G.R. No.

82233 March 22, 1990

JOSE BARITUA and EDGAR BITANCOR, petitioners,
vs.
HONORABLE COURT OF APPEALS, NICOLAS NACARIO and VICTORIA RONDA
NACARIO, respondents.
Domingo Lucenario for petitioners.
Ernesto A. Atienza for private respondents.

The petitioners, however, reneged on their promise and instead negotiated and settled their
obligations with the long-estranged wife of their late son. The Nacario spouses prayed that
the defendants, petitioners herein, be ordered to indemnify them in the amount of
P25,000.00 for the death of their son Bienvenido, P10,000.00 for the damaged tricycle,
P25,000.00 for compensatory and exemplary damages, P5,000.00 for attorney's fees, and for
9
moral damages.
After trial, the court a quo dismissed the complaint, holding that the payment by the
defendants (herein petitioners) to the widow and her child, who are the preferred heirs and
successors-in-interest of the deceased Bienvenido to the exclusion of his parents, the
plaintiffs (herein private respondents), extinguished any claim against the defendants
10
(petitioners).

SARMIENTO, J.:
This petition for review on certiorari assails as erroneous and contrary to existing relevant
1
laws and applicable jurisprudence the decision of the Court of Appeals dated December 11,
1987 which reversed and set aside that of the Regional Trial Court, Branch XXXII, at Pili,
2
Camarines Sur. The challenged decision adjudged the petitioners liable to the private
respondents in the total amount of P20,505.00 and for costs.
The facts are as follows:
In the evening of November 7, 1979, the tricycle then being driven by Bienvenido Nacario
along the national highway at Barangay San Cayetano, in Baao, Camarines Sur, figured in an
accident with JB Bus No. 80 driven by petitioner Edgar Bitancor and owned and operated by
3
4
petitioner Jose Baritua. As a result of that accident Bienvenido and his passenger died and
5
6
the tricycle was damaged. No criminal case arising from the incident was ever instituted.
Subsequently, on March 27, 1980, as a consequence of the extra-judicial settlement of the
matter negotiated by the petitioners and the bus insurer Philippine First Insurance
Company, Incorporated (PFICI for brevity) Bienvenido Nacario's widow, Alicia Baracena
Vda. de Nacario, received P18,500.00. In consideration of the amount she received, Alicia
executed on March 27, 1980 a "Release of Claim" in favor of the petitioners and PFICI,
releasing and forever discharging them from all actions, claims, and demands arising from
the accident which resulted in her husband's death and the damage to the tricycle which the
deceased was then driving. Alicia likewise executed an affidavit of desistance in which she
formally manifested her lack of interest in instituting any case, either civil or criminal, against
7
the petitioners.
On September 2, 1981, or about one year and ten months from the date of the accident on
November 7, 1979, the private respondents, who are the parents of Bienvenido Nacario, filed
a complaint for damages against the petitioners with the then Court of First Instance of
8
Camarines Sur. In their complaint, the private respondents alleged that during the vigil for
their deceased son, the petitioners through their representatives promised them (the private
respondents) that as extra-judicial settlement, they shall be indemnified for the death of
their son, for the funeral expenses incurred by reason thereof, and for the damage for the
tricycle the purchase price of which they (the private respondents) only loaned to the victim.

The parents appealed to the Court of Appeals which reversed the judgment of the trial court.
The appellate court ruled that the release executed by Alicia Baracena Vda. de Nacario did
not discharge the liability of the petitioners because the case was instituted by the private
respondents in their own capacity and not as "heirs, representatives, successors, and
assigns" of Alicia; and Alicia could not have validly waived the damages being prayed for (by
the private respondents) since she was not the one who suffered these damages arising from
the death of their son. Furthermore, the appellate court said that the petitioners "failed to
rebut the testimony of the appellants (private respondents) that they were the ones who
bought the tricycle that was damaged in the incident. Appellants had the burden of proof of
11
such fact, and they did establish such fact in their testimony . . . Anent the funeral
expenses, "(T)he expenses for the funeral were likewise shouldered by the appellants (the
private respondents). This was never contradicted by the appellees (petitioners). . . .
Payment (for these) were made by the appellants, therefore, the reimbursement must
12
accrue in their favor.
Consequently, the respondent appellate court ordered the petitioners to pay the private
respondents P10,000.00 for the damage of the tricycle, P5,000.00 for "complete" funeral
services, P450.00 for cemetery lot, P55.00 fororacion adulto, and P5,000.00 for attorney's
13
fees. The petitioners moved for
14
15
a reconsideration of the appellate court's decision but their motion was denied. Hence,
this petition.
The issue here is whether or not the respondent appellate court erred in holding that the
petitioners are still liable to pay the private respondents the aggregate amount of P20,505.00
despite the agreement of extrajudicial settlement between the petitioners and the victim's
compulsory heirs.
The petition is meritorious.
Obligations are extinguished by various modes among them being by payment. Article 1231
of the Civil Code of the Philippines provides:
Art. 1231. Obligations are extinguished:

(1) By payment or performance;

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those

in Nos. 1 and 2. Neither do they exclude one another. (Emphasis ours.)

(2) By the loss of the thing due;

Article 985. In default of legitimate children and descendants of the
deceased, his parents and ascendants shall inherit from him, to the
exclusion of collateral relatives.

(3) By the condonation or remission of the debt;

(4) By the confusion or merger of the rights of creditor and debtor;
(5) By compensation;
(6) By novation.
(Emphasis ours.)
There is no denying that the petitioners had paid their obligation petition arising from the
accident that occurred on November 7, 1979. The only question now is whether or not Alicia,
the spouse and the one who received the petitioners' payment, is entitled to it.
Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to
extinguish an obligation should be made.
Art 1240. Payment shall be made to the person in whose favor the
obligation has been constituted, or his successor in interest, or any
person authorized to receive it.
Certainly there can be no question that Alicia and her son with the deceased are the
successors in interest referred to in law as the persons authorized to receive payment. The
Civil Code states:
Article 887. The following are compulsory heirs:
1. Legitimate children and descendants, with respect to their legitimate
parents and ascendants;
2. In default of the foregoing, legitimate parents and ascendants with
respect to their legitimate children and decendants;
3. The widow or widower;
4. Acknowledged natural children and natural children by legal fiction;

(Emphasis ours.)
It is patently clear that the parents of the deceased succeed only when the latter dies
without a legitimate descendant. On the other hand, the surviving spouse concurs with all
classes of heirs. As it has been established that Bienvenido was married to Alicia and that
they begot a child, the private respondents are not successors-in-interest of Bienvenido; they
are not compulsory heirs. The petitioners therefore acted correctly in settling their obligation
with Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is
so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal
ground for the disqualification of a surviving spouse as an heir of the deceased spouse.
Neither could the private respondents, as alleged creditors of Bienvenido, seek relief and
compensation from the petitioners. While it may be true that the private respondents loaned
to Bienvenido the purchase price of the damaged tricycle and shouldered the expenses for
his funeral, the said purchase price and expenses are but money claims against the estate of
16
their deceased son. These money claims are not the liabilities of the petitioners who, as we
have said, had been released by the agreement of the extra-judicial settlement they
concluded with Alicia Baracena Vda. de Nacario, the victim's widow and heir, as well as the
natural guardian of their child, her co-heir. As a matter of fact, she executed a "Release Of
Claim" in favor of the petitioners.
WHEREFORE, the petition is GRANTED; the decision of the Court of Appeals is REVERSED and
SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. Costs against
the private respondents.
SO ORDERED.
G.R. No. L-19281

June 30, 1965

IN THE MATTER OF THE INTESTATE ESTATE OF PEDRO SANTILLON, CLARO

SANTILLON, petitioner-appellant,
vs.
PERFECTA MIRANDA, BENITO U. MIRANDA and ROSARIO CORRALES, oppositors-appellees.
Clodualdo P. Surio and Claro Santillon (in his own behalf) for petitioner-appellant.
Patricio M. Patajo for oppositors-appellees.

5. Other illegitimate children referred to in Article 287.

BENGZON, C.J.:

This is an appeal from the order of the Court of First Instance of Pangasinan, specifying the
respective shares of the principal parties herein in the intestate estate of Pedro Santillon.

The First Issue: It is clear that the order of the lower court is final and, therefore,
appealable to this Court.

On November 21, 1953, Santillon died without testament in Tayug, Pangasinan, his
residence, leaving one son, Claro, and his wife, Perfecta Miranda. During his marriage, Pedro
acquired several parcels of land located in that province.

Under Rule 109, sec. 1, a person may appeal in special proceedings from an order of the
Court of First Instance where such order "determines ... the distributive share of the estate to
which such person is entitled."

About four years after his death, Claro Santillon filed a petition for letters of administration.
Opposition to said petition was entered by the widow Perfecta Miranda and the spouses
Benito U. Miranda and Rosario Corrales on the following grounds: (a) that the properties
enumerated in the petition were all conjugal, except three parcels which Perfecta Miranda
claimed to be her exclusive properties; (b) that Perfecta Miranda by virtue of two documents
had conveyed 3/4 of her undivided share in most of the properties enumerated in the
petition to said spouses Benito and Rosario; (c) that administration of the estate was not
necessary, there being a case for partition pending; and (d) that if administration was
necessary at all, the oppositor Perfecta Miranda and not the petitioner was better qualified
for the post. It appears that subsequently, oppositor Perfecta Miranda was appointed
administratrix of the estate.

The Second Issue: Petitioner rests his claim to 3/4 of his father's estate on Art. 892 of the
New Civil Code which provides that:

On March 22, 1961, the court appointed commissioners to draft within sixty days, a project
of partition and distribution of all the properties of the deceased Pedro Santillon.
On April 25, 1961, Claro filed a "Motion to Declare Share of Heirs" and to resolve the
conflicting claims of the parties with respect to their respective rights in the estate. Invoking
Art. 892 of the New Civil Code, he insisted that after deducting 1/2 from the conjugal
properties is the conjugal share of Perfecta, the remaining 1/2 must be divided as follows:
1/4 for her and 3/4 for him. Oppositor Perfecta, on the other hand, claimed that besides her
conjugal half, she was entitled under Art. 996 of the New Civil Code to another 1/2 of the
remaining half. In other words, Claro claimed 3/4 of Pedro's inheritance, while Perfecta
claimed 1/2.
After due notice and hearing, the court, on June 28, 1961, issued an order, the dispositive
portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS it is hereby ruled and ordered that
in the intestate succession of the deceased Pedro Santillon, the surviving spouse
Perfecta Miranda shall inherit ONE-HALF (1/2) share and the remaining ONE-HALF
(1/2) share for the only son, Atty. Claro Santillon. This is after deducting the share
of the widow as co-owner of the conjugal properties. ... .
From this order, petitioner Claro Santillon has appealed to this Court. Two questions of law
are involved. The first, raised in Perfecta's Motion to Dismiss Appeal, is whether the order of
the lower court is appealable. And the second, raised in appellant's lone assignment of error,
is: How shall the estate of a person who dies intestate be divided when the only survivors are
the spouse and one legitimate child?

If only the legitimate child or descendant of the deceased survives the widow or
widower shall be entitled to one-fourth of the hereditary estate. ... .
As she gets one-fourth, therefore, I get 3/4, says Claro. Perfecta, on the other hand, cites Art.
996 which provides:
If a widow or widower and legitimate children or descendants are left, the surviving
spouse has in the succession the same share as that of each of the children.
Replying to Perfecta's claim, Claro says the article is unjust and unequitable to the extent that
it grants the widow the same share as that of the children in intestate succession, whereas in
testate, she is given 1/4 and the only child 1/2.
Oppositor Perfecta Miranda, on the other hand, contends that Art. 996 should control,
regardless of its alleged inequity, being as it is, a provision on intestate succession involving a
surviving spouse and a legitimate child, inasmuch as in statutory construction, the plural
word "children" includes the singular "child."
Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas
Art. 996 comes under the chapter on Legal or Intestate Succession. Such being the case, it is
obvious that Claro cannot rely on Art. 892 to support his claim to 3/4 of his father's estate.
Art 892 merely fixes the legitime of the surviving spouse and Art. 888 thereof, the legitime of
children in testate succession. While it may indicate the intent of the law with respect to the
ideal shares that a child and a spouse should get when they concur with each other, it does
not fix the amount of shares that such child and spouse are entitled to when intestacy occurs.
Because if the latter happens, the pertinent provision on intestate succession shall apply, i.e.,
Art. 996.
Some commentators of our New Civil Code seem to support Claro's contention; at least, his
objection to fifty-fifty sharing. But others confirm the half and half idea of the Pangasinan
court.
This is, remember, intestate proceedings. In the New Civil Code's chapter on legal or
intestate succession, the only article applicable is Art. 996. Our colleague, Mr. Justice J.B.L.
Reyes, professor of Civil Law, is quoted as having expressed the opinion that under this

article, when the widow survives with only one legitimate child, they share the estate in
1
equal parts. Senator Tolentino in his commentaries writes as follows:
One child Surviving. If there is only one legitimate child surviving with the
spouse, since they share equally, one-half of the estate goes to the child and the
other half goes to the surviving spouse. Although the law refers to "children or
descendants," the rule in statutory construction that the plural can be understood
to include the singular is applicable in this case. (Tolentino, Civil Code of the
Philippines, Vol. III, p. 436.)
The theory of those holding otherwise seems to be premised on these propositions: (a) Art.
996 speaks of "Children," therefore it does not apply when there is only one "child";
consequently Art. 892 (and Art. 888) should be applied, thru a process of judicial construction
and analogy; (b) Art. 996 is unjust or unfair because, whereas intestate succession, the
widow is assigned one-fourth only (Art. 892), she would get 1/2 in intestate.
A. Children. It is a maxim of statutory construction that words in plural include the
2
singular. So Art. 996 could or should be read (and so applied) : "If the widow or widower
and a legitimate child are left, the surviving spouse has the same share as that of the child."
Indeed, if we refuse to apply the article to this case on the ground that "child" is not included
in "children," the consequences would be tremendous, because "children" will not include
"child" in the following articles:
ART. 887. The following are compulsory heirs: (1) legitimate children and
descendants ... .
ART. 888. The legitime of legitimate children and descendants consists of onehalf of the hereditary estate ... .
ART. 896. Illegitimate children who may survive ... are entitled to one-fourth of
the hereditary estate ... . (See also Art. 901).
In fact, those who say "children" in Art. 996 does not include "child" seem to be inconsistent
when they argue from the premise that "in testate succession the only legitimate
child gets one-half and the widow, one-fourth." The inconsistency is clear, because the only
legitimate child gets one-half under Art. 888, which speaks of "children," not "child." So if
"children" in Art. 888 includes "child," the same meaning should be given to Art. 996.
B. Unfairness of Art. 996. Such position, more clearly stated, is this: In testate succession,
where there is only one child of the marriage, the child gets one-half, and the widow or
widower one-fourth. But in intestate , if Art. 996 is applied now, the child gets one-half, and
the widow or widower one-half. Unfair or inequitable, they insist.
On this point, it is not correct to assume that in testate succession the widow or widower
"gets only one-fourth." She or he may get one-half if the testator so wishes. So, the law

virtually leaves it to each of the spouses to decide (by testament, whether his or her only
child shall get more than his or her survivor).
Our conclusion (equal shares) seems a logical inference from the circumstance that whereas
Article 834 of the Spanish Civil Code, from which Art. 996 was taken,
contained two paragraphs governing two contingencies, the first, where the widow or
widower survives with legitimate children (general rule), and the second, where the widow
or widower survives with only one child (exception), Art. 996 omitted to provide for the
second situation, thereby indicating the legislator's desire to promulgate just one general
rule applicable to both situations.
The resultant division may be unfair as some writers explain and this we are not called
upon to discuss but it is the clear mandate of the statute, which we are bound to enforce.
The appealed decision is affirmed. No costs in this instance.
G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an order of the Court of
First Instance of Manila dated April 30, 1964, approving the project of partition filed by the
executor in Civil Case No. 37089 therein.1wph1.t
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States."
By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward
A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis
and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three
legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had
three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that
after all taxes, obligations, and expenses of administration are paid for, his distributable
estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his
first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two
items have been satisfied, the remainder shall go to his seven surviving children by his first
and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1wph1.t
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A.
His will was admitted to probate in the Court of First Instance of Manila on September 15,
1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein
including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to
the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma
Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies,
or a total of P120,000.00, which it released from time to time according as the lower court
approved and allowed the various motions or petitions filed by the latter three requesting
partial advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and
filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein
it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her
of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of
P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of
the testator's Last Will and Testament divided the residuary estate into seven equal
portions for the benefit of the testator's seven legitimate children by his first and second
marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective
oppositions to the project of partition on the ground that they were deprived of their
legitimes as illegitimate children and, therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is
1
evidenced by the registry receipt submitted on April 27, 1964 by the executor.
After the parties filed their respective memoranda and other pertinent pleadings, the lower
court, on April 30, 1964, issued an order overruling the oppositions and approving the
executor's final account, report and administration and project of partition. Relying upon Art.
16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas
law, which did not provide for legitimes.
Their respective motions for reconsideration having been denied by the lower court on June
11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must
apply Texas law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi,
applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine
is usually pertinent where the decedent is a national of one country, and a domicile of
another. In the present case, it is not disputed that the decedent was both a national of
2
Texas and a domicile thereof at the time of his death. So that even assuming Texas has a
conflict of law rule providing that the domiciliary system (law of the domicile) should govern,
the same would not result in a reference back (renvoi) to Philippine law, but would still refer
to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae)
calling for the application of the law of the place where the properties are situated, renvoi
would arise, since the properties here involved are found in the Philippines. In the absence,
however, of proof as to the conflict of law rule of Texas, it should not be presumed different
3
from ours. Appellants' position is therefore not rested on the doctrine of renvoi. As stated,
they never invoked nor even mentioned it in their arguments. Rather, they argue that their
case falls under the circumstances mentioned in the third paragraph of Article 17 in relation
to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the
decedent, in intestate or testamentary successions, with regard to four items: (a) the order
of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions
of the will; and (d) the capacity to succeed. They provide that
ART. 16. Real property as well as personal property is subject to the law of the
country where it is situated.
However, intestate and testamentary successions, both with respect to the order
of succession and to the amount of successional rights and to the intrinsic validity
of testamentary provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may he the nature of the
property and regardless of the country wherein said property may be found.
ART. 1039. Capacity to succeed is governed by the law of the nation of the
decedent.
Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating
that
Prohibitive laws concerning persons, their acts or property, and those which have
for their object public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.
Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new
Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of
the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second
paragraph of Art. 16 a specific provision in itself which must be applied in testate and

intestate succession. As further indication of this legislative intent, Congress added a new
provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the
national law of the decedent.

DECISION
DEL CASTILLO, J.:

It is therefore evident that whatever public policy or good customs may be involved in our
System of legitimes, Congress has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional
rights, to the decedent's national law. Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two wills one to govern his
Texas estate and the other his Philippine estate arguing from this that he intended
Philippine law to govern his Philippine estate. Assuming that such was the decedent's
intention in executing a separate Philippine will, it would not alter the law, for as this Court
ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that
his properties shall be distributed in accordance with Philippine law and not with his national
law, is illegal and void, for his national law cannot be ignored in regard to those matters that
Article 10 now Article 16 of the Civil Code states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas,
U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the will and the amount of successional rights
are to be determined under Texas law, the Philippine law on legitimes cannot be applied to
the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against
appellants. So ordered.
ANTONIO B. BALTAZAR,

It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent
was not of sound and disposing mind at the time of the execution of said will. Otherwise, the state is
duty-bound to give full effect to the wishes of the testator to distribute his estate in the manner
[1]

provided in his will so long as it is legally tenable.

[2]

[3]

Before us is a Petition for Review on Certiorari of the June 15, 2006 Decision of the Court
[4]

of Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision of the
Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G-1186. The
assailed CA Decision granted the petition for probate of the notarial will of Paciencia Regala (Paciencia),
to wit:
WHEREFORE, premises considered, finding the appeal to be impressed
with merit, the decision in SP. PROC. NO. G-1186 dated 30 September 2003, is
hereby SET ASIDE and a new one entered GRANTING the petition for the probate
of the will of PACIENCIA REGALA.
[5]

SO ORDERED.

G.R. No. 174489

[6]

SEBASTIAN M. BALTAZAR,

Also assailed herein is the August 31, 2006 CA Resolution which denied the Motion for

ANTONIO L. MANGALINDAN,

Reconsideration thereto.

ROSIE M. MATEO,

Present:

NENITA A. PACHECO,
VIRGILIO REGALA, JR.,

CORONA, C.J., Chairperson,

and RAFAEL TITCO,

LEONARDO-DE CASTRO,
Petitioners,

RTC which disallowed the notarial will of Paciencia.

BERSAMIN,
DEL CASTILLO, and

- versus -

Petitioners call us to reverse the CAs assailed Decision and instead affirm the Decision of the

Factual Antecedents

VILLARAMA, JR., JJ.

Paciencia was a 78 year old spinster when she made her last will and testament entitled Tauli

LORENZO LAXA,

Promulgated:
Respondent.

April 11, 2012

x-------------------------------------------------------------------x

[7]

Nang Bilin o Testamento Miss Paciencia Regala (Will) in the Pampango dialect on September 13,
1981. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was read to
Paciencia twice. After which, Paciencia expressed in the presence of the instrumental witnesses that the

document is her last will and testament. She thereafter affixed her signature at the end of the said
[8]

[9]

document on page 3 and then on the left margin of pages 1, 2 and 4 thereof.

raised and cared for Lorenzo since his birth. Six days after the execution of the Will or on September 19,
1981, Paciencia left for the United States of America (USA). There, she resided with Lorenzo and his
family until her death on January 4, 1996.

The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia
(Francisco) and Faustino R. Mercado (Faustino). The three attested to the Wills due execution by
[10]

affixing their signatures below its attestation clause

[11]

thereof,

In the interim, the Will remained in the custody of Judge Limpin.

and on the left margin of pages 1, 2 and 4

in the presence of Paciencia and of one another and of Judge Limpin who acted as notary

More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a
[14]

public.

petition

Childless and without any brothers or sisters, Paciencia bequeathed all her properties to

with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the

issuance of Letters of Administration in his favor, docketed as Special Proceedings No. G-1186.

respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna Lorella Laxa
and Katherine Ross Laxa, thus:

There being no opposition to the petition after its due publication, the RTC issued an Order
[15]

on June 13, 2000

xxxx
Fourth - In consideration of their valuable services to me since then up
to the present by the spouses LORENZO LAXA and CORAZON F. LAXA, I hereby
BEQUEATH, CONVEY and GIVE all my properties enumerated in parcels 1 to 5
unto the spouses LORENZO R. LAXA and CORAZON F. LAXA and their children,
LUNA LORELLA LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa and
Corazon F. Laxa both of legal age, Filipinos, presently residing at Barrio Sta.
Monica, [Sasmuan], Pampanga and their children, LUNA LORELLA and KATHERINE
ROSS LAXA, who are still not of legal age and living with their parents who would
decide to bequeath since they are the children of the spouses;
xxxx
[Sixth] - Should other properties of mine may be discovered aside from
the properties mentioned in this last will and testament, I am also bequeathing
and giving the same to the spouses Lorenzo R. Laxa and Corazon F. Laxa and their
two children and I also command them to offer masses yearly for the repose of
my soul and that of D[]a Nicomeda Regala, Epifania Regala and their spouses and
with respect to the fishpond situated at San Antonio, I likewise command to fulfill
the wishes of D[]a Nicomeda Regala in accordance with her testament as stated
[12]
in my testament. x x x

allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra. Limpin

testified that she was one of the instrumental witnesses in the execution of the last will and testament of
[16]

Paciencia on September 13, 1981.

The Will was executed in her fathers (Judge Limpin) home office,
[17]

in her presence and of two other witnesses, Francisco and Faustino.

[18]

the Will and her signatures on all its four pages.

[19]

father appearing thereon.

Dra. Limpin positively identified

She likewise positively identified the signature of her

Questioned by the prosecutor regarding Judge Limpins present mental

fitness, Dra. Limpin testified that her father had a stroke in 1991 and had to undergo brain
[20]

surgery.

The judge can walk but can no longer talk and remember her name. Because of this, Dra.
[21]

Limpin stated that her father can no longer testify in court.

The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an
[22]

opposition

to Lorenzos petition. Antonio averred that the properties subject of Paciencias Will

belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had no right to
[23]

bequeath them to Lorenzo.

Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M.
The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencias
nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated Paciencia as
[13]

his own mother.

Paciencia lived with Lorenzos family in Sasmuan, Pampanga and it was she who

Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo (Rosie) and
[24]

Antonio L. Mangalindan filed a Supplemental Opposition

contending that Paciencias Will was null and

void because ownership of the properties had not been transferred and/or titled to Paciencia before her

[25]

death pursuant to Article 1049, paragraph 3 of the Civil Code.

Petitioners also opposed the issuance

For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980, he

of Letters of Administration in Lorenzos favor arguing that Lorenzo was disqualified to be appointed as

lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia went to the USA

[26]

such, he being a citizen and resident of the USA.

Petitioners prayed that Letters of Administration be

[27]

instead issued in favor of Antonio.

and lived with him and his family until her death in January 1996; the relationship between him and
Paciencia was like that of a mother and child since Paciencia took care of him since birth and took him in
as an adopted son; Paciencia was a spinster without children, and without brothers and sisters; at the

[28]

Later still on September 26, 2000, petitioners filed an Amended Opposition

asking the RTC

time of Paciencias death, she did not suffer from any mental disorder and was of sound mind, was not

to deny the probate of Paciencias Will on the following grounds: the Will was not executed and attested

blind, deaf or mute; the Will was in the custody of Judge Limpin and was only given to him after

to in accordance with the requirements of the law; that Paciencia was mentally incapable to make a Will

Paciencias death through Faustino; and he was already residing in the USA when the Will was

at the time of its execution; that she was forced to execute the Will under duress or influence of fear or

executed.

threats; that the execution of the Will had been procured by undue and improper pressure and

the Will itself and stated that he was familiar with Paciencias signature because he accompanied her in

influence by Lorenzo or by some other persons for his benefit; that the signature of Paciencia on the Will

her transactions.

was forged; that assuming the signature to be genuine, it was obtained through fraud or trickery; and,

coercion or trickery upon Paciencia to execute the Will as he was not in the Philippines when the same

that Paciencia did not intend the document to be her Will. Simultaneously, petitioners filed an

was executed.

[29]

Opposition and Recommendation

reiterating their opposition to the appointment of Lorenzo as

[33]

Lorenzo positively identified the signature of Paciencia in three different documents and in

[34]

[35]

Further, Lorenzo belied and denied having used force, intimidation, violence,

On cross-examination, Lorenzo clarified that Paciencia informed him about the Will
[36]

shortly after her arrival in the USA but that he saw a copy of the Will only after her death.

administrator of the properties and requesting for the appointment of Antonio in his stead.
As to Francisco, he could no longer be presented in court as he already died on May 21, 2000.
[30]

On January 29, 2001, the RTC issued an Order

denying the requests of both Lorenzo and

Antonio to be appointed administrator since the former is a citizen and resident of the USA while the
latters claim as a co-owner of the properties subject of the Will has not yet been established.

[37]

For petitioners, Rosie testified that her mother and Paciencia were first cousins.

She

claimed to have helped in the household chores in the house of Paciencia thereby allowing her to stay
therein from morning until evening and that during the period of her service in the said household,

Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin
was recalled for cross-examination by the petitioners. She testified as to the age of her father at the

[38]

Lorenzos wife and his children were staying in the same house.

She served in the said household

[39]

from 1980 until Paciencias departure for the USA on September 19, 1981.

time the latter notarized the Will of Paciencia; the living arrangements of Paciencia at the time of the
execution of the Will; and the lack of photographs when the event took place.

[31]

On September 13, 1981, Rosie claimed that she saw Faustino bring something for Paciencia
[40]

to sign at the latters house.

Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness

Rosie admitted, though, that she did not see what that something was
[41]

as same was placed inside an envelope.

However, she remembered Paciencia instructing Faustino to

[42]

stand. Monico, son of Faustino, testified on his fathers condition. According to him his father can no

first look for money before she signs them.

longer talk and express himself due to brain damage. A medical certificate was presented to the court to

went to the house of Antonios mother and brought with her the said envelope.

support this allegation.

[32]

A few days after or on September 16, 1981, Paciencia

[43]

[44]

however, the envelope was no longer with Paciencia.

Upon going home,

Rosie further testified that Paciencia was

referred to as magulyan or forgetful because she would sometimes leave her wallet in the kitchen

[45]

then start looking for it moments later.

On cross examination, it was established that Rosie was

The trial court gave considerable weight to the testimony of Rosie and concluded that at the

neither a doctor nor a psychiatrist, that her conclusion that Paciencia was magulyan was based on her

time Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of mind to

[46]

personal assessment,

[47]

[58]

and that it was Antonio who requested her to testify in court.

[48]

In his direct examination, Antonio stated that Paciencia was his aunt.

have testamentary capacity.

He identified the Will

Ruling of the Court of Appeals

and testified that he had seen the said document before because Paciencia brought the same to his
[49]

mothers house and showed it to him along with another document on September 16, 1981.

Antonio

On appeal, the CA reversed the RTC Decision and granted the probate of the Will of

[50]

According to

Paciencia. The appellate court did not agree with the RTCs conclusion that Paciencia was of unsound

[51]

and it was he

mind when she executed the Will. It ratiocinated that the state of being magulyan does not make a

alleged that when the documents were shown to him, the same were still unsigned.

him, Paciencia thought that the documents pertained to a lease of one of her rice lands,

[59]

who explained that the documents were actually a special power of attorney to lease and sell her

person mentally unsound so *as+ to render *Paciencia+ unfit for executing a Will.

fishpond and other properties upon her departure for the USA, and a Will which would transfer her

oppositors in the probate proceedings were not able to overcome the presumption that every person is

[52]

properties to Lorenzo and his family upon her death.

Upon hearing this, Paciencia allegedly uttered

of sound mind. Further, no concrete circumstances or events were given to prove the allegation that
[60]

the following words: Why will I never [return], why will I sell all my properties? Who is Lorenzo? Is he

Paciencia was tricked or forced into signing the Will.

the only [son] of God? I have other relatives [who should] benefit from my properties. Why should I die

Petitioners moved for reconsideration

[53]

already?

Thereafter, Antonio advised Paciencia not to sign the documents if she does not want to, to

Moreover, the

[61]

[62]

Resolution

but the motion was denied by the CA in its

dated August 31, 2006.

which the latter purportedly replied, I know nothing about those, throw them away or it is up to you.
[54]

The more I will not sign them.

After which, Paciencia left the documents with Antonio. Antonio kept

Hence, this petition.

the unsigned documents

[55]

and eventually turned them over to Faustino on September 18, 1981.

Ruling of the Regional Trial Court

Issues

Petitioners come before this Court by way of Petition for Review on Certiorari ascribing upon
the CA the following errors:
[56]

On September 30, 2003, the RTC rendered its Decision

denying the petition thus:

WHEREFORE, this court hereby (a) denies the petition dated April 24,
2000; and (b) disallows the notarized will dated September 13, 1981 of Paciencia
Regala.
[57]

SO ORDERED.

I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED THE
PROBATE OF PACIENCIAS WILL DESPITE RESPONDENTS UTTER FAILURE TO
COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF COURT;
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING
CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD;
III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT

PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND AT
[63]
THE TIME THE WILL WAS ALLEGEDLY EXECUTED

subscribed by three or more credible witnesses in the presence of the testator and
of one another.

The pivotal issue is whether the authenticity and due execution of the notarial Will was sufficiently
established to warrant its allowance for probate.

The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one
another.

Our Ruling

We deny the petition.

If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required to retain a
copy of the will, or file another with the Office of the Clerk of Court.

Faithful compliance with the

formalities
laid down by law is apparent from the
face of the Will.

Here, a careful examination of the face of the Will shows faithful compliance with the

Courts are tasked to determine nothing more than the extrinsic validity of a
[64]

Will in probate proceedings.

This is expressly provided for in Rule 75, Section 1 of the Rules of Court,

formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental witnesses and
the notary public, are all present and evident on the Will. Further, the attestation clause explicitly states

which states:

the critical requirement that the testatrix and her instrumental witnesses signed the Will in the presence
Rule 75
PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY.

of one another and that the witnesses attested and subscribed to the Will in the presence of the testator
and of one another. In fact, even the petitioners acceded that the signature of Paciencia in the Will may

Section 1. Allowance necessary. Conclusive as to execution.

No will shall pass either real or personal estate unless it is proved and
allowed in the proper court. Subject to the right of appeal, such
allowance of the will shall be conclusive as to its due execution.

be authentic although they question her state of mind when she signed the same as well as the
voluntary nature of said act.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of
[65]

sound mind, freely executed the will in accordance with the formalities prescribed by law.

These

The burden to prove that Paciencia

was of unsound mind at the time of
the execution of the will lies on the
shoulders of the petitioners.

formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:
Petitioners, through their witness Rosie, claim that Paciencia was magulyan or forgetful so
Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and

much so that it effectively stripped her of testamentary capacity. They likewise claimed in their Motion

[66]

for Reconsideration

filed with the CA that Paciencia was not only magulyan but was actually
[67]

suffering from paranoia.

Here, there was no showing that Paciencia was publicly known to be insane one month or
less before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of unsound
mind lies upon the shoulders of petitioners. However and as earlier mentioned, no substantial evidence

We are not convinced.

was presented by them to prove the same, thereby warranting the CAs finding that petitioners failed to
discharge such burden.

We agree with the position of the CA that the state of being forgetful does not necessarily
[68]

make a person mentally unsound so as to render him unfit to execute a Will.

Forgetfulness is not

equivalent to being of unsound mind. Besides, Article 799 of the New Civil Code states:

Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be
disposed of, the proper objects of her bounty and the character of the testamentary act. As aptly
pointed out by the CA:

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.

A scrutiny of the Will discloses that [Paciencia] was aware of the nature
of the document she executed. She specially requested that the customs of her
faith be observed upon her death. She was well aware of how she acquired the
properties from her parents and the properties she is bequeathing to LORENZO, to
his wife CORAZON and to his two (2) children. A third child was born after the
[70]
execution of the will and was not included therein as devisee.

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.

In this case, apart from the testimony of Rosie pertaining to Paciencias forgetfulness, there is
no substantial evidence, medical or otherwise, that would show that Paciencia was of unsound mind at
the time of the execution of the Will. On the other hand, we find more worthy of credence Dra. Limpins

Bare allegations of duress or influence

of fear or threats, undue and improper
influence and pressure, fraud and
trickery cannot be used as basis to
deny the probate of a will.

testimony as to the soundness of mind of Paciencia when the latter went to Judge Limpins house and
voluntarily executed the Will. The testimony of subscribing witnesses to a Will concerning the testators
[69]

mental condition is entitled to great weight where they are truthful and intelligent.

importantly, a testator is presumed to be of sound mind at the time of the execution of the Will and the
burden to prove otherwise lies on the oppositor. Article 800 of the New Civil Code states:

An essential element of the validity of the Will is the willingness of the testator or testatrix to

More

execute the document that will distribute his/her earthly possessions upon his/her death. Petitioners
claim that Paciencia was forced to execute the Will under duress or influence of fear or threats; that the
execution of the Will had been procured by undue and improper pressure and influence by Lorenzo or

Art. 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.

by some other persons for his benefit; and that assuming Paciencias signature to be genuine, it was

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.

and Antonio on September 16, 1981 wherein the former purportedly repudiated the Will and left it

obtained through fraud or trickery. These are grounded on the alleged conversation between Paciencia

unsigned.

We are not persuaded.

We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as
her own son and that love even extended to Lorenzos wife and children. This kind of relationship is not
unusual. It is in fact not unheard of in our culture for old maids or spinsters to care for and raise their
nephews and nieces and treat them as their own children. Such is a prevalent and accepted cultural
practice that has resulted in many family discords between those favored by the testamentary
disposition of a testator and those who stand to benefit in case of intestacy.

In this case, evidence shows the acknowledged fact that Paciencias relationship with Lorenzo
and his family is different from her relationship with petitioners. The very fact that she cared for and
raised Lorenzo and lived with him both here and abroad, even if the latter was already married and

the case of wills executed under the Civil Code of the Philippines, if present in the
Philippines and not insane, must be produced and examined, and the death,
absence, or insanity of any of them must be satisfactorily shown to the court. If all
or some of such witnesses are present in the Philippines but outside the province
where the will has been filed, their deposition must be taken. If any or all of them
testify against the due execution of the will, or do not remember having attested
to it, or are otherwise of doubtful credibility, the will may nevertheless, be allowed
if the court is satisfied from the testimony of other witnesses and from all the
evidence presented that the will was executed and attested in the manner
required by law.
If a holographic will is contested, the same shall be allowed if at least
three (3) witnesses who know the handwriting of the testator explicitly declare
that the will and the signature are in the handwriting of the testator; in the
absence of any competent witnesses, and if the court deem it necessary, expert
testimony may be resorted to. (Emphasis supplied.)

already has children, highlights the special bond between them. This unquestioned relationship
between Paciencia and the devisees tends to support the authenticity of the said document as against
petitioners allegations of duress, influence of fear or threats, undue and improper influence, pressure,

They insist that all subscribing witnesses and the notary public should have been presented in
court since all but one witness, Francisco, are still living.

fraud, and trickery which, aside from being factual in nature, are not supported by concrete, substantial
and credible evidence on record. It is worth stressing that bare arguments, no matter how forceful, if

We cannot agree with petitioners.

not based on concrete and substantial evidence cannot suffice to move the Court to uphold said
[71]

Furthermore, a purported will is not *to be+ denied legalization on dubious

We note that the inability of Faustino and Judge Limpin to appear and testify before the court

grounds. Otherwise, the very institution of testamentary succession will be shaken to its foundation, for

was satisfactorily explained during the probate proceedings. As testified to by his son, Faustino had a

even if a will has been duly executed in fact, whether x x x it will be probated would have to depend

heart attack, was already bedridden and could no longer talk and express himself due to brain

allegations.

[72]

largely on the attitude of those interested in *the estate of the deceased+.

damage. To prove this, said witness presented the corresponding medical certificate. For her part, Dra.
Limpin testified that her father, Judge Limpin, suffered a stroke in 1991 and had to undergo brain

Court should be convinced by the

evidence presented before it that the
Will was duly executed.

surgery. At that time, Judge Limpin could no longer talk and could not even remember his daughters
name so that Dra. Limpin stated that given such condition, her father could no longer testify. It is well to
note that at that point, despite ample opportunity, petitioners neither interposed any objections to the

Petitioners dispute the authenticity of Paciencias Will on the ground that Section 11 of Rule
76 of the Rules of Court was not complied with. It provides:

testimonies of said witnesses nor challenged the same on cross examination. We thus hold that for all
intents and purposes, Lorenzo was able to satisfactorily account for the incapacity and failure of the said
subscribing witness and of the notary public to testify in court. Because of this the probate of Paciencias

RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
Section 11. Subscribing witnesses produced or accounted for where will
contested. If the will is contested, all the subscribing witnesses, and the notary in

Will may be allowed on the basis of Dra. Limpins testimony proving her sanity and the due execution of
the Will, as well as on the proof of her handwriting. It is an established rule that *a+ testament may not
be disallowed just because the attesting witnesses declare against its due execution; neither does it have

to be necessarily allowed just because all the attesting witnesses declare in favor of its legalization; what

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the
brothers of the deceased, opposed it. The court, however, approved it.

is decisive is that the court is convinced by evidence before it, not necessarily from the attesting
witnesses, although they must testify, that the will was or was not duly executed in the manner required
[73]

by law.

Moreover, it bears stressing that *i+rrespective x x x of the posture of any of the parties as
regards the authenticity and due execution of the will x x x in question, it is the mandate of the law that it
[74]

is the evidence before the court and/or [evidence that] ought to be before it that is controlling.

The

very existence of [the Will] is in itself prima facie proof that the supposed [testatrix] has willed that [her]
estate be distributed in the manner therein provided, and it is incumbent upon the state that, if legally
tenable, such desire be given full effect independent of the attitude of the parties affected
[75]

thereby.

This, coupled with Lorenzos established relationship with Paciencia, the evidence and the

testimonies of disinterested witnesses, as opposed to the total lack of evidence presented by petitioners
apart from their self-serving testimonies, constrain us to tilt the balance in favor of the authenticity of the
Will and its allowance for probate.

WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the Resolution
dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are AFFIRMED.
SO ORDERED.

G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.

ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.

The errors which the oppositor-appellant assigns are:

(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance;
(3) the denial of the motion for reconsideration of the order approving the partition; (4) the
approval of the purchase made by the Pietro Lana of the deceased's business and the deed of
transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this
cause, and the failure not to postpone the approval of the scheme of partition and the
delivery of the deceased's business to Pietro Lanza until the receipt of the depositions
requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into effect
the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his
Turkish nationality, for which reason they are void as being in violation or article 10 of the
Civil Code which, among other things, provides the following:
Nevertheless, legal and testamentary successions, in respect to the order of
succession as well as to the amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the national law of the person
whose succession is in question, whatever may be the nature of the property or the
country in which it may be situated.
But the fact is that the oppositor did not prove that said testimentary dispositions are not in
accordance with the Turkish laws, inasmuch as he did not present any evidence showing
what the Turkish laws are on the matter, and in the absence of evidence on such laws, they
are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of
Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself,
acknowledges it when he desires to be given an opportunity to present evidence on this
point; so much so that he assigns as an error of the court in not having deferred the approval
of the scheme of partition until the receipt of certain testimony requested regarding the
Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove such laws does not constitute
an error. It is discretionary with the trial court, and, taking into consideration that the
oppositor was granted ample opportunity to introduce competent evidence, we find no
abuse of discretion on the part of the court in this particular. There is, therefore, no evidence
in the record that the national law of the testator Joseph G. Brimo was violated in the
testamentary dispositions in question which, not being contrary to our laws in force, must be
complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.

In regard to the first assignment of error which deals with the exclusion of the herein
appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it
must be taken into consideration that such exclusion is based on the last part of the second
clause of the will, which says:
Second. I like desire to state that although by law, I am a Turkish citizen, this
citizenship having been conferred upon me by conquest and not by free choice, nor
by nationality and, on the other hand, having resided for a considerable length of
time in the Philippine Islands where I succeeded in acquiring all of the property that
I now possess, it is my wish that the distribution of my property and everything in
connection with this, my will, be made and disposed of in accordance with the laws
in force in the Philippine islands, requesting all of my relatives to respect this wish,
otherwise, I annul and cancel beforehand whatever disposition found in this will
favorable to the person or persons who fail to comply with this request.
The institution of legatees in this will is conditional, and the condition is that the instituted
legatees must respect the testator's will to distribute his property, not in accordance with the
laws of his nationality, but in accordance with the laws of the Philippines.

Therefore, the orders appealed from are modified and it is directed that the distribution of
this estate be made in such a manner as to include the herein appellant Andre Brimo as one
of the legatees, and the scheme of partition submitted by the judicial administrator is
approved in all other respects, without any pronouncement as to costs.
So ordered.
G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.

If this condition as it is expressed were legal and valid, any legatee who fails to comply with
it, as the herein oppositor who, by his attitude in these proceedings has not respected the
will of the testator, as expressed, is prevented from receiving his legacy.

ROMUALDEZ, J.:

The fact is, however, that the said condition is void, being contrary to law, for article 792 of
the civil Code provides the following:

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the
brothers of the deceased, opposed it. The court, however, approved it.

Impossible conditions and those contrary to law or good morals shall be considered
as not imposed and shall not prejudice the heir or legatee in any manner
whatsoever, even should the testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national law
when, according to article 10 of the civil Code above quoted, such national law of the
testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten,
and the institution of legatees in said will is unconditional and consequently valid and
effective even as to the herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern
it, and to the condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly
valid and effective it not appearing that said clauses are contrary to the testator's national
law.

The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.

The errors which the oppositor-appellant assigns are:

(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance;
(3) the denial of the motion for reconsideration of the order approving the partition; (4) the
approval of the purchase made by the Pietro Lana of the deceased's business and the deed of
transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this
cause, and the failure not to postpone the approval of the scheme of partition and the
delivery of the deceased's business to Pietro Lanza until the receipt of the depositions
requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into effect
the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his
Turkish nationality, for which reason they are void as being in violation or article 10 of the
Civil Code which, among other things, provides the following:
Nevertheless, legal and testamentary successions, in respect to the order of
succession as well as to the amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the national law of the person
whose succession is in question, whatever may be the nature of the property or the
country in which it may be situated.

But the fact is that the oppositor did not prove that said testimentary dispositions are not in
accordance with the Turkish laws, inasmuch as he did not present any evidence showing
what the Turkish laws are on the matter, and in the absence of evidence on such laws, they
are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of
Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself,
acknowledges it when he desires to be given an opportunity to present evidence on this
point; so much so that he assigns as an error of the court in not having deferred the approval
of the scheme of partition until the receipt of certain testimony requested regarding the
Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove such laws does not constitute
an error. It is discretionary with the trial court, and, taking into consideration that the
oppositor was granted ample opportunity to introduce competent evidence, we find no
abuse of discretion on the part of the court in this particular. There is, therefore, no evidence
in the record that the national law of the testator Joseph G. Brimo was violated in the
testamentary dispositions in question which, not being contrary to our laws in force, must be
complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein
appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it
must be taken into consideration that such exclusion is based on the last part of the second
clause of the will, which says:
Second. I like desire to state that although by law, I am a Turkish citizen, this
citizenship having been conferred upon me by conquest and not by free choice, nor
by nationality and, on the other hand, having resided for a considerable length of
time in the Philippine Islands where I succeeded in acquiring all of the property that
I now possess, it is my wish that the distribution of my property and everything in
connection with this, my will, be made and disposed of in accordance with the laws
in force in the Philippine islands, requesting all of my relatives to respect this wish,
otherwise, I annul and cancel beforehand whatever disposition found in this will
favorable to the person or persons who fail to comply with this request.
The institution of legatees in this will is conditional, and the condition is that the instituted
legatees must respect the testator's will to distribute his property, not in accordance with the
laws of his nationality, but in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply with
it, as the herein oppositor who, by his attitude in these proceedings has not respected the
will of the testator, as expressed, is prevented from receiving his legacy.

The fact is, however, that the said condition is void, being contrary to law, for article 792 of
the civil Code provides the following:
Impossible conditions and those contrary to law or good morals shall be considered
as not imposed and shall not prejudice the heir or legatee in any manner
whatsoever, even should the testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national law
when, according to article 10 of the civil Code above quoted, such national law of the
testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten,
and the institution of legatees in said will is unconditional and consequently valid and
effective even as to the herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern
it, and to the condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly
valid and effective it not appearing that said clauses are contrary to the testator's national
law.
Therefore, the orders appealed from are modified and it is directed that the distribution of
this estate be made in such a manner as to include the herein appellant Andre Brimo as one
of the legatees, and the scheme of partition submitted by the judicial administrator is
approved in all other respects, without any pronouncement as to costs.
So ordered.
G.R. No. L-10907

June 29, 1957

AUREA MATIAS, petitioner,

vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.
J. Gonzales Orense for petitioner.
Venancio H. Aquino for respondents.
CONCEPCION, J.:
Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L.
Gonzales, as Judge of the Court of First Instance of Cavite, in connection with Special
Proceedings No. 5213 of said court, entitled "Testate Estate of the Deceased Gabina Raquel."

On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the
probate of a document purporting to be the last will and testament of her aunt, Gabina
Raquel, who died single on May 8, 1952, at the age of 92 years. The heir to the entire estate
of the deceased except the properties bequeathed to her other niece and nephews,
namely, Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and Rafael Matias
is, pursuant to said instrument, Aurea Matias, likewise, appointed therein as executrix
thereof, without bond. Basilia Salud, a first cousin of the deceased, opposed the probate of
her alleged will, and, after appropriate proceedings, the court, presided over by respondent
Judge, issued an order, dated February 8, 1956, sustaining said opposition and denying the
petition for probate. Subsequently, Aurea Matias brought the matter on appeal to this Court
(G.R. No. L-10751), where it is now pending decision.
Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio
Rodriguez, as special administrator of the estate of the deceased, and the appointment, in
his stead of Ramon Plata. The motion was set for hearing on February 23, 1956, on which
date the court postponed the hearing to February 27, 1956. Although notified of this order,
Rodriguez did not appear on the date last mentioned. Instead, he filed an urgent motion
praying for additional time within which to answer the charges preferred against him by
Basilia Salud and for another postponement of said hearing. This motion was not granted,
and Basilia Salud introduced evidence in support of said charges, whereupon respondent
Judge by an order, dated February 27, 1956, found Rodriguez guilty of abuse of authority and
gross negligence, and, accordingly, relieved him as special administrator of the estate of the
deceased and appointed Basilia Salud as special administratrix thereof, to "be assisted and
advised by her niece, Miss Victorina Salud," who "shall always act as aide, interpreter and
adviser of Basilia Salud." Said order, likewise, provided that "Basilia Salud shall be helped by
Mr. Ramon Plata . . . who is hereby appointed as co-administrator."
On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and
that she be appointed special co-administratrix, jointly with Horacio Rodriguez, upon the
ground that Basilia Salud is over eighty (80) years of age, totally blind and physically
incapacitated to perform the duties of said office, and that said movant is the universal
heiress of the deceased and the person appointed by the latter as executrix of her alleged
will. This motion was denied in an order dated March 10, 1956, which maintained "the
appointment of the three above named persons" Basilia Salud, Ramon Plata and Victorina
Salud "for the management of the estate of the late Gabina Raquel pending final decision
on the probate of the alleged will of said decedent." However, on March 17, 1956, Basilia
Salud tendered her resignation as special administratrix by reason of physical disability, due
to old age, and recommended the appointment, in her place, of Victorina Salud. Before any
action could be taken thereon, or on March 21, 1956, Aurea Matias sought a reconsideration
of said order of March 10, 1956. Moreover, on March 24, 1956, she expressed her conformity
to said resignation, but objected to the appointment, in lieu of Basilia Salud, of Victorina
Salud, on account of her antagonism to said Aurea Matias she (Victorina Salud) having
been the principal and most interested witness for the opposition to the probate of the
alleged will of the deceased and proposed that the administration of her estate be
entrusted to the Philippine National Bank, the Monte de Piedad, the Bank of the Philippine
Islands, or any other similar institution authorized by law therefor, should the court be
reluctant to appoint the movant as special administratrix of said estate. This motion for
reconsideration was denied on March 26, 1956.

Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud
requested authority to collect the rents due, or which may be due, to the estate of the
deceased and to collect all the produce of her lands, which was granted on June 23, 1956. On
June 27, 1956, said respondents filed another motion praying for permission to sell the palay
of the deceased then deposited in different rice mills in the province of Cavite, which
respondent judge granted on June 10, 1956. Later on, or on July 10, 1956, petitioner
instituted the present action against Judge Gonzales, and Victorina Salud and Ramon Plata,
for the purpose of annulling the above mentioned orders of respondent Judge, upon the
ground that the same had been issued with grave abuse of discretion amounting to lack or
excess of jurisdiction.
In support of this pretense, it is argued that petitioner should have preference in the choice
of special administratrix of the estate of the decedent, she (petitioner) being the universal
heiress to said estate and, the executrix appointed in the alleged will of the deceased, that
until its final disallowance which has not, as yet, taken place she has a special interest in
said estate, which must be protected by giving representation thereto in the management of
said estate; that, apart from denying her any such representation, the management was
given to persons partial to her main opponent, namely, Basilia Salud, inasmuch as Victorina
Salud is allied to her and Ramon Plata is a very close friend of one of her (Basilia Salud's)
attorneys; that Basilia Salud was made special administratrix despite her obvious unfitness
for said office, she being over eighty (80) years of age and blind; that said disability is borne
out by the fact that on March 17, 1956, Basilia Salud resigned as special administratrix upon
such ground; that the Rules of Court do not permit the appointment of more than one
special administrator; that Horacio Rodriguez was removed without giving petitioner a
chance to be heard in connection therewith; and that Ramon Plata and Victorina Salud were
authorized to collect the rents due to the deceased and the produce of her lands, as well to
sell her palay, without previous notice to the petitioner herein.
Upon the other hand, respondents maintain that respondent Judge acted with the scope of
his jurisdiction and without any abuse of discretion; that petitioner can not validly claim any
special interest in the estate of the deceased, because the probate of the alleged will and
testament of the latter upon which petitioner relies has been denied; that Horacio
Rodriguez was duly notified of the proceedings for his removal; and that Victorina Salud and
Ramon Plata have not done anything that would warrant their removal.
Upon a review of the record, we find ourselves unable to sanction fully the acts of
respondent Judge, for the following reasons:
1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated
February 17, 1956, the record shows that petitioner herein received copy of said motion of
February 24, 1956, or the date after that set for the hearing thereof. Again, notice of the
order of respondent Judge, dated February 23, 1956, postponing said hearing to February 27,
1956, was not served on petitioner herein.
2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio
Rodriguez, and the appointment of Ramon Plata, as special administrator of said estate.
Petitioner had, therefore, no notice that her main opponent, Basilia Salud, and the latter's

principal witness, Victorina Salud, would be considered for the management of said. As a
consequence, said petitioner had no opportunity to object to the appointment of Basilia
Salud as special administratrix, and of Victorina Salud, as her assistant and adviser, and the
order of February 27, 1956, to this effect, denied due process to said petitioner.
3. Said order was issued with evident knowledge of the physical disability of Basilia Salud.
Otherwise respondent Judge would not have directed that she "be assisted and advised by
her niece Victorina Salud," and that the latter "shall always act as aide, interpreter and
adviser of Basilia Salud."
4. Thus, respondent Judge, in effect, appointed three (3) special administrators Basilia
Salud, Victorina Salud and Ramon Plata. Indeed, in the order of March 10, 1956, respondent
Judge maintained "the appointment of the three (3) above-named persons for the
management of the estate of the late Gabina Raquel."
5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between
Aurea Matias and Basilia Salud regarding the person to be appointed special administrator of
the estate of the deceased. The former proposed Horacio Rodriguez, whereas the latter
urged the appointment of Victorina Salud. By an order dated August 11, 1952, the Court,
then presided over by Hon. Jose Bernabe, Judge, decided the matter in favor of Horacio
Rodriguez and against Victorina Salud, upon the ground that, unlike the latter, who, as a
pharmacist and employee in the Santa Isabel Hospital, resides In the City of Manila, the
former, a practicing lawyer and a former public prosecutor, and later, mayor of the City of
Cavite, is a resident thereof. In other words, the order of resident thereof. In other words,
the order of respondent Judge of February 27, 1956, removing Rodriguez and appointing
Victorina Salud to the management of the estate, amounted to a reversal of the
aforementioned order of Judge Bernabe of August 11, 1952.
6. Although the probate of the alleged will and testament of Gabina Raquel was denied by
respondent Judge, the order to this effect is not, as yet, final and executory. It is pending
review on appeal taken by Aurea Matias. The probate of said alleged will being still within
realm of legal possibility, Aurea Matias has as the universal heir and executrix designated
in said instrument a special interest to protect during the pendency of said appeal. Thus,
*
in the case of Roxas vs. Pecson (46 Off. Gaz., 2058), this Court held that a widow, designated
as executrix in the alleged will and testament of her deceased husband, the probate of which
had denied in an order pending appeal, "has . . . the same beneficial interest after the
decision of the court disapproving the will, which is now pending appeal, because the
decision is not yet final and may be reversed by the appellate court."
7. The record shows that there are, at least two (2) factions among the heirs of the deceased,
namely, one, represented by the petitioner, and another, to which Basilia Salud and Victorina
Salud belong. Inasmuch as the lower court had deemed it best to appoint more than one
special administrator, justice and equity demands that both factions be represented in the
management of the estate of the deceased.
The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special
administrator may be appointed to administrator temporarily" the estate of the deceased,

must be considered in the light of the facts obtaining in said case. The lower court appointed
therein one special administrator for some properties forming part of said estate, and a
special administratrix for other properties thereof. Thus, there were two (2) separate and
independent special administrators. In the case at bar there is only one (1)
special administration, the powers of which shall be exercised jointly by two special coadministrators. In short, the Roxas case is not squarely in point. Moreover, there are
authorities in support of the power of courts to appoint several special co-administrators
(Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d.,
49; Davenport vs. Davenport, 60 A. 379).
Wherefore, the orders complained of are hereby annulled and set aside. The lower court
should re-hear the matter of removal of Horacio Rodriguez and appointment of special
administrators, after due notice to all parties concerned, for action in conformity with the
views expressed herein, with costs against respondents Victorina Salud and Ramon Plata. It is
so ordered.
G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the subscribing
witnesses was present in the small room where it was executed at the time when the
testator and the other subscribing witnesses attached their signatures; or whether at that
time he was outside, some eight or ten feet away, in a large room connecting with the
smaller room by a doorway, across which was hung a curtain which made it impossible for
one in the outside room to see the testator and the other subscribing witnesses in the act of
attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the
small room with the testator and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding, of course, disposes of the
appeal and necessitates the affirmance of the decree admitting the document to probate as
the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact
of vital importance in the determination of this case, as he was of opinion that under the
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that
one of the subscribing witnesses was in the outer room when the testator and the other

describing witnesses signed the instrument in the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution of the will. But we are unanimously of
opinion that had this subscribing witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses attached their signatures to the
instrument in the inner room, it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence" of the witness in the outer
room. This because the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."

HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance
of Cebu, and MANUEL B. LUGAY, respondents.

In the case just cited, on which the trial court relied, we held that:

ESGUERRA, J.:

The true test of presence of the testator and the witnesses in the execution of a
will is not whether they actually saw each other sign, but whether they might have
been seen each other sign, had they chosen to do so, considering their mental and
physical condition and position with relation to each other at the moment of
inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at
the moment of the subscription of each signature, must be such that they may see each other
sign if they choose to do so. This, of course, does not mean that the testator and the
subscribing witnesses may be held to have executed the instrument in the presence of each
other if it appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions. The evidence in the
case relied upon by the trial judge discloses that "at the moment when the witness Javellana
signed the document he was actually and physically present and in such position with
relation to Jaboneta that he could see everything that took place by merely casting his eyes
in the proper direction and without any physical obstruction to prevent his doing so." And the
decision merely laid down the doctrine that the question whether the testator and the
subscribing witnesses to an alleged will sign the instrument in the presence of each other
does not depend upon proof of the fact that their eyes were actually cast upon the paper at
the moment of its subscription by each of them, but that at that moment existing conditions
and their position with relation to each other were such that by merely casting the eyes in
the proper direction they could have seen each other sign. To extend the doctrine further
would open the door to the possibility of all manner of fraud, substitution, and the like, and
would defeat the purpose for which this particular condition is prescribed in the code as one
of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to
probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of
this instance against the appellant.
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the
probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita
N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit
"E"), alleging the will was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was execute without the testator having been fully
informed of the content thereof, particularly as to what properties he was disposing and that
the supposed last will and testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of the said last will and
testament Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case hinges, is
whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in
accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and subscribe to the will, and the second
requiring the testator and the witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the
Notary Public before whom the will was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed by at least three credible witnesses
in the presence of the testator and of each other, considering that the three attesting
witnesses must appear before the notary public to acknowledge the same. As the third
witness is the notary public himself, petitioner argues that the result is that only two
witnesses appeared before the notary public to acknowledge the will. On the other hand,
private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will,
following the reasoning of the trial court, maintains that there is substantial compliance with
the legal requirement of having at least three attesting witnesses even if the notary public
acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against
the purely technical reason that one of the witnesses required by law
signed as certifying to an acknowledgment of the testator's signature
under oath rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain
that of the appellant that the last will and testament in question was not executed in
accordance with law. The notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and
"before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently,
if the third witness were the notary public himself, he would have to avow assent, or admit
his having signed the will in front of himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate
of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby
set aside.
G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:

Furthermore, the function of a notary public is, among others, to guard against any illegal or
immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the
notary public were one of the attesting instrumental witnesses. For them he would be
interested sustaining the validity of the will as it directly involves him and the validity of his
own act. It would place him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would
be thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act as
a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64
0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing
merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson,
47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson
Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See
also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of
the law in this jurisdiction or are not decisive of the issue herein because the notaries public
and witnesses referred to aforecited cases merely acted as instrumental, subscribing
attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only
as attesting witness but also acknowledging witness, a situation not envisaged by Article 805
of the Civil Code which reads:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero
Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the
following attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of
Antero Mercado was signed by himself and also by us below his name and of this
attestation clause and that of the left margin of the three pages thereof. Page
three the continuation of this attestation clause; this will is written in Ilocano
dialect which is spoken and understood by the testator, and it bears the
corresponding number in letter which compose of three pages and all them were
signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one
thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

ART. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to
retain a copy of the will or file another with the office of the Clerk of
Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 80 be requiring at least three credible
witnesses to act as such and of Article 806 which requires that the testator and the required
number of witnesses must appear before the notary public to acknowledge the will. The
result would be, as has been said, that only two witnesses appeared before the notary public
for or that purpose. In the circumstances, the law would not be duly in observed.

The will appears to have been signed by Atty. Florentino Javier who wrote the name of
Antero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier.
Antero Mercado is alleged to have written a cross immediately after his name. The Court of
Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the
attestation clause failed (1) to certify that the will was signed on all the left margins of the
three pages and at the end of the will by Atty. Florentino Javier at the express request of the
testator in the presence of the testator and each and every one of the witnesses; (2) to
certify that after the signing of the name of the testator by Atty. Javier at the former's
request said testator has written a cross at the end of his name and on the left margin of the
three pages of which the will consists and at the end thereof; (3) to certify that the three

witnesses signed the will in all the pages thereon in the presence of the testator and of each
other.

late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809,
of the Civil Code.

In our opinion, the attestation clause is fatally defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write the testator's name under his express
direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner
(who is appealing by way of certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the cross written by the testator after
his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage.
Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having
been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104;
Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil.,
296 and Lopez vs. Liboro, 81 Phil., 429.

The records show that on December 5, 1978, Mateo Caballero, a widower without any
children and already in the twilight years of his life, executed a last will and testament at his
residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca,
Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer,
Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that
1
last will. It was declared therein, among other things, that the testator was leaving by way
of legacies and devises his real and personal properties to Presentacion Gaviola, Angel
Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of
2
whom do not appear to be related to the testator.

It is not here pretended that the cross appearing on the will is the usual signature of Antero
Mercado or even one of the ways by which he signed his name. After mature reflection, we
are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in
the attestation clause as to the signing of the will by the testator in the presence of the
witnesses, and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA
CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO,
VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by
his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented
herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of
Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as
Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu
seeking the probate of his last will and testament. The probate court set the petition for
hearing on August 20, 1979 but the same and subsequent scheduled hearings were
postponed for one reason to another. On May 29, 1980, the testator passed away before his
3
petition could finally be heard by the probate court. On February 25, 1981, Benoni Cabrera,
on of the legatees named in the will, sough his appointment as special administrator of the
testator's estate, the estimated value of which was P24,000.00, and he was so appointed by
4
the probate court in its order of March 6, 1981.
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a
second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and
docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate
proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First
Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment
5
of a special administrator for his estate.
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV
of the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on
June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of
Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate of
the will had to be heard and resolved first. On March 26, 1984 the case was reraffled and
eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until
6
the conclusion of the probate proceedings.

REGALADO, J.:

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as
oppositors and objected to the allowance of the testator's will on the ground that on the
alleged date of its execution, the testator was already in the poor state of health such that he
could not have possibly executed the same. Petitioners likewise reiterated the issue as to the
7
genuineness of the signature of the testator therein.

Presented for resolution by this Court in the present petition for review on certiorari is the
issue of whether or not the attestation clause contained in the last will and testament of the

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public
Atty. Filoteo Manigos, testified that the testator executed the will in question in their

presence while he was of sound and disposing mind and that, contrary to the assertions of
the oppositors, Mateo Caballero was in good health and was not unduly influenced in any
way in the execution of his will. Labuca also testified that he and the other witnesses
attested and signed the will in the presence of the testator and of each other. The other two
8
attesting witnesses were not presented in the probate hearing as the had died by then.
On April 5, 1988, the probate court rendered a decision declaring the will in question as the
last will and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors
cannot overcome the positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that indeed Mateo Caballero
executed the Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit "D" clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of Mateo
Caballero in Exhibit "C" examined by a handwriting expert of the NBI but
it would seem that despite their avowal and intention for the
examination of this signature of Mateo Caballero in Exhibit "C", nothing
came out of it because they abandoned the idea and instead presented
Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance
9
with all the requisites of the law.
Undaunted by the said judgment of the probate court, petitioners elevated the case in the
Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is
null and void for the reason that its attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will witnessed the testator signing
the will in their presence and that they also signed the will and all the pages thereof in the
presence of the testator and of one another.
10

On October 15, 1991, respondent court promulgated its decision affirming that of the trial
court, and ruling that the attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may
be considered as having substantialy complied with the requirements of
Art. 805 of the Civil Code. What appears in the attestation clause which
the oppositors claim to be defective is "we do certify that the testament
was read by him and the attestator, Mateo Caballero, has published unto
us the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters of the

upper part of each page, as his Last Will and Testament, and he has
signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin in the presence of the said testator
and in the presence of each and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them and of
one another. Or as the language of the law would have it that the
testator signed the will "in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another." If not completely or
ideally perfect in accordance with the wordings of Art. 805 but (sic) the
phrase as formulated is in substantial compliance with the requirement
11
of the law."
Petitioners moved for the reconsideration of the said ruling of respondent court, but the
12
same was denied in the latter's resolution of January 14, 1992, hence this appeal now
before us. Petitioners assert that respondent court has ruled upon said issue in a manner not
in accord with the law and settled jurisprudence on the matter and are now questioning once
more, on the same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some
prefatory observations which we feel should be made in aid of the rationale for our
resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with
the formalities prescribed by law, to control to a certain degree the disposition of his estate
13
after his death. Under the Civil Code, there are two kinds of wills which a testator may
14
execute. the first kind is the ordinary or attested will, the execution of which is governed by
Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written
by some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation should state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every

page thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witness, it shall
be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and
15
the attesting witness. hence it is likewise known as notarial will. Where the attestator is
deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do so.
Otherwise, he should designate two persons who would read the will and communicate its
contents to him in a practicable manner. On the other hand, if the testator is blind, the will
should be read to him twice; once, by anyone of the witnesses thereto, and then again, by
16
the notary public before whom it is acknowledged.
The other kind of will is the holographic will, which Article 810 defines as one that is entirely
written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in both kinds of will is that they
should be in writing and must have been executed in a language or dialect known to the
17
testator.
However, in the case of an ordinary or attested will, its attestation clause need not be
written in a language or dialect known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in the attestation clause likewise
18
need not even be known to the attesting witnesses. The last paragraph of Article 805
merely requires that, in such a case, the attestation clause shall be interpreted to said
witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses
certify that the instrument has been executed before them and to the manner of the
19
execution the same. It is a separate memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses, it gives affirmation to the fact that
20
compliance with the essential formalities required by law has been observed. It is made for
the purpose of preserving in a permanent form a record of the facts that attended the
execution of a particular will, so that in case of failure of the memory of the attesting
21
witnesses, or other casualty, such facts may still be proved.
Under the third paragraph of Article 805, such a clause, the complete lack of which would
22
result in the invalidity of the will, should state (1) the number of the pages used upon
which the will is written; (2) that the testator signed, or expressly caused another to sign, the
will and every page thereof in the presence of the attesting witnesses; and (3) that
theattesting witnesses witnessed the signing by the testator of the will and all its
pages, and that said witnesses also signed the will and every page thereof in the presence of
the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the will
is written is to safeguard against possible interpolation or omission of one or some of its
23
pages and to prevent any increase or decrease in the pages; whereas the subscription of
the signature of the testator and the attesting witnesses is made for the purpose of
authentication and identification, and thus indicates that the will is the very same instrument
24
executed by the testator and attested to by the witnesses.
Further, by attesting and subscribing to the will, the witnesses thereby declare the due
25
execution of the will as embodied in the attestation clause. The attestation clause,
therefore, provide strong legal guaranties for the due execution of a will and to insure the
26
authenticity thereof. As it appertains only to the witnesses and not to the testator, it need
27
be signed only by them. Where it is left unsigned, it would result in the invalidation of the
will as it would be possible and easy to add the clause on a subsequent occasion in the
28
absence of the testator and its witnesses.
In its report, the Code Commission commented on the reasons of the law for requiring the
formalities to be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the provisions on
the law on wills in this Project consists in the liberalization of the manner
of their execution with the end in view of giving the testator more
freedom in expressing his last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the
29
formalities in the execution of wills. . . .
2. An examination of the last will and testament of Mateo Caballero shows that it is
comprised of three sheets all of which have been numbered correlatively, with the left
margin of each page thereof bearing the respective signatures of the testator and the three
attesting witnesses. The part of the will containing the testamentary dispositions is expressed
in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is recited in the English language and is
30
likewise signed at the end thereof by the three attesting witnesses hereto. Since it is the
proverbial bone of contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal
addresses appear on the Opposite of our respective names, we do hereby
certify that the Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each page numbered
correlatively in the letters on the upper part of each page, as his Last Will
and Testament and he has the same and every page thereof, on the
spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to
the will in the presence of the testator and of one another. "Attestation" and "subscription"
differ in meaning. Attestation is the act of senses, while subscription is the act of the hand.
The former is mental, the latter mechanical, and to attest a will is to know that it was
published as such, and to certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to write on the same paper
31
the names of the witnesses, for the sole purpose of identification.
32

In Taboada vs. Rizal, we clarified that attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are done which
the statute requires for the execution of a will and that the signature of the testator exists as
a fact. On the other hand, subscription is the signing of the witnesses' names upon the same
paper for the purpose of identification of such paper as the will which was executed by the
testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the presence of
the testator and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of
the express requirements of the third paragraph of Article 805 of the Civil Code for
attestation clauses, fails to specifically state the fact that the attesting witnesses the testator
sign the will and all its pages in their presence and that they, the witnesses, likewise signed
the will and every page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the
fact that while it recites that the testator indeed signed the will and all its pages in the
presence of the three attesting witnesses and states as well the number of pages that were
used, the same does not expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the presence of the testator and of each
other.
The phrase "and he has signed the same and every page thereof, on the spaces provided for
his signature and on the left hand margin," obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of the testator and in
the presence of each and all of us" may, at first blush, appear to likewise signify and refer to
the witnesses, it must, however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the words "he has signed
the same and every page thereof, on the spaces provided for his signature and on the left
hand margin." What is then clearly lacking, in the final logical analysis , is the statement that
the witnesses signed the will and every page thereof in the presence of the testator and of
one another.
It is our considered view that the absence of that statement required by law is a fatal defect
or imperfection which must necessarily result in the disallowance of the will that is here
sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated
defect in the attestation clause obviously cannot be characterized as merely involving the
form of the will or the language used therein which would warrant the application of the

substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil
Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not render
the will invalid if it is not proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article
805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and
at the left margin of each page by the three attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said witness affixed their respective signatures in
the presence of the testator and of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it was indeed signed, but it does not
prove that the attesting witnesses did subscribe to the will in the presence of the testator
and of each other. The execution of a will is supposed to be one act so that where the
testator and the witnesses sign on various days or occasions and in various combinations, the
33
will cannot be stamped with the imprimatur of effectivity.
34

We believe that the further comment of former Justice J.B.L. Reyes regarding Article 809,
wherein he urged caution in the application of the substantial compliance rule therein, is
correct and should be applied in the case under consideration, as well as to future cases with
similar questions:
. . . The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was
notarized. All theses are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in
the probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be
with respect to the form of the attestation or the language employed therein. Such defects
or imperfections would not render a will invalid should it be proved that the will was really
executed and attested in compliance with Article 805. In this regard, however, the manner of
proving the due execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact
that the attesting witnesses signed each and every page of the will in the presence of the
35
testator and of each other. In such a situation, the defect is not only in the form or
language of the attestation clause but the total absence of a specific element required by

Article 805 to be specifically stated in the attestation clause of a will. That is precisely the
defect complained of in the present case since there is no plausible way by which we can
read into the questioned attestation clause statement, or an implication thereof, that the
attesting witness did actually bear witness to the signing by the testator of the will and all of
its pages and that said instrumental witnesses also signed the will and every page thereof in
the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied
on by respondents since it presupposes that the defects in the attestation clause can be
cured or supplied by the text of the will or a consideration of matters apparent therefrom
which would provide the data not expressed in the attestation clause or from which it may
necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual
requirements were actually complied within the execution of the will. In other words, defects
must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from with such facts may
be plausibly deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the
same and would accordingly be doing by the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views
as to which manner of interpretation should be followed in resolving issues centering on
compliance with the legal formalities required in the execution of wills. The formal
requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code
of Civil Procedure. Said section was later amended by Act No. 2645, but the provisions
respecting said formalities found in Act. No. 190 and the amendment thereto were
practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the
36
case of Abangan vs. Abangan, where it was held that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain these primordial
ends. Nonetheless, it was also emphasized that one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the right to make a will, hence
when an interpretation already given assures such ends, any other interpretation whatsoever
that adds nothing but demands more requisites entirely unnecessary, useless and frustrative
of the testator's last will, must be disregarded. The subsequent cases of Avera vs.
37
38
39
40
Garcia, Aldaba vs. Roque, Unson vs. Abella, Pecson vs. Coronel, Fernandez vs. Vergel
41
42
de Dios, et al., and Nayve vs. Mojal, et al. all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities that
should be observed in the execution of wills are mandatory in nature and are to be strictly
construed was followed in the subsequent cases of In the Matter of the Estate of

43

44

Saguinsin, In re Will of Andrada, Uy Coque vs. Sioca,

46
47
Neumark, and Sano vs. Quintana.

45

In re Estate of

48

Gumban vs. Gorecho, et al., provided the Court with the occasion to clarify the seemingly
conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation
clause had failed to state that the witnesses signed the will and each and every page thereof
on the left margin in the presence of the testator. The will in question was disallowed, with
these reasons therefor:
In support of their argument on the assignment of error abovementioned, appellants rely on a series of cases of this court beginning
with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875),
continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs.
Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923],
46 Phil., 841), and ending with Sano vs. Quintana([1925], 48 Phil., 506).
Appellee counters with the citation of a series of cases beginning
withAbangan vs. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel
de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast
and, if possible, conciliate the last two decisions cited by opposing
counsel, namely, those of Sano vs. Quintana,supra, and Nayve vs. Mojal
and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation
clause which does not recite that the witnesses signed the will and each
and every page thereof on the left margin in the presence of the testator
is defective, and such a defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs. Mojal and
Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve
vs. Mojal and Aguilar, supra, wherein it was held that the attestation
clause must estate the fact that the testator and the witnesses
reciprocally saw the signing of the will, for such an act cannot be proved
by the mere exhibition of the will, if it is not stated therein. It was also
held that the fact that the testator and the witnesses signed each and
every page of the will can be proved also by the mere examination of the
signatures appearing on the document itself, and the omission to state
such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do
they admit inconsistency in doctrine. Yet here, unless aided impossible to
reconcile the Mojal and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points
may be mentioned. In the first place, the Mojal, decision was concurred
in by only four members of the court, less than a majority, with two

strong dissenting opinions; the Quintana decision was concurred in by

seven members of the court, a clear majority, with one formal dissent. In
the second place, the Mojal decision was promulgated in December,
1924, while the Quintana decision was promulgated in December, 1925;
the Quintana decision was thus subsequent in point of time. And in the
third place, the Quintana decision is believed more nearly to conform to
the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute.
The law of the case is here found in section 61 of the Code of Civil
Procedure as amended by Act No. 2645, and in section 634 of the same
Code, as unamended. It is in part provided in section 61, as amended that
"No will . . . shall be valid . . . unless . . .." It is further provided in the same
section that "The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of three witnesses,
and the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other." Codal section 634 provides
that "The will shall be disallowed in either of the following case: 1.
If not executed and attested as in this Act provided." The law not alone
carefully makes use of the imperative, but cautiously goes further and
makes use of the negative, to enforce legislative intention. It is not within
the province of the courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the decision in the
case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original
text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that
once more appeared to revive the seeming diversity of views that was earlier threshed out
49
50
therein. The cases of Quinto vs. Morata, Rodriguez vs. Alcala, Enchevarria vs.
51
52
Sarmiento, and Testate Estate of Toray went the way of the ruling as restated
53
54
in Gumban. But De Gala vs. Gonzales, et al., Rey vs. Cartagena, De Ticson vs. De
55
56
57
58
Gorostiza, Sebastian vs. Panganiban, Rodriguez vs. Yap, Grey vs. Fabia, Leynez vs.
59
60
61
Leynez, Martir vs. Martir, Alcala vs. De Villa, Sabado vs.
62
63
64
Fernandez, Mendoza vs. Pilapil, and Lopez vs. Liboro, veered away from the strict
interpretation rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
inclination towards a liberal construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern tendency to give a
liberal approach to the interpretation of wills. Said rule thus became what is now Article 809
of the Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that
is, in accordance with the formalities prescribed by Section 618 of the
Code of Civil Procedure as amended by Act No. 2645. The Supreme Court
of the Philippines had previously upheld the strict compliance with the
legal formalities and had even said that the provisions of Section 618 of
the Code of Civil Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of the testator in disposing of his
property.
However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the
execution of wills. This liberal view is enunciated in the cases ofRodriguez
vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097,
October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically
gone back to the original provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645 in the year 1916. To
turn this attitude into a legislative declaration and to attain the main
objective of the proposed Code in the liberalization of the manner of
executing wills, article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation
or in the language used therein shall not render the
will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with
65
all the requirements of article 829."
66

The so-called liberal rule, the Court said in Gil vs. Murciano, "does not offer any puzzle or
difficulty, nor does it open the door to serious consequences. The later decisions do tell us
when and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing details that
should appear in the will itself. They only permit a probe into the will, an exploration into its
confines, to ascertain its meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any
fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied
by an examination of the will itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the allowance to probate of the will
being assailed. However, those omissions which cannot be supplied except by

evidence aliunde would result in the invalidation of the attestation clause and ultimately, of
67
the will itself.
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent
court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith
DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and
Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter
of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed
with the settlement of the estate of the said decedent.
SO ORDERED.
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa
City, and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir
of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December
24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound
and disposing mind and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In
accordance with the rights of said Church, and that my executrix hereinafter named provide
and erect at the expose of my state a suitable monument to perpetuate my memory.

xxx xxx xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her
sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging,
in substance, that the holographic Will contained alterations, corrections, and insertions
without the proper authentication by the full signature of the testatrix as required by Article
814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will the testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written, should be given effect and
probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading
in part:
The document Exhibit "C" was submitted to the National Bureau of
Investigation for examination. The NBI reported that the handwriting, the
signature, the insertions and/or additions and the initial were made by
one and the same person. Consequently, Exhibit "C" was the handwriting
of the decedent, Natividad K. Kalaw. The only question is whether the
win, Exhibit 'C', should be admitted to probate although the alterations
and/or insertions or additions above-mentioned were not authenticated
by the full signature of the testatrix pursuant to Art. 814 of the Civil Code.
The petitioner contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves agreed thru
their counsel to submit the Document to the NBI FOR EXAMINATIONS.
This is untenable. The parties did not agree, nor was it impliedly
understood, that the oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil
Code is applicable to Exhibit "C". Finding the insertions, alterations
and/or additions in Exhibit "C" not to be authenticated by the full
signature of the testatrix Natividad K. Kalaw, the Court will deny the
admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the alterations
and/or insertions were the testatrix, the denial to probate of her holographic Will would be
contrary to her right of testamentary disposition. Reconsideration was denied in an Order,

dated November 2, 1973, on the ground that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."

que las contenga, y con mayor motivo cuando las palabras enmendadas,
tachadas, o entrerrenglonadas no tengan importancia ni susciten duda
alguna acerca del pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria, sin trascendencia
alguna(l).

From that Order, dated September 3, 1973, denying probate, and the Order dated November
2, 1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole
legal question of whether or not theoriginal unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of authentication by the full signature of
the testatrix, should be probated or not, with her as sole heir.

Mas para que sea aplicable la doctrina de excepcion contenida en este

ultimo fallo, es preciso que las tachaduras, enmiendas o
entrerrenglonados sin salvar saan de pala bras que no afecter4 alteren ni
uarien de modo substancial la express voluntad del testador manifiesta
en el documento. Asi lo advierte la sentencia de 29 de Noviembre de
1916, que declara nulo un testamento olografo por no estar salvada por
el testador la enmienda del guarismo ultimo del ao en que fue
3
extendido (Emphasis ours).

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator
in a holographic Will litem not been noted under his signature, ... the Will is not thereby
invalidated as a whole, but at most only as respects the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary when he said "la omision de la salvedad
no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de
2
Abril de 1895."
However, when as in this case, the holographic Will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but which
alteration did not carry the requisite of full authentication by the full signature of the
testator, the effect must be that the entire Will is voided or revoked for the simple reason
that nothing remains in the Will after that which could remain valid. To state that the Will as
first written should be given efficacy is to disregard the seeming change of mind of the
testatrix. But that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures
or alterations in a holographic Will, which affect only the efficacy of the altered words
themselves but not the essence and validity of the Will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix herein, her real intention cannot be
determined with certitude. As Manresa had stated in his commentary on Article 688 of the
Spanish Civil Code, whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la
sentencia que no declara la nulidad de un testamento olografo que
contenga palabras tachadas, enmendadas o entre renglones no salvadas
por el testador bajo su firnia segun previene el parrafo tercero del
mismo, porque, en realidad, tal omision solo puede afectar a la validez o
eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa
disposicion en parrafo aparte de aquel que determine las condiciones
necesarias para la validez del testamento olografo, ya porque, de admitir
lo contrario, se Ilegaria al absurdo de que pequefias enmiendas no
salvadas, que en nada afectasen a la parte esencial y respectiva del
testamento, vinieran a anular este, y ya porque el precepto contenido en
dicho parrafo ha de entenderse en perfecta armonia y congruencia con el
art. 26 de la ley del Notariado que declara nulas las adiciones apostillas
entrerrenglonados, raspaduras y tachados en las escrituras matrices,
siempre que no se salven en la forma prevenida, paro no el documento

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.

PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
1
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which
reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988
of the trial court is hereby REVERSED and SET ASIDE, and the petition for
probate is hereby DISMISSED. No costs.
2

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, in Sp.
Proc. No. Q-37171, and the instrument submitted for probate is the holographic
will of the late Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma
Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar
Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged that at the time of its execution, she was of sound
and disposing mind, not acting under duress, fraud or undue influence, and was in every
respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's body
nor the signature therein was in decedent's handwriting; it contained alterations and
corrections which were not duly signed by decedent; and, the will was procured by
petitioners through improper pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located
in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by
decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to
probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only
the question of identity of the will, its due execution and the
testamentary capacity of the testatrix, this probate court finds no reason
at all for the disallowance of the will for its failure to comply with the
formalities prescribed by law nor for lack of testamentary capacity of the
testatrix.
For one, no evidence was presented to show that the will in question is
different from the will actually executed by the testatrix. The only
objections raised by the oppositors . . . are that the will was not written in
the handwriting of the testatrix which properly refers to the question of
its due execution, and not to the question of identity of will. No other will
was alleged to have been executed by the testatrix other than the will
herein presented. Hence, in the light of the evidence adduced, the
identity of the will presented for probate must be accepted, i.e., the will
submitted in Court must be deemed to be the will actually executed by
the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the
handwriting of the testatrix has been disputed, the petitioners, however,
have satisfactorily shown in Court that the holographic will in question
was indeed written entirely, dated and signed in the handwriting of the
testatrix. Three (3) witnesses who have convincingly shown knowledge of
the handwriting of the testatrix have been presented and have explicitly
and categorically identified the handwriting with which the holographic

will in question was written to be the genuine handwriting and signature

of the testatrix. Given then the aforesaid evidence, the requirement of
the law that the holographic will be entirely written, dated and signed in
the handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix, (private
respondent) Clemente Sand himself has testified in Court that the
testatrix was completely in her sound mind when he visited her during
her birthday celebration in 1981, at or around which time the holographic
will in question was executed by the testatrix. To be of sound mind, it is
sufficient that the testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the proper object of her bounty,
and thecharacter of the testamentary act . . . The will itself shows that
the testatrix even had detailed knowledge of the nature of her estate.
She even identified the lot number and square meters of the lots she had
conveyed by will. The objects of her bounty were likewise identified
explicitly. And considering that she had even written a nursing book
which contained the law and jurisprudence on will and succession, there
is more than sufficient showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the
disallowance of herein holographic will. While it was alleged that the said
will was procured by undue and improper pressure and influence on the
part of the beneficiary or of some other person, the evidence adduced
have not shown any instance where improper pressure or influence was
exerted on the testatrix. (Private respondent) Clemente Sand has
testified that the testatrix was still alert at the time of the execution of
the will, i.e., at or around the time of her birth anniversary celebration in
1981. It was also established that she is a very intelligent person and has
a mind of her own. Her independence of character and to some extent,
her sense of superiority, which has been testified to in Court, all show the
unlikelihood of her being unduly influenced or improperly pressured to
make the aforesaid will. It must be noted that the undue influence or
improper pressure in question herein only refer to the making of a will
and not as to the specific testamentary provisions therein which is the
proper subject of another proceeding. Hence, under the circumstances,
this Court cannot find convincing reason for the disallowance of the will
herein.

Considering then that it is a well-established doctrine in the law on

succession that in case of doubt, testate succession should be preferred
over intestate succession, and the fact that no convincing grounds were
presented and proven for the disallowance of the holographic will of the
late Annie Sand, the aforesaid will submitted herein must be admitted to
3
probate. (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will was
dismissed. The Court of Appeals found that, "the holographic will fails to meet the
4
requirements for its validity." It held that the decedent did not comply with Articles 813 and
814 of the New Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will
are signed without being dated, and the last disposition has a signature
and date, such date validates the dispositions preceding it, whatever be
the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or
signed but not dated. It also found that the erasures, alterations and cancellations made
thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the
following cases:
(a) If not executed and attested as required by law;

Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its
execution;
(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.
5

These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to
admit a holographic will to probate, the only issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will
was executed in accordance with the formalities prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the time the will was executed; and, (4) whether
6
the execution of the will and its signing were the voluntary acts of the decedent.

(b) If the testator was insane, or otherwise mentally incapable to make a

will, at the time of its execution;

In the case at bench, respondent court held that the holographic will of Anne Sand was not
executed in accordance with the formalities prescribed by law. It held that Articles 813 and
814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of
said will. This is erroneous.

(c) If it was executed under duress, or the influence of fear, or threats;

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

(d) If it was procured by undue and improper pressure and influence, on

the part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he
did not intend that the instrument should be his will at the time of fixing
his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:

The object of the solemnities surrounding the execution of wills is to

close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must not lose
sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds

nothing but demands more requisites entirely unnecessary, useless and

frustrative of the testator's last will, must be disregarded.

Art. 678: A will is called holographic when the testator writes it himself in
the form and with the requisites required in Article 688.

For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of
the New Civil Code.

Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper
corresponding to the year of its execution, written in its entirety by the
testator and signed by him, and must contain a statement of the year,
month and day of its execution.

In the case of holographic wills, on the other hand, what assures authenticity is the
7
requirement that they be totally autographic or handwritten by the testator himself, as
provided under Article 810 of the New Civil Code, thus:

If it should contain any erased, corrected, or interlined words, the

testator must identify them over his signature.

A person may execute a holographic will which must be entirely written,

dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not
be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity
of the dispositions contained in the holographic will, but not its probate. If the testator fails
to sign and date some of the dispositions, the result is that these dispositions cannot be
effectuated. Such failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding noncompliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237
242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or interlined.
Manresa gave an identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de jurisprudencia
8
establecida en la sentencia de 4 de Abril de 1985." (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the
9
date of the holographic will or on testator's signature, their presence does not invalidate
10
the will itself. The lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and
dating of dispositions appear in provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the holographic will (Article 810). The
distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They read as follows:

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements
of Article 810 of the New Civil Code and not those found in Articles 813 and 814 of the
same Code are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the
house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and
must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic
validity of the will sought to be probated. However, in exceptional instances, courts are not
powerless to do what the situation constrains them to do, and pass upon certain provisions
11
of the will. In the case at bench, decedent herself indubitably stated in her holographic will
that the Cabadbaran property is in the name of her late father, John H. Sand (which led
oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as
correctly held by respondent court, she cannot validly dispose of the whole property, which
she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in
CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with
respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan
del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No.
Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent
Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran
property. No costs.
SO ORDERED.

EN BANC
[G.R. No. L-8437. November 28, 1956.]
ESTATE OF K. H. HEMADY, deceased, vs. LUZON SURETY CO., INC.,
claimant-Appellant.

DECISION
REYES, J. B. L., J.:
Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance
of Rizal, presided by Judge Hermogenes Caluag, dismissing its claim against
the Estate of K. H. Hemady (Special Proceeding No. Q-293) for failure to
state a cause of action.
The Luzon Surety Co. had filed a claim against the Estate based on twenty
different indemnity agreements, or counter bonds, each subscribed by a
distinct principal and by the deceased K. H. Hemady, a surety solidary
guarantor) in all of them, in consideration of the Luzon Surety Co.s of
having guaranteed, the various principals in favor of different creditors. The
twenty counterbonds, or indemnity agreements, all contained the following
stipulations:
chanroblesvirtuallawlibrary

Premiums. As consideration for this suretyship, the undersigned jointly

and severally, agree to pay the COMPANY the sum of ________________
(P______) pesos, Philippines Currency, in advance as premium there of for
every __________ months or fractions thereof, this ________ or any
renewal or substitution thereof is in effect.
Indemnity. The undersigned, jointly and severally, agree at all times to
indemnify the COMPANY and keep it indemnified and hold and save it
harmless from and against any and all damages, losses, costs, stamps, taxes,
penalties, charges, and expenses of whatsoever kind and nature which the
COMPANY shall or may, at any time sustain or incur in consequence of
having become surety upon this bond or any extension, renewal,
substitution or alteration thereof made at the instance of the undersigned
or any of them or any order executed on behalf of the undersigned or any of
them;
and to pay, reimburse and make good to the COMPANY, its
successors and assigns, all sums and amount of money which it or its
representatives shall pay or cause to be paid, or become liable to pay, on
account of the undersigned or any of them, of whatsoever kind and nature,
including 15% of the amount involved in the litigation or other matters
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growing out of or connected therewith for counsel or attorneys fees, but in

no case less than P25. It is hereby further agreed that in case of extension or
renewal of this ________ we equally bind ourselves for the payment thereof
under the same terms and conditions as above mentioned without the
necessity of executing another indemnity agreement for the purpose and
that we hereby equally waive our right to be notified of any renewal or
extension of this ________ which may be granted under this indemnity
agreement.
Interest on amount paid by the Company. Any and all sums of money so
paid by the company shall bear interest at the rate of 12% per annum
which interest, if not paid, will be accummulated and added to the capital
quarterly order to earn the same interests as the capital and the total sum
thereof, the capital and interest, shall be paid to the COMPANY as soon as
the COMPANY shall have become liable therefore, whether it shall have
paid out such sums of money or any part thereof or not.
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Waiver. It is hereby agreed upon by and between the undersigned that

any question which may arise between them by reason of this document
and which has to be submitted for decision to Courts of Justice shall be
brought before the Court of competent jurisdiction in the City of Manila,
waiving for this purpose any other venue. Our right to be notified of the
acceptance and approval of this indemnity agreement is hereby likewise
waived.
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Our Liability Hereunder. It shall not be necessary for the COMPANY to

bring suit against the principal upon his default, or to exhaust the property
of the principal, but the liability hereunder of the undersigned indemnitor
shall be jointly and severally, a primary one, the same as that of the
principal, and shall be exigible immediately upon the occurrence of such
default. (Rec. App. pp. 98- 102.)
The Luzon Surety Co., prayed for allowance, as a contingent claim, of the
value of the twenty bonds it had executed in consideration of the
counterbonds, and further asked for judgment for the unpaid premiums and
documentary stamps affixed to the bonds, with 12 per cent interest
thereon.
Before answer was filed, and upon motion of the administratrix of Hemadys
estate, the lower court, by order of September 23, 1953, dismissed the

claims of Luzon Surety Co., on two grounds: (1) that the premiums due
and cost of documentary stamps were not contemplated under the
indemnity agreements to be a part of the undertaking of the guarantor
(Hemady), since they were not liabilities incurred after the execution of the
counterbonds; and (2) that whatever losses may occur after Hemadys
death, are not chargeable to his estate, because upon his death he ceased
to be guarantor.
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Taking up the latter point first, since it is the one more far reaching in
effects, the reasoning of the court below ran as follows:
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The administratrix further contends that upon the death of Hemady, his
liability as a guarantor terminated, and therefore, in the absence of a
showing that a loss or damage was suffered, the claim cannot be considered
contingent. This Court believes that there is merit in this contention and
finds support in Article 2046 of the new Civil Code. It should be noted that a
new requirement has been added for a person to qualify as a guarantor,
that is: integrity. As correctly pointed out by the Administratrix, integrity
is something purely personal and is not transmissible. Upon the death of
Hemady, his integrity was not transmitted to his estate or successors.
Whatever loss therefore, may occur after Hemadys death, are not
chargeable to his estate because upon his death he ceased to be a
guarantor.
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Another clear and strong indication that the surety company has exclusively
relied on the personality, character, honesty and integrity of the now
deceased K. H. Hemady, was the fact that in the printed form of the
indemnity agreement there is a paragraph entitled Security by way of first
mortgage, which was expressly waived and renounced by the security
company. The security company has not demanded from K. H. Hemady to
comply with this requirement of giving security by way of first mortgage. In
the supporting papers of the claim presented by Luzon Surety Company, no
real property was mentioned in the list of properties mortgaged which
appears at the back of the indemnity agreement. (Rec. App., pp. 407-408).
We find this reasoning untenable. Under the present Civil Code (Article
1311), as well as under the Civil Code of 1889 (Article 1257), the rule is that

Contracts take effect only as between the parties, their assigns and heirs,
except in the case where the rights and obligations arising from the contract

are not transmissible by their nature, or by stipulation or by provision of

law.
While in our successional system the responsibility of the heirs for the debts
of their decedent cannot exceed the value of the inheritance they receive
from him, the principle remains intact that these heirs succeed not only to
the rights of the deceased but also to his obligations. Articles 774 and 776 of
the New Civil Code (and Articles 659 and 661 of the preceding one)
expressly so provide, thereby confirming Article 1311 already quoted.
ART. 774. Succession is a mode of acquisition by virtue of which the
property, rights and obligations to the extent of the value of the
inheritance, of a person are transmitted through his death to another or
others either by his will or by operation of law.
ART. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.
In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled:

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Under the Civil Code the heirs, by virtue of the rights of succession are
subrogated to all the rights and obligations of the deceased (Article 661)
and cannot be regarded as third parties with respect to a contract to which
the deceased was a party, touching the estate of the deceased (Barrios vs.
Dolor, 2 Phil. 44).
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The principle on which these decisions rest is not affected by the provisions
of the new Code of Civil Procedure, and, in accordance with that principle,
the heirs of a deceased person cannot be held to be third persons in
relation to any contracts touching the real estate of their decedent which
comes in to their hands by right of inheritance; they take such property
subject to all the obligations resting thereon in the hands of him from whom
they derive their rights.
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(See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman
vs. Salak, 91 Phil., 265).
The binding effect of contracts upon the heirs of the deceased party is not
altered by the provision in our Rules of Court that money debts of a
deceased must be liquidated and paid from his estate before the residue is
distributed among said heirs (Rule 89). The reason is that whatever payment
is thus made from the estate is ultimately a payment by the heirs and

distributees, since the amount of the paid claim in fact diminishes or

reduces the shares that the heirs would have been entitled to receive.
Under our law, therefore, the general rule is that a partys contractual rights
and obligations are transmissible to the successors. The rule is a
consequence of the progressive depersonalization of patrimonial rights
and duties that, as observed by Victorio Polacco, has characterized the
history of these institutions. From the Roman concept of a relation from
person to person, the obligation has evolved into a relation from patrimony
to patrimony, with the persons occupying only a representative position,
barring those rare cases where the obligation is strictly personal, i.e., is
contracted intuitu personae, in consideration of its performance by a
specific person and by no other. The transition is marked by the
disappearance of the imprisonment for debt.

Siendo estos los continuadores de la personalidad del causante, sobre ellos

recaen los efectos de los vinculos juridicos creados por sus antecesores, y
para evitarlo, si asi se quiere, es indespensable convension terminante en
tal sentido.
Por su esencia, el derecho y la obligacion tienden a ir ms all de las
personas que les dieron vida, y a ejercer presion sobre los sucesores de esa
persona; cuando no se quiera esto, se impone una estipulacion limitativa
expresamente de la transmisibilidad o de cuyos tirminos claramente se
deduzca la concresion del concreto a las mismas personas que lo otorgon.
(Scaevola, Codigo Civil, Tomo XX, p. 541-542) (Emphasis supplied.)
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Because under the law (Article 1311), a person who enters into a contract is
deemed to have contracted for himself and his heirs and assigns, it is
unnecessary for him to expressly stipulate to that effect;
hence, his
failure to do so is no sign that he intended his bargain to terminate upon his
death. Similarly, that the Luzon Surety Co., did not require bondsman
Hemady to execute a mortgage indicates nothing more than the companys
faith and confidence in the financial stability of the surety, but not that his
obligation was strictly personal.
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Of the three exceptions fixed by Article 1311, the nature of the obligation of
the surety or guarantor does not warrant the conclusion that his peculiar
individual qualities are contemplated as a principal inducement for the
contract. What did the creditor Luzon Surety Co. expect of K. H. Hemady
when it accepted the latter as surety in the counterbonds? Nothing but the
reimbursement of the moneys that the Luzon Surety Co. might have to
disburse on account of the obligations of the principal debtors. This
reimbursement is a payment of a sum of money, resulting from an
obligation to give; and to the Luzon Surety Co., it was indifferent that the
reimbursement should be made by Hemady himself or by some one else in
his behalf, so long as the money was paid to it.
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The second exception of Article 1311, p. 1, is intransmissibility by stipulation

of the parties. Being exceptional and contrary to the general rule, this
intransmissibility should not be easily implied, but must be expressly
established, or at the very least, clearly inferable from the provisions of the
contract itself, and the text of the agreements sued upon nowhere indicate
that they are non-transferable.
(b) Intransmisibilidad por pacto. Lo general es la transmisibilidad de
darechos y obligaciones;
le excepcion, la intransmisibilidad. Mientras
nada se diga en contrario impera el principio de la transmision, como
elemento natural a toda relacion juridica, salvo las personalisimas. Asi, para
la no transmision, es menester el pacto expreso, porque si no, lo convenido
entre partes trasciende a sus herederos.
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The third exception to the transmissibility of obligations under Article 1311

exists when they are not transmissible by operation of law. The provision
makes reference to those cases where the law expresses that the rights or
obligations are extinguished by death, as is the case in legal support (Article
300), parental authority (Article 327), usufruct (Article 603), contracts for a
piece of work (Article 1726), partnership (Article 1830 and agency (Article
1919). By contract, the articles of the Civil Code that regulate guaranty or
suretyship (Articles 2047 to 2084) contain no provision that the guaranty is
extinguished upon the death of the guarantor or the surety.
The lower court sought to infer such a limitation from Art. 2056, to the
effect that one who is obliged to furnish a guarantor must present a person
who possesses integrity, capacity to bind himself, and sufficient property to
answer for the obligation which he guarantees. It will be noted, however,
that the law requires these qualities to be present only at the time of the
perfection of the contract of guaranty. It is self-evident that once the
contract has become perfected and binding, the supervening incapacity of
the guarantor would not operate to exonerate him of the eventual liability
he has contracted; and if that be true of his capacity to bind himself, it
should also be true of his integrity, which is a quality mentioned in the
article alongside the capacity.
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The foregoing concept is confirmed by the next Article 2057, that runs as
follows:
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ART. 2057. If the guarantor should be convicted in first instance of a

crime involving dishonesty or should become insolvent, the creditor may
demand another who has all the qualifications required in the preceding
article. The case is excepted where the creditor has required and stipulated
that a specified person should be guarantor.
From this article it should be immediately apparent that the supervening
dishonesty of the guarantor (that is to say, the disappearance of his integrity
after he has become bound) does not terminate the contract but merely
entitles the creditor to demand a replacement of the guarantor. But the
step remains optional in the creditor: it is his right, not his duty; he may
waive it if he chooses, and hold the guarantor to his bargain. Hence Article
2057 of the present Civil Code is incompatible with the trial courts stand
that the requirement of integrity in the guarantor or surety makes the
latters undertaking strictly personal, so linked to his individuality that the
guaranty automatically terminates upon his death.
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The contracts of suretyship entered into by K. H. Hemady in favor of Luzon

Surety Co. not being rendered intransmissible due to the nature of the
undertaking, nor by the stipulations of the contracts themselves, nor by
provision of law, his eventual liability thereunder necessarily passed upon
his death to his heirs. The contracts, therefore, give rise to contingent claims
provable against his estate under section 5, Rule 87 (2 Moran, 1952 ed., p.
437; Gaskell & Co. vs. Tan Sit, 43 Phil. 810, 814).
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The most common example of the contigent claim is that which arises
when a person is bound as surety or guarantor for a principal who is
insolvent or dead. Under the ordinary contract of suretyship the surety has
no claim whatever against his principal until he himself pays something by
way of satisfaction upon the obligation which is secured. When he does this,
there instantly arises in favor of the surety the right to compel the principal
to exonerate the surety. But until the surety has contributed something to
the payment of the debt, or has performed the secured obligation in whole
or in part, he has no right of action against anybody no claim that could
be reduced to judgment. (May vs. Vann, 15 Pla., 553; Gibson vs. Mithell,
16 Pla., 519; Maxey vs. Carter, 10 Yarg. [Tenn.], 521 Reeves vs. Pulliam, 7
Baxt. [Tenn.], 119; Ernst vs. Nou, 63 Wis., 134.)
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For Defendant administratrix it is averred that the above doctrine refers to a

case where the surety files claims against the estate of the principal
debtor; and it is urged that the rule does not apply to the case before us,
where the late Hemady was a surety, not a principal debtor. The argument
evinces a superficial view of the relations between parties. If under the
Gaskell ruling, the Luzon Surety Co., as guarantor, could file a contingent
claim against the estate of the principal debtors if the latter should die,
there is absolutely no reason why it could not file such a claim against the
estate of Hemady, since Hemady is a solidary co-debtor of his principals.
What the Luzon Surety Co. may claim from the estate of a principal debtor it
may equally claim from the estate of Hemady, since, in view of the existing
solidarity, the latter does not even enjoy the benefit of exhaustion of the
assets of the principal debtor.
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The foregoing ruling is of course without prejudice to the remedies of the

administratrix against the principal debtors under Articles 2071 and 2067 of
the New Civil Code.
Our conclusion is that the solidary guarantors liability is not extinguished by
his death, and that in such event, the Luzon Surety Co., had the right to file
against the estate a contingent claim for reimbursement. It becomes
unnecessary now to discuss the estates liability for premiums and stamp
taxes, because irrespective of the solution to this question, the Luzon
Suretys claim did state a cause of action, and its dismissal was erroneous.
Wherefore, the order appealed from is reversed, and the records are
ordered remanded to the court of origin, with instructions to proceed in
accordance with law. Costs against the Administratrix- Appellee. SO
ORDERED.