Republic of the Philippines

SUPREME COURT
Manila

The opposition to the probate was on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the petitioner and
his wife, and (2) that the testatrix did not seriously intend the instrument to be her last
will, and that the same was actually written either on the 5th or 6th day of August 1957
and not on November 20, 1956 as appears on the will.

EN BANC
G.R. No. L-14003

August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the
Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the
determination of the quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp.
22-24):
"Briefly speaking, the following facts were established by the petitioner; that on
September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City,
known to be the last residence of said testatrix; that Francisco Azaola, petitioner
herein for probate of the holographic will, submitted the said holographic will
(Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the
nephew of deceased Cesario Singson; that witness Francisco Azaola testified that
he saw the holographic will (Exh. C) one month, more or less, before the death of
the testatrix, as the same was handed to him and his wife; that the witness
testified also that he recognized all the signatures appearing in the holographic
will (Exh. C) as the handwriting of the testatrix and to reinforce said statement,
witness presented the mortgage (Exh. E), the special power of the attorney (Exh.
F), and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs.
G and G-1) including an affidavit (Exh. G-2), and that there were further
exhibited in court two residence certificates (Exhs. H and H-1) to show the
signatures of the testatrix, for comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the aforesaid documentary evidence is
in the handwriting of the testatrix as well as the signatures appearing in the
aforesaid documentary evidence is in the handwriting of the testatrix as well as
the signatures appearing therein are the signatures of the testatrix; that said
witness, in answer to a question of his counsel admitted that the holographic will
was handed to him by the testatrix. "apparently it must have been written by her"
(t.s.n., p. 11). However, on page 16 on the same transcript of the stenographic
notes, when the same witness was asked by counsel if he was familiar with the
penmanship and handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was asked again whether the
penmanship referred to in the previous answer as appearing in the holographic
will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers";
that it was also established in the proceedings that the assessed value of the
property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00.

The probate was denied on the ground that under Article 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the signature
are in the writing of the testatrix, the probate being contested; and because the lone
witness presented by the proponent "did not prove sufficiently that the body of the will was
written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one
witness because the will's authenticity was not questioned; and second, that Article 811
does not mandatorily require the production of three witnesses to identify the handwriting
and signature of a holographic will, even if its authenticity should be denied by the adverse
party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least
one witness who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of the testator. If the
will is contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be resorted
to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he
was not required to produce more than one witness; but even if the genuineness of the
holographic will were contested, we are of the opinion that Article 811 of our present Civil
Code can not be interpreted as to require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under penalty of having the probate denied.
Since no witness may have been present at the execution of a holographic will, none being
required by law (Art. 810, new Civil Code), it becomes obvious that the existence of
witness possessing the requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and producing any three witnesses;
they must be witnesses "who know the handwriting and signature of the testator" and who
can declare (truthfully, of course, even if the law does not so express) "that the will and
the signature are in the handwriting of the testator". There may be no available witness of
the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a
positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become
an impossibility. That is evidently the reason why the second paragraph of Article 811
prescribes that
in the absence of any competent witness referred to in the preceding paragraph,
and if the court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found (or
what amounts to the same thing, that no competent witness may be willing to testify to
the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if
the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered
mandatory only in the case of ordinary testaments, precisely because the presence of at
least three witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), and
the rule requiring production of three witnesses must be deemed merely permissive if
absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the
Court deem it necessary", which reveal that what the law deems essential is that the Court
should be convinced of the will's authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the ill is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the Court may still, and in
fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the
noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho
precepto induce la conclusion de que siempre o por lo menos, en la mayor parte
de los casos, el Juez debe acudir al criterio pericial para que le ilustre acerca de la
autenticidad del testamento olografo, aunque ya esten insertas en los autos del
expediente las declaraciones testificales. La prudencia con que el Juez debe de
proceder en resoluciones de transcendencia asi lo exige, y la indole delicada y
peligrosa del testamento olografo lo hace necesario para mayor garantia de todos
los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del
dicho profano de los testigos y un modo de desvanecer las ultimas dudas que
pudieran ocurrir al Juez acerca de la autenticidad que trata de averigaur y
declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre que
el Juez lo estime conveniente), haya habido o no testigos y dudaran o no estos
respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de los sucesos y
de su significacion, para responder debidamente de las resoluciones que haya de
dictar.
And because the law leaves it to the trial court if experts are still needed, no unfavourable
inference can be drawn from a party's failure to offer expert evidence, until and unless the
court expresses dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is
merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been called
upon to construe the import of said article, the interest of justice would be better served,

in our opinion, by giving the parties ample opportunity to adduce additional evidence,
including expert witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered
remanded to the Court of origin, with instructions to hold a new trial in conformity with
this opinion. But evidence already on record shall not be retaken. No costs.

FIRST DIVISION

[G.R. No. 123486. August 12, 1999]

EUGENIA RAMONAL CODOY, and MANUEL

RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE
SALCEDO, and EUFEMIA PATIGAS, respondents.
DECISION
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of
Appeals[1] and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators holographic will has been established and
the handwriting and signature therein (exhibit S) are hers, enough to probate said
will. Reversal of the judgment appealed from and the probate of the holographic will in
question be called for. The rule is that after plaintiff has completed presentation of his
evidence and the defendant files a motion for judgment on demurrer to evidence on the
ground that upon the facts and the law plaintiff has shown no right to relief, if the motion
is granted and the order to dismissal is reversed on appeal, the movant loses his right to
present evidence in his behalf (Sec. 1 Rule 35 Revised Rules of Court). Judgment may,
therefore, be rendered for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered allowing the
probate of the holographic will of the testator Matilde Seo Vda. de Ramonal.[2]
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de
Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition [3] for
probate of the holographic will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de
Ramonal, was of sound and disposing mind when she executed the will on August 30,
1978, that there was no fraud, undue influence, and duress employed in the person of the
testator, and the will was written voluntarily.

The assessed value of the decedents property, including all real and personal
property was about P400,000.00, at the time of her death.[4]
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition[5] to the petition for probate, alleging that the holographic will was a forgery and
that the same is even illegible. This gives an impression that a third hand of an
interested party other than the true hand of Matilde Seo Vda. de Ramonal executed the
holographic will.
Petitioners argued that the repeated dates incorporated or appearing on the will after
every disposition is out of the ordinary. If the deceased was the one who executed the
will, and was not forced, the dates and the signature should appear at the bottom after the
dispositions, as regularly done and not after every disposition. And assuming that the
holographic will is in the handwriting of the deceased, it was procured by undue and
improper pressure and influence on the part of the beneficiaries, or through fraud and
trickery.
Respondents
presented
six
(6)
witnesses
and
various
documentary
evidence. Petitioners instead of presenting their evidence, filed a demurrer [6] to evidence,
claiming that respondents failed to establish sufficient factual and legal basis for the
probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of
which reads:

Matilde Ramonal Binanay further testified that at the time of the death of Matilde
Vda. de Ramonal, she left a holographic will dated August 30, 1978, which was personally
and entirely written, dated and signed, by the deceased and that all the dispositions
therein, the dates, and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan
de Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by
the deceased in connection with the intestate proceedings of her late husband, as a result
of which he is familiar with the handwriting of the latter. He testified that the signature
appearing in the holographic will was similar to that of the deceased, Matilde Seo Vda. de
Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testified that she
processed the application of the deceased for pasture permit and was familiar with the
signature of the deceased, since the deceased signed documents in her presence, when
the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived
with the deceased since birth, and was in fact adopted by the latter. That after a long
period of time she became familiar with the signature of the deceased. She testified that
the signature appearing in the holographic will is the true and genuine signature of Matilde
Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as follows:

WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having

being well taken, same is granted, and the petition for probate of the document (Exhibit
S) on the purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied
for insufficiency of evidence and lack of merits.[7]
On December 12, 1990, respondents filed a notice of appeal, [8] and in support of their
appeal, the respondents once again reiterated the testimony of the following witnesses,
namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita
Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an
account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the
special proceedings for the probate of the holographic will of the deceased was filed. He
produced and identified the. records of the case. The documents presented bear the
signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the
basis for comparison of the handwriting of the testatrix, with the writing treated or
admitted as genuine by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produce
and identify the voters affidavit of the decedent. However, the voters affidavit was not
produced for the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matildes husband, the latter lived with
her in her parents house for eleven (11) years, from 1958 to 1969. During those eleven
(11) years of close association with the deceased, she acquired familiarity with her
signature and handwriting as she used to accompany her (deceased Matilde Seo Vda. de
Ramonal) in collecting rentals from her various tenants of commercial buildings, and the
deceased always issued receipts. In addition to this, she (witness Matilde Binanay)
assisted the deceased in posting the records of the accounts, and carried personal letters
of the deceased to her creditors.

Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelrys shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd)Matilde Vda de Ramonal

August 30, 1978

in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to.

4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

(Sgd) Matilde Vda de Ramonal
"August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R.
Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978

As can be seen, the law foresees the possibility that no qualified witness may be found (or
what amounts to the same thing, that no competent witness may be willing to testify to
the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if
the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino v.
Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be considered
mandatory only in case of ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law essential to their validity
(Art. 805). Where the will is holographic, no witness need be present (art.10),
and the rule requiring production of three witnesses must be deemed merely
permissive if absurd results are to be avoided.

6. Bury me where my husband Justo is ever buried.

(Sgd) Matilde Vda de Ramonal
"August 30,1978
Gene and Manuel:
"Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision [9] ruling that the appeal
was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102,
penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of
Appeals held:
x x x even if the genuineness of the holographic will were contested, we are of
the opinion that Article 811 of our present civil code can not be interpreted as to require
the compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of having the probate denied. Since no witness may have been present at
the execution of the holographic will, none being required by law (art. 810, new civil code),
it becomes obvious that the existence of witnesses possessing the requisite qualifications
is a matter beyond the control of the proponent. For it is not merely a question of finding
and producing any three witnesses; they must be witnesses who know the handwriting
and signature of the testator and who can declare (truthfully, of course, even if the law
does not express) that the will and the signature are in the handwriting of the testator.
There may be no available witness acquainted with the testators hand; or even if so
familiarized, the witness may be unwilling to give a positive opinion. Compliance with the
rule of paragraph 1 of article 811 may thus become an impossibility. That is evidently the
reason why the second paragraph of article 811 prescribes that

Again, under Art.811, the resort to expert evidence is conditioned by the words if the
court deem it necessary, which reveal that what the law deems essential is that the court
should be convinced of the wills authenticity. Where the prescribed number of witnesses
is produced and the court is convinced by their testimony that the will is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the court may still, and in
fact it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
the having the probate denied. No witness need be present in the execution of the
holographic will. And the rule requiring the production of three witnesses is
merely permissive. What the law deems essential is that the court is convinced of the
authenticity of the will. Its duty is to exhaust all available lines of inquiry, for the state is
as much interested in the proponent that the true intention of the testator be carried into
effect. And because the law leaves it to the trial court to decide if experts are still needed,
no unfavorable inference can be drawn from a partys failure to offer expert evidence, until
and unless the court expresses dissatisfaction with the testimony of the lay witnesses. [10]
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and
other witnesses definitely and in no uncertain terms testified that the handwriting and
signature in the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the
holographic will and the handwriting and signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102,
relied upon by the respondent Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to prove that the
date, text, and signature on the holographic will were written entirely in the
hand of the testatrix.

Q.

Showing to you the receipt dated 23 October 1979, is this the one you are
referring to as one of the receipts which she issued to them?

A.

Yes, sir.

(3) Whether or not the Court of Appeals erred in not analyzing the signatures in
the holographic will of Matilde Seo Vda. de Ramonal.

Q.

Now there is that signature of Matilde vda. De Ramonal, whose signature

is that Mrs. Binanay?

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil
Code are permissive or mandatory. The article provides, as a requirement for the probate
of a contested holographic will, that at least three witnesses explicitly declare that the
signature in the will is the genuine signature of the testator.

A.

Matilde vda. De Ramonal.

Q.

Why do you say that that is a signature of Matilde vda. De Ramonal?

A.

I am familiar with her signature.

We are convinced, based on the language used, that Article 811 of the Civil Code is
mandatory. The word shall connotes a mandatory order. We have ruled that shall in a
statute commonly denotes an imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word shall, when used in a statute is
mandatory.[11]

Q.

Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal
kept records of the accounts of her tenants?

A.

Yes, sir.

Q.

Why do you say so?

A.

Because we sometimes post a record of accounts in behalf of Matilde Vda. De

Ramonal.

Q.

How is this record of accounts made? How is this reflected?

A.

In handwritten.[14]

Laws are enacted to achieve a goal intended and to guide against an evil or mischief
that aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes
of the deceased and the evil to be prevented is the possibility that unscrupulous individuals
who for their benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to
determine the true intent of the deceased. An exhaustive and objective consideration of
the evidence is imperative to establish the true intent of the testator.

xxx

It will be noted that not all the witnesses presented by the respondents testified
explicitly that they were familiar with the handwriting of the testator. In the case of
Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely identified
the record of Special Proceedings No. 427 before said court. He was not presented to
declare explicitly that the signature appearing in the holographic was that of the deceased.

Q.

In addition to collection of rentals, posting records of accounts of tenants and deed

of sale which you said what else did you do to acquire familiarity of the signature
of Matilde Vda De Ramonal?

A.

Posting records.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to
identify the signature of the deceased in the voters affidavit, which was not even produced
as it was no longer available.

Q.

Aside from that?

A.

Carrying letters.

Q.

Letters of whom?

A.

Matilde

Q.

To whom?

A.

To her creditors.[15]

Matilde Ramonal Binanay, on the other hand, testified that:

Q.

And you said for eleven (11) years Matilde Vda de Ramonal resided with your
parents at Pinikitan, Cagayan de Oro City. Would you tell the court what was your
occupation or how did Matilde Vda de Ramonal keep herself busy that time?

A.

Collecting rentals.

Q.

From where?

A.

From the land rentals and commercial buildings at Pabayo-Gomez streets. [12]
xxx

xxx
Q.

You testified that at the time of her death she left a will. I am showing to you a
document with its title tugon is this the document you are referring to?

A.

Yes, sir.

Q.

Showing to you this exhibit S, there is that handwritten tugon, whose

handwriting is this?

Q.

Who sometime accompany her?

A.

I sometimes accompany her

Q.

In collecting rentals does she issue receipts?

A.

My aunt.

A.

Yes, sir.[13]

Q.

Why do you say this is the handwriting of your aunt?

A.

Because I am familiar with her signature. [16]

xxx

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which
she either mailed or gave to her tenants. She did not declare that she saw the deceased
sign a document or write a note.

A.

Further, during the cross-examination, the counsel for petitioners elicited the fact that
the will was not found in the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:

Q.

Now, let us go to the third signature of Matilde Ramonal. Do you know that there
are retracings in the word Vda.?

A.

Yes, a little. The letter L is continuous.

Q.

And also in Matilde the letter L is continued to letter D?

A.

Yes, sir.

Q.

Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is
continued towards letter D.

A.

Yes, sir.

Q.

And there is a retracing in the word Vda.?

A.

Yes, sir.[20]

Q.

Mrs. Binanay, when you were asked by counsel for the petitioners if the late
Matilde Seno vda de Ramonal left a will you said, yes?

A.

Yes, sir.

Q.

Who was in possession of that will?

A.

I.

Q.

Since when did you have the possession of the will?

A.

It was in my mothers possession.

Q.

So, it was not in your possession?

A.

Sorry, yes.

Q.

And when did you come into possession since as you said this was originally in the
possession of your mother?

A.

1985.[17]
xxx

Yes, sir.[19]
xxx

xxx
Q.

Now, that was 1979, remember one year after the alleged holographic will. Now,
you identified a document marked as Exhibit R. This is dated January 8,1978
which is only about eight months from August 30,1978. Do you notice that the
signature Matilde Vda de Ramonal is beautifully written and legible?

A.

Yes, sir the handwriting shows that she was very exhausted.

Q.

You just say that she was very exhausted while that in 1978 she was healthy was
not sickly and she was agile. Now, you said she was exhausted?

A.

In writing.

Q.

How did you know that she was exhausted when you were not present and you
just tried to explain yourself out because of the apparent inconsistencies?

Q.

Now, Mrs. Binanay was there any particular reason why your mother left that will
to you and therefore you have that in your possession?

A.

It was not given to me by my mother, I took that in the aparador when she died.

Q.

After taking that document you kept it with you?

A.

I presented it to the fiscal.

A.

That was I think. (sic)

Q.

For what purpose?

Q.

A.

Just to seek advice.

Q.

Advice of what?

Now, you already observed this signature dated 1978, the same year as the
alleged holographic will. In exhibit I, you will notice that there is no retracing;
there is no hesitancy and the signature was written on a fluid movement. x x x
And in fact , the name Eufemia R. Patigas here refers to one of the petitioners?

A.

About the will. [18]

A.

Yes, sir.

Q.

You will also notice Mrs. Binanay that it is not only with the questioned signature
appearing in the alleged holographic will marked as Exhibit X but in the
handwriting themselves, here you will notice the hesitancy and tremors, do you
notice that?

A.

Yes, sir.[21]

In her testimony it was also evident that Ms. Binanay kept the fact about the will
from petitioners, the legally adopted children of the deceased. Such actions put in issue
her motive of keeping the will a secret to petitioners and revealing it only after the death
of Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q.

Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that
correct?

A.

Yes, sir.

Q.

She was up and about and was still uprightly and she could walk agilely and she
could go to her building to collect rentals, is that correct?

Evangeline Calugay declared that the holographic will was written, dated and signed
in the handwriting of the testator. She testified that:
Q.

You testified that you stayed with the house of the spouses Matilde and Justo
Ramonal for the period of 22 years. Could you tell the court the services if any
which you rendered to Matilde Ramonal?

A.

During my stay I used to go with her to the church, to the market and then to her
transactions.

Q.

When you said assisted, you acted as her counsel? Any sort of counsel as in what
case is that, Fiscal?

Q.

What else? What services that you rendered?

A.

A.

After my college days I assisted her in going to the bank, paying taxes and to her
lawyer.

It is about the project partition to terminate the property, which was under the
court before.[26]

Q.

What was your purpose of going to her lawyer?

A.

I used to be her personal driver.

Q.

In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal?

A.

Yes, sir.

Q.

How come that you acquired familiarity?

A.

Because I lived with her since birth.[22]

xxx

Q.

Now, I am showing to you Exhibit S which is captioned tugon dated Agosto 30,
1978 there is a signature here below item No. 1, will you tell this court whose
signature is this?

A.

Yes, sir, that is her signature.

Q.

Why do you say that is her signature?

A.

I am familiar with her signature.

xxx
Q.

Appearing in special proceeding no. 427 is the amended inventory which is marked
as exhibit N of the estate of Justo Ramonal and there appears a signature over
the type written word Matilde vda de Ramonal, whose signature is this?

A.

That is the signature of Matilde Vda de Ramonal.

Q.

Also in exhibit n-3, whose signature is this?

A.

This one here that is the signature of Mrs. Matilde vda de Ramonal. [27]
xxx

Q.

Aside from attending as counsel in that Special Proceeding Case No. 427 what
were the other assistance wherein you were rendering professional service to the
deceased Matilde Vda de Ramonal?

A.

I can not remember if I have assisted her in other matters but if there are
documents to show that I have assisted then I can recall. [28]
xxx

Q.

Now, I am showing to you exhibit S which is titled tugon, kindly go over this
document, Fiscal Waga and tell the court whether you are familiar with the
handwriting contained in that document marked as exhibit S?

A.

I am not familiar with the handwriting.

Q.

This one, Matilde Vda de Ramonal, whose signature is this?

A.

I think this signature here it seems to be the signature of Mrs. Matilde vda de
Ramonal.

Q.

Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you
tell the court whose signature is this?

A.

Well, that is similar to that signature appearing in the project of partition.

Q.

Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the
court whose signature is that?

A.

As I said, this signature also seems to be the signature of Matilde vda de Ramonal.

Q.

Why do you say that?

A.

Because there is a similarity in the way it is being written.

Q.

How about this signature in item no. 4, can you tell the court whose signature is
this?

A.

The same is true with the signature in item no. 4. It seems that they are similar.[29]

[23]

So, the only reason that Evangeline can give as to why she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q.

Do you know Matilde Vda de Ramonal?

A.

Yes, sir I know her because she is my godmother the husband is my

godfather. Actually I am related to the husband by consanguinity.

Q.

Can you tell the name of the husband?

A.

The late husband is Justo Ramonal.[24]

xxx

Q.

Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal
have legitimate children?

A.

As far as I know they have no legitimate children. [25]

xxx

Q.

You said after becoming a lawyer you practice your profession? Where?

A.

Here in Cagayan de Oro City.

Q.

Do you have services rendered with the deceased Matilde vda de Ramonal?

A.

I assisted her in terminating the partition, of properties.

xxx

Q.

Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de
Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de
Ramonal?

No costs.

A.

Yes, it is similar to the project of partition.

Davide Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

Q.

So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her signature
because it is similar to the signature of the project of partition which you
have made?

Republic of the Philippines

SUPREME COURT
Manila

A.

That is true.[30]

FIRST DIVISION

From the testimonies of these witnesses, the Court of Appeals allowed the will to
probate and disregard the requirement of three witnesses in case of contested holographic
will, citing the decision in Azaola vs. Singson, [31] ruling that the requirement is merely
directory and not mandatory.
In the case of Ajero vs. Court of Appeals, [32] we said that the object of the
solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of the right to
make a will.

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.

However, we cannot eliminate the possibility of a false document being adjudged as

the will of the testator, which is why if the holographic will is contested, that law requires
three witnesses to declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of Ms.
Binanay, she revealed that the will was in her possession as early as 1985, or five years
before the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting
of the deceased with other documents signed and executed by her during her
lifetime. The only chance at comparison was during the cross-examination of Ms. Binanay
when the lawyer of petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic will and she is not a
handwriting expert. Even the former lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different
when compared with other documents written by the testator. The signature of the
testator in some of the disposition is not readable. There were uneven strokes, retracing
and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978, [33] and the
signatures in several documents such as the application letter for pasture permit dated
December 30, 1980,[34] and a letter dated June 16, 1978, [35] the strokes are different. In
the letters, there are continuous flows of the strokes, evidencing that there is no hesitation
in writing unlike that of the holographic will. We, therefore, cannot be certain that the
holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are
ordered remanded to the court of origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.

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."
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.

Ordinarily, when a number of erasures, corrections, and interlineations made by the

testator in a holographic Will litem not been noted under his signature, ... the Will is not
thereby invalidated as a whole, but at most only as respects the particular words erased,
corrected or interlined.1 Manresa gave an Identical commentary when he said "la omision
de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but which
alteration did not carry the requisite of full authentication by the full signature of the
testator, the effect must be that the entire Will is voided or revoked for the simple reason
that nothing remains in the Will after that which could remain valid. To state that the Will
as first written should be given efficacy is to disregard the seeming change of mind of the
testatrix. But that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations,
erasures or alterations in a holographic Will, which affect only the efficacy of the altered
words themselves but not the essence and validity of the Will itself. As it is, with the
erasures, cancellations and alterations made by the testatrix herein, her real intention
cannot be determined with certitude. As Manresa had stated in his commentary on Article
688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived:
... 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
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).
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
extendido 3(Emphasis ours).
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.

BAUTISTA ANGELO, J.:

Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate
the last will and testament of the deceased Mariano Molo y Legaspi executed on August 17,
1918. The oppositors-appellants brought the case on appeal to this Court for the reason
that the value of the properties involved exceeds P50,000.

Relova, J., took no part.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of
Rizal, without leaving any forced heir either in the descending or ascending line. He was
survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his
nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed
Molo, who were the legitimate children of Candido Molo y Legaspi, deceased brother of the
testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit
A) and another executed on June 20, 1939. (Exhibit I). The later will executed in 1918.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the
trial court's factual finding that the peculiar alterations in the holographic will crossing out
Rosa's name and instead inserting her brother Gregorio's name as sole heir and "sole
executrix" were made by the testatrix in her own handwriting. (I find it peculiar that the
testatrix who was obviously an educated person would unthinkingly make such crude
alterations instead of consulting her lawyer and writing an entirely new holographic wig in
order to avoid any doubts as to her change of heir. It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as
sole heir is not even initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is
initialed.) Probate of the radically altered will replacing Gregorio for Rosa as sole heir is
properly denied, since the same was not duly authenticated by the full signature of the
executrix as mandatorily required by Article 814 of the Civil Code. The original unaltered
will naming Rosa as sole heir cannot, however, be given effect in view of the trial court's
factual finding that the testatrix had by her own handwriting substituted Gregorio for Rosa,
so that there is no longer any will naming Rosa as sole heir. The net result is that the
testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to her
intestate estate.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2538

September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal
a petition, which was docketed as special proceeding No. 8022 seeking the probate of the
will executed by the deceased on June 20, 1939. There being no opposition, the will was
probated. However, upon petition filed by the herein oppositors, the order of the court
admitting the will to probate was set aside and the case was reopened. After hearing, at
which both parties presented their evidence, the court rendered decision denying the
probate of said will on the ground that the petitioner failed to prove that the same was
executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on February
24, 1944, filed another petition for the probate of the will executed by the deceased on
August 17, 1918, which was docketed as special proceeding No. 56, in the same court.
Again, the same oppositors filed an opposition to the petition based on three grounds: (1)
that petitioner is now estopped from seeking the probate of the will of 1918; (2) that said
will has not been executed in the manner required by law and (3) that the will has been
subsequently revoked. But before the second petition could be heard, the battle for
liberation came and the records of the case were destroyed. Consequently, a petition for
reconstitution was filed, but the same was found to be impossible because neither
petitioner nor oppositors could produce the copies required for its reconstitution. As a
result, petitioner filed a new petition on September 14, 1946, similar to the one destroyed,
to which the oppositors filed an opposition based on the same grounds as those contained
in their former opposition. Then, the case was set for trial, and on May 28, 1948, the court
issued an order admitting the will to probate already stated in the early part of this
decision. From this order the oppositors appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner voluntarily
and deliberately frustrated the probate of the will dated June 20, 1939, in special
proceeding No. 8022, in order to enable her to obtain the probate of another
alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped from
seeking the probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to court
with "unclean hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of August 17,
1918 was not executed in the manner required by law.

V. The probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself.

an extensive memorandum wherein they reiterated their view that the will should be
denied probate. And on the strenght of this opposition, the court disallowed the will.

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently
revoked by the decedent's will of 1939.

If petitioner then knew that the 1939 will was inherently defective and would make the
testamentary disposition in her favor invalid and ineffective, because it is a "disposicion
captatoria", which knowledge she may easily acquire through consultation with a lawyer,
there was no need her to go through the order of filing the petition for the probate of the
will. She could accomplish her desire by merely suppressing the will or tearing or
destroying it, and then take steps leading to the probate of the will executed in 1918. But
for her conscience was clear and bade her to take the only proper step possible under the
circumstances, which is to institute the necessary proceedings for the probate of the 1939
will. This she did and the will was admitted to probate. But then the unexpected happened.
Over her vigorous opposition, the herein appellants filed a petition for reopening, and over
her vigorous objection, the same was granted and the case was reopened. Her motion for
reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that
the order admitting the will to probate was set aside? That was a contingency which
petitioner never expected. Had appellants not filed their opposition to the probate of the
will and had they limited their objection to the intrinsic validity of said will, their plan to
defeat the will and secure the intestacy of the deceased would have perhaps been
accomplished. But they failed in their strategy. If said will was denied probate it is due to
their own effort. It is now unfair to impute bad faith petitioner simply because she exerted
every effort to protect her own interest and prevent the intestacy of the deceased to
happen.

In their first assignment of error, counsel for oppositors contend that the probate court
erred in not holding that the petitioner voluntarily and deliberately frustrated the probate
of the will dated June 20, 1939, in order to enable her to obtain the probate of the will
executed by the deceased on August 17, 1918, pointing out certain facts and
circumstances with their opinion indicate that petitioner connived with the witness Canuto
Perez in an effort to defeat and frustrate the probate of the 1939 will because of her
knowledge that said will intrinsically defective in that "the one and only testamentory
disposition thereof was a "disposicion captatoria". These circumstances, counsel for the
appellants contend, constitute a series of steps deliberately taken by petitioner with a view
to insuring the realization of her plan of securing the probate of the 1918 will which she
believed would better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with special
proceedings No. 8022, now closed and terminated, are vigorously met by counsel for
petitioner who contends that to raise them in these proceedings which are entirely new
and distinct and completely independent from the other is improper and unfair as they find
no support whatsoever in any evidence submitted by the parties in this case. They are
merely based on the presumptions and conjectures not supported by any proof. For this
reason, counsel, contends, the lower court was justified in disregarding them and in
passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this
contention. There is indeed no evidence which may justify the insinuation that petitioner
had deliberately intended to frustrate the probate of the 1939 will of the deceased to
enable her to seek the probate of another will other than a mere conjecture drawn from
the apparently unexpected testimony of Canuto Perez that he went out of the room to
answer an urgent call of nature when Artemio Reyes was signing the will and the failure of
petitioner later to impeach the character of said witness in spite of the opportunity given
her by the court to do so. Apart from this insufficiency of evidence, the record discloses
that this failure has been explained by petitioner when she informed the court that she was
unable to impeach the character of her witness Canuto Perez because of her inability to
find witnesses who may impeach him, and this explanation stands uncontradicted.
Whether this explanation is satisfactory or not, it is not now, for us to determine. It is an
incident that comes within the province of the former case. The failure of petitioner to
present the testimony of Artemio Reyes at the hearing has also been explained, and it
appears that petitioner has filed because his whereabouts could not be found. Whether this
is true or not is also for this Court to determine. It is likewise within the province and
function of the court in the former case. And the unfairness of this imputation becomes
more glaring when we stock of the developments that had taken place in these
proceedings which show in bold relief the true nature of the conduct, behavior and
character of the petitioner so bitterly assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20,
1939, was filed on February 7, 1941, by the petitioner. There being no opposition, the will
was probated. Subsequently, however, upon petition of the herein oppositors, the order of
the court admitting said will to probate was set aside, over the vigorous opposition of the
herein petitioner, and the case was reopened. The reopening was ordered because of the
strong opposition of the oppositors who contended that he will had not been executed as
required by law. After the evidence of both parties had been presented, the oppositors filed

Having reached the foregoing conclusions, it is obvious that the court did not commit the
second and third errors imputed to it by the counsel for appellants. Indeed, petitioner
cannot be considered guilty or estoppel which would prevent her from seeking the probate
of the 1918 will simply because of her effort to obtain the allowance of the 1939 will has
failed considering that in both the 1918 and 1939 wills she was in by her husband as his
universal heir. Nor can she be charged with bad faith far having done so because of her
desire to prevent the intestacy of her husband. She cannot be blamed being zealous in
protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will of
the deceased which was denied probate. They contend that, notwithstanding the
disallowance of said will, the revocatory clause is valid and still has the effect of nullifying
the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case
of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are
on all fours with the facts of this case. Hence, the doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson
case we are indeed impressed by their striking similarity with the facts of this case. We do
not need to recite here what those facts are; it is enough to point out that they contain
many points and circumstances in common. No reason, therefore, is seen by the doctrine
laid down in that case (which we quote hereunder) should not apply and control the
present case.
A subsequent will, containing a clause revoking a previous will, having been
disallowed, for the reason that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure as to the making of wills,
cannot produce the effect of annulling the previous will, inasmuch as said
revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not
disagree with the soundness of the ruling laid down in the Samson case, there is reason to
abandon said ruling because it is archaic or antiquated and runs counter to the modern
trend prevailing in American jurisprudence. They maintain that said ruling is no longer
controlling but merely represents the point of view of the minority and should, therefore,
be abandoned, more so if we consider the fact that section 623 of our Code of Civil
Procedure, which governs the revocation of wills, is of American origin and as such should
follow the prevailing trend of the majority view in the United States. A long line of
authorities is cited in support of this contention. And these authorities hold the view, that
"an express revocation is immediately effective upon the execution of the subsequent will,
and does not require that it first undergo the formality of a probate proceeding". (p. 63,
appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors,
and that view appears to be in controlling the states where the decisions had been
promulgated, however, we are reluctant to fall in line with the assertion that is now the
prevailing view in the United States. In the search we have made of American authorities
on the subject, we found ourselves in a pool of conflicting opinions perhaps because of the
peculiar provisions contained in the statutes adopted by each State in the subject of
revocation of wills. But the impression we gathered from a review and the study of the
pertinent authorities is that the doctrine laid down in the Samson case is still a good law.
On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948,
we found the following passages which in our opinion truly reflect the present trend of
American jurisprudence on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily,
statutes which permit the revocation of a will by another writing provide that to
be effective as a revocation, the writing must be executed with the same
formalities which are required to be observed in the execution of a will.
Accordingly, where, under the statutes, attestation is necessary to the making of
a valid will, an unattested non testamentary writing is not effective to revoke a
prior will. It has been held that a writing fails as a revoking instrument where it is
not executed with the formalities requisite for the execution of a will, even though
it is inscribed on the will itself, although it may effect a revocation by cancellation
or obliteration of the words of the will. A testator cannot reserve to himself the
power to modify a will by a written instrument subsequently prepared but not
executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will
which is invalid because of the incapacity of the testator, or of undue influence
can have no effect whatever as a revoking will. Moreover, a will is not revoked by
the unexecuted draft of a later one. Nor is a will revoked by a defectively
executed will or codicil, even though the latter contains a clause expressly
revoking the former will, in a jurisdiction where it is provided by a controlling
statute that no writing other than a testamentary instrument is sufficient to
revoke a will, for the simple reason that there is no revoking will. Similarly where
the statute provides that a will may be revoked by a subsequent will or other
writing executed with the same formalities as are required in the execution of
wills, a defectively executed will does not revoke a prior will, since it cannot be
said that there is a writing which complies with the statute. Moreover, a will or
codicil which, on account of the manner in which it is executed, is sufficient to
pass only personally does not affect dispositions of real estate made by a former
will, even though it may expressly purport to do so. The intent of the testator to
revoke is immaterial, if he has not complied with the statute. (57 Am. Jur., 328,
329.)

We find the same opinion in the American Law Reports, Annotated, edited in 1939. On
page 1400, Volume 123, there appear many authorities on the "application of rules where
second will is invalid", among which a typical one is the following:
It is universally agreed that where the second will is invalid on account of not
being executed in accordance with the provisions of the statute, or where the
testator who has not sufficient mental capacity to make a will or the will is
procured through undue influence, or the such, in other words, where the second
will is really no will, it does not revoke the first will or affect it in any manner. Mort
vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the
Samson case is predicated. They reflect the opinion that this ruling is sound and good and
for this reason, we see no justification for abondoning it as now suggested by counsel for
the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will
may be some will, codicil, or other writing executed as proved in case of wills" but it
cannot be said that the 1939 will should be regarded, not as a will within the meaning of
said word, but as "other writing executed as provided in the case of wills", simply because
it was denied probate. And even if it be regarded as any other writing within the meaning
of said clause, there is authority for holding that unless said writing is admitted to probate,
it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause, said will
of 1918 cannot still be given effect because of the presumption that it was deliberately
revoked by the testator himself. The oppositors contend that the testator, after executing
the 1939 will, and with full knowledge of the recovatory clause contained said will, himself
deliberately destroyed the original of the 1918 will, and for that reason the will submitted
by petitioner for probate in these proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately destroyed
the original of the 1918 will because of his knowledge of the revocatory clause contained in
the will he executed in 1939. The only evidence we have is that when the first will was
executed in 1918, Juan Salcedo, who prepared it, gave the original and copies to the
testator himself and apparently they remained in his possession until he executed his
second will in 1939. And when the 1939 will was denied probate on November 29, 1943,
and petitioner was asked by her attorney to look for another will, she found the duplicate
copy (Exhibit A) among the papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his
knowledge of the revocatory clause of the 1939 will, and it is true that he gave a duplicate
copy thereof to his wife, the herein petitioner, the most logical step for the testator to take
is to recall said duplicate copy in order that it may likewise be destroyed. But this was not
done as shown by the fact that said duplicate copy remained in the possession of
petitioner. It is possible that because of the long lapse of twenty-one (21) years since the
first will was executed, the original of the will had been misplaced or lost, and forgetting
that there was a copy, the testator deemed it wise to execute another will containing
exactly the same testamentary dispositions. Whatever may be the conclusion we may draw
from this chain of circumstances, the stubborn fact is that there is no direct evidence of
voluntary or deliberate destruction of the first will by the testator. This matter cannot be
inference or conjectur.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the
testator after the execution of the second will, which revoked the first, could there be any
doubt, under this theory, that said earlier will was destroyed by the testator in the honest
belief that it was no longer necessary because he had expressly revoked it in his will of
1939? In other words, can we not say that the destruction of the earlier will was but the
necessary consequence of the testator's belief that the revocatory clause contained in the
subsequent will was valid and the latter would be given effect? If such is the case, then it
is our opinion that the earlier will can still be admitted to probate under the principle of
"dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and is usually
applied where the testator cancels or destroys a will or executes an instrument
intended to revoke a will with a present intention to make a new testamentary
disposition as a substitute for the old, and the new disposition is not made or, if
made, fails of effect for same reason. The doctrine is n limited to the existence of
some other document, however, and has been applied where a will was destroyed
as a consequence of a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the
making of another will so as fairly to raise the inference that the testator meant
the revocation of the old to depend upon the efficacy of a new disposition
intended to be substituted, the revocation will be conditional and dependent upon
the efficacy of the new disposition; and if, for any reason, the new will intended to
be made as a substitute is inoperative, the revocation fails and the original will
remains in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a new
testamentary disposition upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive conditions, and hence prevents
the revocation of the original will. But a mere intent to make at some time a will
in the place of that destroyed will not render the destruction conditional. It must
appear that the revocation is dependent upon the valid execution of a new will. (1
Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the original will by
the testator could be presumed from the failure of the petitioner to produce it in court,
such destruction cannot have the effect of defeating the prior will of 1918 because of the
fact that it is founded on the mistaken belief that the will of 1939 has been validly
executed and would be given due effect. The theory on which this principle is predicated is
that the testator did not intend to die intestate. And this intention is clearly manifest when
he executed two wills on two different occasion and instituted his wife as his universal heir.
There can therefore be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to prove
the due execution of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo Morales,
Rufino Enriquez, and Angel Cuenca. The first two witnesses died before the
commencement of the present proceedings. So the only instrumental witness available was
Angel Cuenca and under our law and precedents, his testimony is sufficient to prove the
due execution of the will. However, petitioner presented not only the testimony of Cuenca
but placed on the witness stand Juan Salcedo, the notary public who prepared and
notarized the will upon the express desire and instruction of the testator, The testimony of
these witnesses shows that the will had been executed in the manner required by law. We

have read their testimony and we were impressed by their readiness and sincerity. We are
convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the
appellants.1wphl.nt
Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG,
CARMELITA JUGO,respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent
Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by
the resolution dated August 10, 1982, declaring as null and void the devise in favor of the
petitioner and the resolution dated December 28, 1982 denying petitioner's motion for
reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly
signed by him at the end of the Will on page three and on the left margin of pages 1, 2
and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano,
who in turn, affixed their signatures below the attestation clause and on the left margin of
pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the
Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal by the
testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno
as his sole and only executor of his estate. It is clearly stated in the Will that the testator
was legally married to a certain Rufina Gomez by whom he had two legitimate children,
Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife
and had been living with petitioner as husband and wife. In fact, on December 5, 1952,
the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in
Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs,
namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate
and the free portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my
aforementioned legal wife, Rufina Gomez, and our son, Oscar, and

daughter Carmelita, both surnamed Jugo, whom I declare and admit to

be legally and properly entitled to inherit from me; that while I have
been estranged from my above-named wife for so many years, I cannot
deny that I was legally married to her or that we have been separated up
to the present for reasons and justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one
Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love
and affection, for all the things which she has done for me, now and in
the past; that while Sofia J. Nepomuceno has with my full knowledge and
consent, did comport and represent myself as her own husband, in truth
and in fact, as well as in the eyes of the law, I could not bind her to me
in the holy bonds of matrimony because of my aforementioned previous
marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and
Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch
XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an
opposition alleging inter alia that the execution of the Will was procured by undue and
improper influence on the part of the petitioner; that at the time of the execution of the
Will, the testator was already very sick and that petitioner having admitted her living in
concubinage with the testator, she is wanting in integrity and thus, letters testamentary
should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as
the testator admitted in his Will to cohabiting with the petitioner from December 1952 until
his death on July 16, 1974, the Will's admission to probate will be an Idle exercise because
on the face of the Will, the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First Instance
of Rizal denying the probate of the will. The respondent court declared the Will to be valid
except that the devise in favor of the petitioner is null and void pursuant to Article 739 in
relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion of the
decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question
declared valid except the devise in favor of the appellant which is
declared null and void. The properties so devised are instead passed on
in intestacy to the appellant in equal shares, without pronouncement as
to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction
of Clerical Error" praying that the word "appellant" in the last sentence of the dispositive
portion of the decision be changed to "appellees" so as to read: "The properties so devised
are instead passed on intestacy to the appellees in equal shares, without pronouncement
as to costs." The motion was granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by
the respondent court in a resolution dated December 28, 1982.

The main issue raised by the petitioner is whether or not the respondent court acted in
excess of its jurisdiction when after declaring the last Will and Testament of the deceased
Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary
provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot
be passed upon and decided in the probate proceedings but in some other proceedings
because the only purpose of the probate of a Will is to establish conclusively as against
everyone that a Will was executed with the formalities required by law and that the
testator has the mental capacity to execute the same. The petitioner further contends that
even if the provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were
applicable, the declaration of its nullity could only be made by the proper court in a
separate action brought by the legal wife for the specific purpose of obtaining a declaration
of the nullity of the testamentary provision in the Will in favor of the person with whom the
testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament
itself expressly admits indubitably on its face the meretricious relationship between the
testator and the petitioner and the fact that petitioner herself initiated the presentation of
evidence on her alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence, merits the application of the doctrine
enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon.
Antonio Martinez, et al.(G.R. No. L- 39247, June 27, 1975). Respondents also submit that
the admission of the testator of the illicit relationship between him and the petitioner put in
issue the legality of the devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be validly
drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in
favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will. The rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles
all questions concerning capacity of the testator and the proper
execution and witnessing of his last Will and testament, irrespective of
whether
its
provisions
are
valid
and
enforceable
or
otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's area of
inquiry is limited to the extrinsic validity thereof. The testators
testamentary capacity and the compliance with the formal requisites or
solemnities prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into the intrinsic validity or efficacy of
the provisions of the will or the legality of any devise or legacy is
premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition
for probate. Probate is one thing; the validity of the testamentary

provisions is another. The first decides the execution of the document

and the testamentary capacity of the testator; the second relates to
descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the facts
that a will was executed with the formalities required by law and that the
testator was in a condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will. (Sec. 625).
The judgment in such proceedings determines and can determine
nothing more. In them the court has no power to pass upon the validity
of any provisions made in the will. It can not decide, for example, that a
certain legacy is void and another one valid. ... (Castaneda v.
Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the
petitioner as universal heir and completely preterited her surviving forced heirs. A will of
this nature, no matter how valid it may appear extrinsically, would be null and void.
Separate or latter proceedings to determine the intrinsic validity of the testamentary
provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v.
Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:

the question of whether or not the probate court correctly denied the probate of Martin
Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex
A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals'
decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the record, in the
event of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue of the intrinsic
validity or nullity of the will. Result, waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question. (Section 2, Rule 1, Rules of Court.
Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a
justiciable controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision to the
proper court in a separate action for that purpose simply because, in the probate of a will,
the court does not ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:

The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal
validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the
will, which are of dubious legality, and because of the motion to withdraw
the petition for probate (which the lower court assumed to have been
filed with the petitioner's authorization) the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal validity
had been established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issue
(Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang
vs. Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v.
Udan L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will.
Both parties are agreed that the Will of Martin Jugo was executed with all the formalities
required by law and that the testator had the mental capacity to execute his Will. The
petitioner states that she completely agrees with the respondent court when in resolving

The following donations shall be void:

(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may
be brought by the spouse of the donor or donee; and the guilt of the
donor and donee may be proved by preponderance of evidence in the
same action.
Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter

vivos shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before
the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez
was his legal wife from whom he had been estranged "for so many years." He also
declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In
Article IV, he stated that he had been living as man and wife with the petitioner since
1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He
stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as
well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony
because of my aforementioned previous marriage.
There is no question from the records about the fact of a prior existing marriage when
Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo
lived together in an ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno
contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was then
51 years old while the woman was 48. Nepomuceno now contends that she acted in good
faith for 22 years in the belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:
First. The last will and testament itself expressly admits indubitably on
its face the meretricious relationship between the testator and petitioner,
the devisee.
Second. Petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the
legacy given in the will to petitioner by the deceased testator at the start
of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he
had lived with as man and wife, as already married, was an important
and specific issue brought by the parties before the trial court, and
passed upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it
was petitioner who opted to present evidence on her alleged good faith
in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982,
pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute the
testimony of petitioner on the point.

Sebastian Jugo, younger brother of the deceased testator, testified at

length on the meretricious relationship of his brother and petitioner. (TSN
of August 18,1975).
Clearly, the good faith of petitioner was by option of the parties made a
decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the
question.
When the court a quo held that the testator Martin Jugo and petitioner
'were deemed guilty of adultery or concubinage', it was a finding that
petitioner was not the innocent woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private
respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased
testator in a town in Tarlac where neither she nor the testator ever
resided. If there was nothing to hide from, why the concealment' ? Of
course, it maybe argued that the marriage of the deceased with private
respondent Rufina Gomez was likewise done in secrecy. But it should be
remembered that Rufina Gomez was already in the family way at that
time and it would seem that the parents of Martin Jugo were not in favor
of the marriage so much so that an action in court was brought
concerning the marriage. (Testimony of Sebastian Jugo, TSN of August
18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when
they were still both single. That would be in 1922 as Martin Jugo married
respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner
married the testator only on December 5, 1952. There was a space of
about 30 years in between. During those 30 years, could it be believed
that she did not even wonder why Martin Jugo did not marry her nor
contact her anymore after November, 1923 - facts that should impel her
to ask her groom before she married him in secrecy, especially so when
she was already about 50 years old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by
itself conclusive demonstration that she new that the man she had
openly lived for 22 years as man and wife was a married man with
already two children.
FOURTH: Having admitted that she knew the children of respondent
Rufina Gomez, is it possible that she would not have asked Martin Jugo
whether or not they were his illegitimate or legitimate children and by
whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the
deceased testator, is it possible that she would not have known that the

mother of private respondent Oscar Jugo and Carmelita Jugo was

respondent Rufina Gomez, considering that the houses of the parents of
Martin Jugo (where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11
years before her demise. Petitioner prayed that said will be admitted to probate and that
letters of administration with the will annexed be issued to her.

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They

are, to say the least, inherently improbable, for they are against the
experience in common life and the ordinary instincts and promptings of
human nature that a woman would not bother at all to ask the man she
was going to marry whether or not he was already married to another,
knowing that her groom had children. It would be a story that would
strain human credulity to the limit if petitioner did not know that Martin
Jugo was already a married man in view of the irrefutable fact that it was
precisely his marriage to respondent Rufina Gomez that led petitioner to
break off with the deceased during their younger years.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father
and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her
will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as
universal heir of the deceased, oppositors who are compulsory heirs of the deceased in
the direct ascending line were illegally preterited and that in consequence the institution
is void.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a
donation between persons who are living in adultery or concubinage. It is
the donation which becomes void. The giver cannot give even assuming that the recipient
may receive. The very wordings of the Will invalidate the legacy because the testator
admitted he was disposing the properties to a person with whom he had been living in
concubinage.

On August 29, 1963, before a hearing was had on the petition for probate and objection
thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963,
dismiss.1wph1.t

petitioner

registered

her

opposition

to

the

motion

to

The court's order of November 8, 1963, held that "the will in question is a complete nullity
and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and
dismissed the petition without costs.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of
Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on
appeal.

SO ORDERED.

1. Right at the outset, a procedural aspect has engaged our attention. The case is for the
probate of a will. The court's area of inquiry is limited to an examination of, and
resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's
testamentary capacity, and the compliance with the requisites or solemnities by law
prescribed, are the questions solely to be presented, and to be acted upon, by the court.
Said court at this stage of the proceedings is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or
legacy therein.1

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23445

June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.

A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after the court has declared that the
will has been duly authenticated. 2 But petitioner and oppositors, in the court below and
here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears in
the record, in the event of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue of the intrinsic validity or nullity
of the will. Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet head-on the
issue of the validity of the provisions of the will in question. 3 After all, there exists a
justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below
that the will is a complete nullity. This exacts from us a study of the disputed will and the
applicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a
certain amount of property, do hereby give, devise, and bequeath all of the property which
I may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at
38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November,
nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814
of the Civil Code of Spain of 1889, which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the
testator, shall void the institution of heir; but the legacies and betterments 4 shall
be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a
necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra
siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni
se le deshereda expresamente ni se le asigna parte alguna de los bienes,
resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquellos a quienes por su
muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la
omision sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342,
343, 204 Pa. 484.6

The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A.
2:50 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136
N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect;
to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E.
2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents,
now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both
of them: They thus received nothing by the testament; tacitly, they were deprived of their
legitime; neither were they expressly disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anulara siempre la institucion de heredero, dando
caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of
the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir
nothing more. No specific legacies or bequests are therein provided for. It is in this
posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate.
Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir,
en todo o en parte? No se aade limitacion alguna, como en el articulo 851, en el
que se expresa que se anulara la institucion de heredero en cuanto prejudique a
la legitima del deseheredado Debe, pues, entenderse que la anulacion es
completa o total, y que este articulo como especial en el caso que le motiva rige
con preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la
sucesion intestada total o parcial. Sera total, cuando el testador que comete la
pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia
en favor de los herederos instituidos, cuya institucion se anula, porque asi lo
exige la generalidad del precepto legal del art. 814, al determinar, como efecto de
la pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results
in totally abrogating the will. Because, the nullification of such institution of universal heir
without any other testamentary disposition in the will amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 offers no
leeway for inferential interpretation. Giving it an expansive meaning will tear up by the
roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del
Tribunal Supreme, correspondiente a 1908", which in our opinion expresses the rule of
interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la
institucion de heredero, no consiente interpretacion alguna favorable a la persona
instituida en el sentido antes expuesto aun cuando parezca, y en algun caso
pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho
sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo

tanto procederse sobre tal base o supuesto, y consiguientemente, en un

testamento donde falte la institucion, es obligado llamar a los herederos forzosos
en todo caso, como habria que llamar a los de otra clase, cuando el testador no
hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la
voluntad de quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz, por lo que
constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar
como legatario a un heredero cuya institucion fuese anulada con pretexto de que
esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese,
sera esto razon para modificar la ley, pero no autoriza a una interpretacion
contraria a sus terminos y a los principios que informan la testamentifaccion, pues
no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay
razon para convereste juicio en regla de interpretacion, desvirtuando y anulando
por este procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that the mere institution of a
universal heir in a will void because of preterition would give the heir so instituted a
share in the inheritance. As to him, the will is inexistent. There must be, in addition to
such institution, a testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests)
"pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion
de heredero ... . 13 As Manresa puts it, annulment throws open to intestate succession the
entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de
legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather
than one of preterition". 15From this, petitioner draws the conclusion that Article 854 "does
not apply to the case at bar". This argument fails to appreciate the distinction between
pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his share in the legitime for a
cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la legitima
constituye
la desheredacion. La
privacion
tacita
de
la
misma
se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be
"involuntaria". 19 Express as disinheritance should be, the same must be supported by a
legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply
omits their names altogether. Said will rather than be labeled ineffective disinheritance is
clearly one in which the said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different from
those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall
annul the institution of heir". This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul
the institution of heirs", put only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive language, in commenting on the
rights of the preterited heirs in the case of preterition on the one hand and legal
disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso.23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although the
inheritance of the heir so instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited,viz:
But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made to fall into the concept of
legacies and betterments reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of the institution, would. be
absolutely meaningless and will never have any application at all. And the
remaining provisions contained in said article concerning the reduction of
inofficious legacies or betterments would be a surplusage because they would be
absorbed by Article 817. Thus, instead of construing, we would be destroying
integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general from
a special provision. With reference to article 814, which is the only provision
material to the disposition of this case, it must be observed that the institution of
heirs is therein dealt with as a thing separate and distinct from legacies or
betterments. And they are separate and distinct not only because they are
distinctly and separately treated in said article but because they are in themselves
different. Institution of heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property bequeathed by a particular or
special title. ... But again an institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article
854 of the Civil Code in turn merely nullifies "the institution of heir". Considering, however,
that the will before us solely provides for the institution of petitioner as universal heir, and
nothing more, the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and
Zaldivar, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-55509 April 27, 1984
ETHEL GRIMM ROBERTS, petitioner,
vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila;
MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and LINDA
GRIMM, respondents.
N. J. Quisumbing and Associates for petitioners.
Angara, Abello, Concepcion, Regala and Cruz for respondents.

AQUINO, J.:+.wph!1

Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in
January, 1978 (p. 53, Rollo). In its order dated April 10, 1978, the Third Judicial District
Court admitted to probate the two wills and the codicil It was issued upon consideration of
the stipulation dated April 4, 1978 "by and between the attorneys for Maxine Tate Grimm,
Linda Grimm, Edward Miller Grimm II, E. LaVar Tate, Juanita Kegley Grimm (first wife),
Juanita Grimm Morris and Ethel Grimm Roberts" (Annex C, pp. 48-51, Rollo).
Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as the
first parties, and Ethel, Juanita Grimm Morris and their mother Juanita Kegley Grimm as
the second parties, with knowledge of the intestate proceeding in Manila, entered into
a compromise agreement in Utah regarding the estate. It was signed by David E. Salisbury
and Donald B. Holbrook, as lawyers of the parties, by Pete and Linda and the attorney-infact of Maxine and by the attorney-in-fact of Ethel, Juanita Grimm Morris and Juanita
Kegley Grimm.
In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as
personal representatives (administrators) of Grimm's Philippine estate (par. 2). It was also
stipulated that Maxine's one-half conjugal share in the estate should be reserved for her
and that would not be less than $1,500,000 plus the homes in Utah and Santa Mesa,
Manila (par. 4). The agreement indicated the computation of the "net distributable estate".
It recognized that the estate was liable to pay the fees of the Angara law firm (par. 5).

The question in this case is whether a petition for allowance of wills and to annul a
partition, approved in anintestate proceeding by Branch 20 of the Manila Court of First
Instance, can be entertained by its Branch 38 (after a probate in the Utah district court).

It was stipulated in paragraph 6 that the decedent's four children "shall share equally in
the Net Distributable Estate" and that Ethel and Juanita Morris should each receive at least
12-1/2% of the total of the net distributable estate and marital share. A supplemental
memorandum also dated April 25, 1978 was executed by the parties (Sub-Annex F, pp. 4961, Annex, F-1, pp. 75-76, Testate case).

Antecedents. Edward M. Grimm an American resident of Manila, died at 78 in the Makati

Medical Center on November 27, 1977. He was survived by his second wife, Maxine Tate
Grimm and their two children, named Edward Miller Grimm II (Pete) and Linda Grimm and
by Juanita Grimm Morris and Ethel Grimm Roberts (McFadden), his two children by a first
marriage which ended in divorce (Sub-Annexes A and B. pp. 36-47, Rollo).

Intestate proceeding No. 113024.-At this juncture, it should be stated that forty- three
days after Grimm's death, or January 9, 1978, his daughter of the first marriage, Ethel,
49, through lawyers Deogracias T. Reyes and. Gerardo B. Macaraeg, filed with Branch 20 of
the Manila Court of First Instance intestate proceeding No. 113024for the settlement of his
estate. She was named special administratrix.

He executed on January 23, 1959 two wills in San Francisco, California. One will disposed
of his Philippine estate which he described as conjugal property of himself and his second
wife. The second win disposed of his estate outside the Philippines.

On March 11, the second wife, Maxine, through the Angara law office, filed an opposition
and motion to dismiss the intestate proceeding on the ground of the pendency of Utah of a
proceeding for the probate of Grimm's will. She also moved that she be appointed special
administratrix, She submitted to the court a copy of Grimm's will disposing of his Philippine
estate. It is found in pages 58 to 64 of the record.

In both wills, the second wife and two children were favored. The two children of the first
marriage were given their legitimes in the will disposing of the estate situated in this
country. In the will dealing with his property outside this country, the testator said: t.
hqw
I purposely have made no provision in this will for my daughter, Juanita
Grimm Morris, or my daughter, Elsa Grimm McFadden (Ethel Grimm
Roberts), because I have provided for each of them in a separate will
disposing of my Philippine property. (First clause, pp. 43-47, Rollo).
The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. LaVar
Tate on March 7, 1978 in Probate No. 3720 of the Third Judicial District Court of Tooele
County, Utah. Juanita Grimm Morris of Cupertino, California and Mrs. Roberts of 15 C.
Benitez Street, Horseshoe Village, Quezon City were notified of the probate proceeding
(Sub-Annex C, pp. 48-55, Rollo).

The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new
lawyer, William C. Limqueco (partner of Gerardo B. Macaraeg, p. 78, testate case withdrew
that opposition and motion to dismiss and, at the behest of Maxine, Ethel and Pete,
appointed them joint administrators. Apparently, this was done pursuant to the
aforementioned Utah compromise agreement. The court ignored the will already found in
the record.
The three administrators submitted an inventory. With the authority and approval of the
court, they sold for P75,000 on March 21, 1979 the so-called Palawan Pearl Project, a
business owned by the deceased. Linda and Juanita allegedly conformed with the sale (pp.
120-129, Record). It turned out that the buyer, Makiling Management Co., Inc., was
incorporated by Ethel and her husband, Rex Roberts, and by lawyer Limqueco (Annex L, p.
90, testate case).

Also with the court's approval and the consent of Linda and Juanita, they sold for
P1,546,136 to Joseph Server and others 193,267 shares of RFM Corporation (p. 135,
Record).
Acting on the declaration of heirs and project of partition signed and filed by lawyers
Limqueco and Macaraeg (not signed by Maxine and her two children), Judge Conrado M.
Molina in his order of July 27, 1979 adjudicated to Maxine onehalf (4/8) of the decedent's
Philippine estate and one-eighth (1/8) each to his four children or 12-1/2% (pp. 140-142,
Record). No mention at all was made of the will in that order.
Six days later, or on August 2, Maxine and her two children replaced Limqueco with
Octavio del Callar as their lawyer who on August 9, moved to defer approval of the project
of partition. The court considered the motion moot considering that it had already
approved the declaration of heirs and project of partition (p. 149, Record).
Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he was no longer
connected with Makiling Management Co., Inc. when the Palawan Pearl Project was sold:
that it was Maxine's son Pete who negotiated the sale with Rex Roberts and that he
(Limqueco) was going to sue Maxine for the lies she imputed to him (Annex H, p. 78,
testate case).
Ethel submitted to the court a certification of the Assistant Commissioner of Internal
Revenue dated October 2, 1979. It was stated therein that Maxine paid P1,992,233.69 as
estate tax and penalties and that he interposed no objection to the transfer of the estate
to Grimm's heirs (p. 153, Record). The court noted the certification as in conformity with
its order of July 27, 1979.
After November, 1979 or for a period of more than five months, there was no movement or
activity in the intestate case. On April 18, 1980 Juanita Grimm Morris, through Ethel's
lawyers, filed a motion for accounting "so that the Estate properties can be partitioned
among the heirs and the present intestate estate be closed." Del Callar, Maxine's lawyer
was notified of that motion.
Before that motion could be heard, or on June 10, 1980, the Angara law firm filed again its
appearance in collaboration with Del Callar as counsel for Maxine and her two children,
Linda and Pete. It should be recalled that the firm had previously appeared in the case as
Maxine's counsel on March 11, 1978, when it filed a motion to dismiss the intestate
proceeding and furnished the court with a copy of Grimm's will. As already noted, the firm
was then superseded by lawyer Limqueco.
Petition to annul partition and testate proceeding No. 134559. On September 8, 1980,
Rogelio A. Vinluan of the Angara law firm in behalf of Maxine, Pete and Linda, filed in
Branch 38 of the lower court a petition praying for the probate of Grimm's two wills
(already probated in Utah), that the 1979 partition approved by the intestate court be set
aside and the letters of administration revoked, that Maxine be appointed executrix and
that Ethel and Juanita Morris be ordered to account for the properties received by them
and to return the same to Maxine (pp. 25-35, Rollo).
Grimm's second wife and two children alleged that they were defraud due to the
machinations of the Roberts spouses, that the 1978 Utah compromise agreement was
illegal, that the intestate proceeding is void because Grimm died testate and that the
partition was contrary to the decedent's wills.

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his
order of October 27, 1980. Ethel then filed a petition for certiorari and prohibition in this
Court, praying that the testate proceeding be dismissed, or. alternatively that the two
proceedings be consolidated and heard in Branch 20 and that the matter of the annulment
of the Utah compromise agreement be heard prior to the petition for probate (pp. 22-23,
Rollo).
Ruling. We hold that respondent judge did not commit any grave abuse of discretion,
amounting to lack of jurisdiction, in denying Ethel's motion to dismiss.
A testate proceeding is proper in this case because Grimm died with two wills and "no will
shall pass either real or personal property unless it is proved and allowed" (Art. 838, Civil
Code; sec. 1, Rule 75, Rules of Court).
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249;
Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of
a person who died testate should be settled in an intestate proceeding. Therefore, the
intestate case should be consolidated with the testate proceeding and the judge assigned
to the testate proceeding should continue hearing the two cases.
Ethel may file within twenty days from notice of the finality of this judgment an opposition
and answer to the petition unless she considers her motion to dismiss and other pleadings
sufficient for the purpose. Juanita G. Morris, who appeared in the intestate case, should be
served with copies of orders, notices and other papers in the testate case.
WHEREFORE the petition is dismissed. The temporary restraining order is dissolved. No
costs.
SO ORDERED.1wph1.t
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B.
BONILLA deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination
pursuant to Section 3, Rule 50 of the Rules of Court.

... It is our considered opinion that once the original copy of the
holographic will is lost, a copy thereof cannot stand in lieu of the original.

As found by the Court of Appeals:

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held
that 'in the matter of holographic wills the law, it is reasonable to
suppose, regards the document itself as the material proof of
authenticity of said wills.

... On January 11, 1977, appellant filed a petition with the Court of First
Instance of Rizal for the probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in her favor. The
petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees
Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias
and Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by
failing to produce the will within twenty days of the death of the testator
as required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a
disposition of property after death and was not intended to take effect
after death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof,
must be produced, otherwise it would produce no effect, as held in Gam
v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise,
executed and attested as required by law.
The appellees likewise moved for the consolidation of the case with
another case Sp. Proc. No, 8275). Their motion was granted by the court
in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the
appellees moved again to dismiss the petition for the probate of the will.
They argued that:
(1) The alleged holographic was not a last will but merely an instruction
as to the management and improvement of the schools and colleges
founded by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary
evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by
the court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that
the order was contrary to law and settled pronouncements and rulings of
the Supreme Court, to which the appellant in turn filed an opposition. On
July 23, 1979, the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo B. Bonilla.
The court said:

MOREOVER, this Court notes that the alleged holographic will was
executed on January 25, 1962 while Ricardo B. Bonilla died on May 13,
1976. In view of the lapse of more than 14 years from the time of the
execution of the will to the death of the decedent, the fact that the
original of the will could not be located shows to our mind that the
decedent had discarded before his death his allegedly missing
Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of
Appeals in which it is contended that the dismissal of appellant's petition is contrary to law
and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the
appeal does not involve question of fact and alleged that the trial court committed the
following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC
WILL MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can
be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will by the court after its due execution
has been proved. The probate may be uncontested or not. If uncontested, at least one
Identifying witness is required and, if no witness is available, experts may be resorted to.
If contested, at least three Identifying witnesses are required. However, if the holographic
will has been lost or destroyed and no other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the testator in said will. It is
necessary that there be a comparison between sample handwritten statements of the
testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic
will may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution
and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as
material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it
may be proved by a photographic or photostatic copy. Even a mimeographed or carbon
copy; or by other similar means, if any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate court," Evidently, the photostatic
or xerox copy of the lost or destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's
motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979,
dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.

24 thereof, a letter-win addressed to her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 "
and states: "This is my win which I want to be respected although it is not written by a
lawyer. ...

SO ORDERED.

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de
Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is
the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the
handwriting of their mother and positively Identified her signature. They further testified
that their deceased mother understood English, the language in which the holographic Will
is written, and that the date "FEB./61 " was the date when said Will was executed by their
mother.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND
BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco,
Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus
and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the
deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters
of Administration had been granted to the petitioner, he delivered to the lower court a
document purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus.
On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the
holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"

assailing the purported holographic Will of Bibiana R. de Jesus because a it was not
executed in accordance with law, (b) it was executed through force, intimidation and/or
under duress, undue influence and improper pressure, and (c) the alleged testatrix acted
by mistake and/or did not intend, nor could have intended the said Will to be her last Will
and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly executed in accordance
with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that
the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required
by Article 810 of the Civil Code. She contends that the law requires that the Will should
contain the day, month and year of its execution and that this should be strictly complied
with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The dispositive portion of the
order reads:
WHEREFORE, the document purporting to be the holographic Will of
Bibiana Roxas de Jesus, is hereby disallowed for not having been
executed as required by the law. The order of August 24, 1973 is hereby
set aside.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of
the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil
Code which reads:
ART. 810. A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator himself. It
is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of
the Old Civil Code require the testator to state in his holographic Win the "year, month,
and day of its execution," the present Civil Code omitted the phrase Ao mes y dia and

simply requires that the holographic Will should be dated. The petitioners submit that the
liberal construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will is
void for non-compliance with Article 810 of the New Civil Code in that the date must
contain the year, month, and day of its execution. The respondent contends that Article
810 of the Civil Code was patterned after Section 1277 of the California Code and Section
1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the required
date includes the year, month, and day, and that if any of these is wanting, the holographic
Will is invalid. The respondent further contends that the petitioner cannot plead liberal
construction of Article 810 of the Civil Code because statutes prescribing the formalities to
be observed in the execution of holographic Wills are strictly construed.

... More than anything else, the facts and circumstances of record are to
be considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the wilt and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil.
745).
If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the form followed by the testator.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of
the statutory requirements regarding the due execution of Wills. We should not overlook
the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of
which, in case of doubt is to prevent intestacy
The underlying and fundamental objectives permeating the provisions of
the law on wigs in this Project consists in the liberalization of the manner
of their execution with the end in view of giving the testator more
freedom in expressing his last wishes, but with sufficien safeguards and
restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modem tendency with respect to the
formalities in the execution of wills. (Report of the Code Commission, p.
103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA
327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed in
his last will and testament on the ground that any disposition made by
the testator is better than that which the law can make. For this reason,
intestate succession is nothing more than a disposition based upon the
presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to
guard against fraud and bad faith but without undue or unnecessary curtailment of
testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in
substantial compliance with the formalities of the law, and the possibility of bad faith and
fraud in the exercise thereof is obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx

The purpose of the solemnities surrounding the execution of Wills has been expounded by
this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and authenticity. ...
In particular, a complete date is required to provide against such contingencies as that of
two competing Wills executed on the same day, or of a testator becoming insane on the
day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad faith and
fraud in its execution nor was there any substitution of Wins and Testaments. There is no
question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely
written, dated, and signed by the testatrix herself and in a language known to her. There is
also no question as to its genuineness and due execution. All the children of the testatrix
agree on the genuineness of the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will. The objection interposed by
the oppositor-respondent Luz Henson is that the holographic Will is fatally defective
because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance
with Article 810 of the Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day, month, and year
of its execution. However, when as in the case at bar, there is no appearance of fraud, bad
faith, undue influence and pressure and the authenticity of the Will is established and the
only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and
SET ASIDE and the order allowing the probate of the holographic Will of the deceased
Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,
CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF
MOLO, AND ASILO DE MOLO,petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much
bigger and more valuable shares in the estate of Adriana than what they received by virtue
of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives
devises and legacies to other parties, among them being the petitioners Asilo de Molo, the
Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees
named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of the will When the trial court
denied their motion, the petitioner came to us by way of a petition for certiorari and
mandamus assailing the orders of the trial court . 3 As we stated earlier, we dismissed that
petition and advised that a separate proceeding for the probate of the alleged will would be
the appropriate vehicle to thresh out the matters raised by the petitioners.

SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other cases
directly related to the present one and involving the same parties had already been
decided by us in the past. In G.R. No. L-30479, 1which was a petition for certiorari and
mandamus instituted by the petitioners herein, we dismissed the petition ruling that the
more appropriate remedy of the petitioners is a separate proceeding for the probate of the
will in question. Pursuant to the said ruling, the petitioners commenced in the then Court
of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will,
which was opposed by the private respondents presently, Panfilo and Felino both surnamed
Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the
dismissal, again, the petitioners came to this Court on a petition for review by
certiorari. 2 Acting on the said petition, we set aside the trial court's order and directed it
to proceed to hear the case on the merits. The trial court, after hearing, found the will to
have already been revoked by the testatrix. Adriana Maloto, and thus, denied the petition.
The petitioners appealed the trial court's decision to the Intermediate Appellate Court
which, on June 7, 1985, affirmed the order. The petitioners' motion for reconsideration of
the adverse decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the
petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents
Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last
will and testament, these four heirs commenced on November 4, 1963 an intestate
proceeding for the settlement of their aunt's estate. The case was instituted in the then
Court of First Instance of Iloilo and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be exact on February 1, 1964, the
parties Aldina, Constancio, Panfilo, and Felino executed an agreement of extrajudicial
settlement of Adriana's estate. The agreement provided for the division of the estate into
four equal parts among the parties. The Malotos then presented the extrajudicial
settlement agreement to the trial court for approval which the court did on March 21,
1964. That should have signalled the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of
Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled
"KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting
to be the last will and testament of Adriana. Atty. Palma claimed to have found the
testament, the original copy, while he was going through some materials inside the cabinet
drawer formerly used by Atty. Hervas. The document was submitted to the office of the
clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and

Significantly, the appellate court while finding as inconclusive the matter on whether or not
the document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto
Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself
and found that the will had been revoked. The respondent court stated that the presence
of animus revocandi in the destruction of the will had, nevertheless, been sufficiently
proven. The appellate court based its finding on the facts that the document was not in the
two safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to
retrieve a copy of the will left in the latter's possession, and, her seeking the services of
Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we
do not view such facts, even considered collectively, as sufficient bases for the conclusion
that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of
the will. The heart of the case lies on the issue as to whether or not the will was revoked
by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of
wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other person
in his presence, and by his express direction. If burned, torn cancelled,
or obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and the fact of
its unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not
per se constitute an effective revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that the physical destruction be
done by the testator himself. It may be performed by another person but under

the express direction and in the presence of the testator. Of course, it goes without saying
that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be conceded, for that
is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one
of the necessary elements for the effective revocation of a last will and testament. The
intention to revoke must be accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator or by another person in his
presence and under his express direction. There is paucity of evidence to show compliance
with these requirements. For one, the document or papers burned by Adriana's maid,
Guadalupe, was not satisfactorily established to be a will at all, much less the will of
Adriana Maloto. For another, the burning was not proven to have been done under the
express direction of Adriana. And then, the burning was not in her presence. Both
witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present
at the place where the stove (presumably in the kitchen) was located in which the papers
proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private
respondents as oppositors in the trial court, concluded that the testimony of the two
witnesses who testified in favor of the will's revocation appear "inconclusive." We share the
same view. Nowhere in the records before us does it appear that the two witnesses,
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive
that the document burned was indeed Adriana's will. Guadalupe, we think, believed that
the papers she destroyed was the will only because, according to her, Adriana told her so.
Eladio, on the other hand, obtained his information that the burned document was the will
because Guadalupe told him so, thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a
purported win is not denied legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its very foundations ...." 4
The private respondents in their bid for the dismissal of the present action for probate
instituted by the petitioners argue that the same is already barred by res adjudicata. They
claim that this bar was brought about by the petitioners' failure to appeal timely from the
order dated November 16, 1968 of the trial court in the intestate proceeding (Special
Proceeding No. 1736) denying their (petitioners') motion to reopen the case, and their
prayer to annul the previous proceedings therein and to allow the last will and testament
of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a
judgment to be a bar to a subsequent case, the following requisites must concur: (1) the
presence of a final former judgment; (2) the former judgment was rendered by a court
having jurisdiction over the subject matter and the parties; (3) the former judgment is a
judgment on the merits; and (4) there is, between the first and the second action, Identity
of parties, of subject matter, and of cause of action. 5 We do not find here the presence of
all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate
of Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding
No. 1736, although final, involved only the intestate settlement of the estate of Adriana. As
such, that judgment could not in any manner be construed to be final with respect to the
probate of the subsequently discovered will of the decedent. Neither is it a judgment on
the merits of the action for probate. This is understandably so because the trial court, in
the intestate proceeding, was without jurisdiction to rule on the probate of the contested

will . 6 After all, an action for probate, as it implies, is founded on the presence of a will
and with the objective of proving its due execution and validity, something which can not
be properly done in an intestate settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is likewise no Identity between the
cause of action in intestate proceeding and that in an action for probate. Be that as it may,
it would be remembered that it was precisely because of our ruling in G.R. No. L-30479
that the petitioners instituted this separate action for the probate of the late Adriana
Maloto's will. Hence, on these grounds alone, the position of the private respondents on
this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the
fact that "(a) major and substantial bulk of the properties mentioned in the will had been
disposed of: while an insignificant portion of the properties remained at the time of death
(of the testatrix); and, furthermore, more valuable properties have been acquired after the
execution of the will on January 3,1940." 7 Suffice it to state here that as these additional
matters raised by the private respondents are extraneous to this special proceeding, they
could only be appropriately taken up after the will has been duly probated and a certificate
of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision
dated June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of
Appeals, and a new one ENTERED for the allowance of Adriana Maloto's last will and
testament. Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.
Padilla, J., took no part.