardian before the final accounts of the latter have been approved. This provision is of undoubted application to the situation before us; and the provision made in the will of Tomas Rodriguez in favor of Vicente F. Lopez was not any general incapacity on his part, but a special incapacity due to the accidental relation of guardian and ward existing between the parties. We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared, in effect, that accretion take place in a testamentary succession, first when the two or more persons are called to the same inheritance or the same portion thereof without special designation of shares; and secondly, when one of the persons so called dies before the testator or renounces the inheritance or is disqualifying to receive it. In the case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez de Bueno, to the same inheritance without special designation of shares. In addition to this, one of the persons named as heir has predeceased the testator, this person being also disqualified to receive the estate even if he had been alive at the time of the testator's death. This article (982) is therefore also of exact application to the case in hand; and its effect is to give to the survivor, Luz Lopez de Bueno, not only the undivided half which she would have received in conjunction with her father if he had been alive and qualified to take, but also the half which pertained to him. There was no error whatever, therefore, in the order of the trial court declaring Luz Lopez de Bueno entitled to the whole estate.

The argument in favor of the appellant supposes that there has supervened a partial intestacy with respect to the half of the estate which was intended for Vicente F. Lopez and that this half has descended to the appellant, Margarita Lopez, as next of kin and sole heir at law of the decedent. In this connection attention is directed to article 764 of the Civil Code wherein it is declared, among other things, that a will may be valid even though the person instituted as heir is disqualified to inherit. Our attention is next invited to article 912 wherein it is declared, among other things, that legal succession takes place if the heir dies before the testator and also when the heir instituted is disqualified to succeed. Upon these provisions an argument is planted conducting to the conclusion that the will of Tomas Rodriguez was valid, notwithstanding the fact that one of the individuals named as heirs in the will was disqualified to take, and that as a consequence Margarita Lopez s entitled to inherit the share of said disqualified heir. We are the opinion that this contention is untenable and that the appellee clearly has the better right. In playing the provisions of the Code it is the duty of the court to harmonize its provisions as far as possible, giving due effect to all; and in case of conflict between two provisions the more general is to be considered as being limited by the more specific. As between articles 912 and 983, it is obvious that the former is the more general of the two, dealing, as it does, with the general topic of intestate succession while the latter is more specific, defining the particular conditions under which accretion takes place. In case of conflict, therefore, the provisions of the former article must be considered limited by the latter. Indeed, in subsection 3 of article 912 the provision with respect to intestate succession is expressly subordinated to article 983 by the expression "and (if) there is no right of accretion." It is true that the same express qualification is not found in subsection 4 of article 912, yet it must be so understood, in view of the rule of interpretation above referred to, by which the more specific is held to control the general. Besides, this interpretation supplies the only possible means of harmonizing the two provisions. In addition to this, article 986 of the Civil Code affords independent proof that intestate succession to a vacant portion can only occur when accretion is impossible. The attorneys for the appellant direct attention to the fact that, under paragraph 4 of article 912, intestate succession occurs when the heir instituted is disqualified to succeed (incapaz de suceder), while, under the last provision in paragraph 2 of article 982, accretion occurs when one of the persons called to inherit under the will is disqualified to receive the inheritance (incapaz de recibirla). A distinction is then drawn between incapacity to succeed and incapacity to take, and it is contended that the disability of Vicente F. Lopez was such as to bring the case under article 912 rather than 982. We are of the opinion that the case cannot be made to turn upon so refined an interpretation of the language of the Code, and at any rate the disability to which Vicente F. Lopez was subject was not a general disability to succeed but an accidental incapacity to receive the legacy, a consideration which makes a case for accretion rather than for intestate succession. The opinions of the commentators, so far as they have expressed themselves on the subject, tend to the conclusion that the right of accretion with regard to portions of

an inheritance left vacant by the death or disqualification of one of the heirs or his renunciation of the inheritance is governed by article 912, without being limited, to the extent supposed in appellant's brief, by provisions of the Code relative to intestate succession (Manresa, Comentarios al Codigo Civil Espaol, 4th ed., vol. VII, pp. 310, 311; id., 34; 13 Mucius Scaevola, pp. 372, 373, 285-287; 16 Mucius Scaevola, 186). Says Escriche: "It is to be understood that one of the coheirs or colegatees fails if nonexistent at the time of the making of the will, or he renounces the inheritance or legacy, if he dies before the testator, if the condition be not fulfilled, or if he becomes otherwise incapacitated. . . . (Diccionario de Legislacion y Jurisprudencia, vol. I, p. 225.)lawphil.net In conclusion it may be worth observing that there has always existed both in the civil and in the common law a certain legal intendment, amounting to a mild presumption, against partial intestacy. In Roman law, as is well known, partial testacy systems a presumption against it, a presumption which has its basis in the supposed intention of the testator. The judgment appealed from will be affirmed, and it is so ordered, with costs against the appellant.