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SUCCESSION FULL TEXT CASES 2

Singson v. Florentino, L-4603, Oct. 25, 1952


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[1952V207] In re: Petition for the probate of the will of the deceased Leona Singson. MANUEL SINGSON,
petitioner-appellee, vs. EMILIA FLORENTINO, TRINIDAD FLORENTINO DE PAZ, and JOSEFINA
FLORENTINO VDA. DE LIM, oppositors-appellants.1952 Oct 251st DivisionG.R. No. L-4603D E C I S I O N

BAUTISTA ANGELO, J.:

This is an appeal from a decision of the Court of First Instance of Ilocos Sur admitting to probate the last
will and testament of the late Leona Singson.

On January 13, 1948, Leona Singson died in Vigan, Ilocos Sur, leaving a will. In said will the deceased
instituted as heirs her brothers Evaristo, Dionisio and Manuel, her nieces Rosario F. de Donato, Emilia
Florentino and Trinidad Florentino de Paz, her grandniece Consolacion Florentino, and some servants.
She named her brothers Evaristo and Manuel as executors of the will. On February 2, 1948, Manuel
Singson filed a petition for the probate of said will.

On March 6, 1948, Emilia Florentino, Trinidad Florentino de Paz and Josefina Florentino Vda. de Lim,
daughters of a sister of the deceased, opposed the petition alleging among other grounds that the
signatures appearing in the will are not the genuine signatures of the deceased, and that the will has not
been executed in accordance with the formalities of the law.

After due trial, the court found that the will has been executed in accordance with law and admitted the
same to probate. The oppositors appealed to the Court of Appeals, but the case was later certified to
this court for the reason that it involves purely questions of law.

The first error assigned refers to the admission by the lower court of the deposition of Fidel Reyes, an
instrumental witness, which was taken because he was then suffering from paralysis and was thus
physically incapacitated to appear and testify in court. It is the claim of the oppositors that, under
section 11, Rule 77 of the Rules, if the will is contested, all the subscribing witnesses present in the
Philippines must be produced and examined, and if they are dead, absent or insane, this fact must be
satisfactorily shown to the court. If a subscribing witness is present in the Philippines but outside the
province where the will has been filed, his deposition must be taken. In this case Fidel Reyes was not
outside of the province, in fact he was then living in the place where the case was pending trial. He,

therefore, must appear in court and his deposition cannot be taken. And so they contend that the lower
court erred in admitting his deposition instead of taking his testimony.

It should be noted that one of the three instrumental witnesses of the will, namely, Bonifacio Brillantes,
was already dead when the case came up for trial and the only witnesses then available were Victoriano
Lazo and Fidel Reyes who was then unable to appear because of his physical ailment. And when this
matter was brought to the knowledge of the court, the latter manifested its desire to go to the house of
the ailing witness for the taking of his testimony, but the move was prevented because of the
conformity of counsel for the oppositors to the taking of his deposition. And because of this conformity,
the deposition was taken and on that occasion opposing counsel was present and actually took part in
the taking of the deposition. In the face of these facts, we opine that, while the taking of the deposition
was not made in strict compliance with the rule (section 11, Rule 77), the deficiency, if any, has been
cured by the waiver evinced by counsel for the oppositors which prevented the court from constituting
itself in the residence of the witness.

We believe, however, that the deposition may also be justified by interpreting section 11, Rule 77, in
connection with Rule 18, section 4(c), of the Rules, relative to the taking of the deposition of a witness in
ordinary cases when he is unable to testify because of sickness. Interpreting and harmonizing together
these two provisions we may draw the conclusion that even if an instrumental witness is within the seat
of the court but is unable to appear because of sickness, as in this case, his deposition may still be taken,
for a different interpretation would be senseless and impractical and would defeat the very purpose
which said Rule 77 intends to serve.

Another point raised by oppositors refers to the alleged failure of the attestation clause to state the
number of the sheets or pages in which the will is written which, it is claimed, is fatal because it is
contrary to the express requirement of the law.

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which
requires that the attestation clause shall state the number of pages or sheets upon which the will is
written, which requirement has been held to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs.
Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil., 481;
Echavarria vs. Sarmiento, 66 Phil., 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing the will and
that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot
be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here
the situation is different. While the attestation clause does not state the number of sheets or pages
upon which the will is written, however, the last part of the body of the will contains a statement that it
is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from being defeated by purely technical considerations.

One of such cases is De Gala vs. Gonzales and Ona, 53 Phil., 104. Here one of the objections raised was
that the attestation clause does not state that the will had been signed in the presence of the witnesses
although this fact appears in the last paragraph of the body of the will, and the Court, in overruling the
objection, said that "it may be conceded that the attestation clause is not artistically drawn and that,
standing alone, it does not quite meet the requirements of the statute, but taken in connection with the
last clause of the body of the will, it is fairly clear and sufficiently carries out the legislative intent; it
leaves no possible doubt as to the authenticity of the document".

Another case that may be cited is Mendoza vs. Pilapil (72 Phil., 546). In this case, the objection was that
the attestation clause does not state the number of pages upon which the will was written, and yet the
court held that the law has been substantially complied with inasmuch as in the body of the will and on
the same page wherein the attestation clause appears written it is expressly stated that that will
contains three pages each of which was numbered in letters and in figures. Said the court:

"El proposito de la ley al establecer las formalidades que se requieren en un testamento, es


indudablemente asegurar y garantizar su autenticidad contra la mala fe y el fraude, para evitar que
aquellos que no tienen derecho a suceder al testador, le suceden y salgan beneficiados con la
legalizacion del mismo. Se ha cumplido dicho proposito en el caso de que se viene hablando porque, en
el mismo cuerpo del testamento y en la misma pagina donde aparece la clausula de atestiguamiento, o
sea la tercera, se expresa que el testamento consta de tres paginas y porque cada una de las dos
primeras lleva en parte la nota en letras, y en parte la nota en guarismos, de que son respectivamente la
primera y segunda paginas del mismo. Estos hechos excluyen evidentemente todo temor, toda
sospecha, o todo asomo de duda de que se haya sustituido alguna de sus paginas con otra." (Mendoza
vs. Pilapil, 72 Phil., 546.)

Considering the form in which the will in question is written in the light of the liberal ruling above
adverted to, the conclusion is inescapable that the will has been drafted in substantial compliance with
the law. This opinion is bolstered up when we examine the will itself which shows on its face that it is
really and actually composed of eight pages duly signed by the testatrix and her instrumental witnesses.

The remaining question to be determined is: does the attestation clause state that the testatrix signed
each and every page of the will in the presence of the three instrumental witnesses as required by law?

The disputed attestation clause reads as follows:

"Nosotros los testigos, conforme al ruego de Da. Leona Singson, en este testamento, despues de
anunciarnos que este es su testamento donde hizo sus ordenes sobre su verdadera y ultima voluntad,
firmo e imprimio su marca digital en presencia de todos nosotros; y nosotros firmamos tambien en
presencia de ella y delante de cada uno de nosotros al pie del citado testamento y en el margen

izquierdo de sus otras paginas. Y hemos observado que Da. Leona Singson estaba en su sano juicio,
pensamiento y uso de sus sentidos. (Exh. A-1)."

A perusal of the above attestation clause would at first glance give the impression that the testatrix
merely signed or stamped her thumbmark on the will in the presence of the witnesses, without stating
the place where her signature or thumbmark had been affixed, which impression is caused by the fact
that right after the sentence firmo e imprimio su marca digital en presencia de todos nosotros, there
appears a semicolon; but if this semicolon is disregarded, we would at once see that the testatrix signed
or affixed her thumbmark not only at the bottom of the will but also on the left margin of each and
every page thereon, considering the concluding part of the sentence concerning the signing of the will.
That semicolon undoubtedly has been placed there by mistake or through inadvertence, as may be
deduced from the use of the word tambien made by the witnesses in the sentence immediately
following, which conveys the idea of oneness in action both on the part of the testatrix and the
witnesses. Thus considered and interpreted, the attestation clause complies substantially with the law.

"The appellants earnestly contend that the attestation clause fails to show that the witnesses signed the
will and each and every page thereof because it simply says 'que nosotros los testigos hemos tambien
firmado en presencia de la testadora y en la presencia del uno al otro' (that we the witnesses also signed
in the presence of the testatrix and of each other).

"In answer to this contention it may be said that this portion of the attestation clause must be read in
connection with the portion preceding it, which states that the testatrix signed the will and on all the
margins thereof in the presence of the witnesses; especially, because the word also used therein
establishes a very close connection between said two portions of the attestation clause. This word also
should, therefore, be given in its full meaning which, in the instant case, is that the witnesses signed the
will in the same manner as the testatrix did. The language of the whole attestation clause, taken
together, clearly shows that the witnesses signed the will and on all the margins thereof in the presence
of the testatrix and of each other." (Rey vs. Cartagena, 56 Phil., pp. 282, 284.)

In view of the foregoing, we find that the lower court did not commit any of the errors assigned by
appellants and, therefore, we affirm the decision appealed from, with costs.

Paras, C.J., Pablo, Bengzon, Padilla, Montemayor and Labrador, JJ., concur.
Jugo, J., concurs in the result.

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([1952V207] In re: Petition for the probate of the will of the deceased Leona Singson. MANUEL
SINGSON, petitioner-appellee, vs. EMILIA FLORENTINO, TRINIDAD FLORENTINO DE PAZ, and JOSEFINA
FLORENTINO VDA. DE LIM, oppositors-appellants., G.R. No. L-4603, 1952 Oct 25, 1st Division)

Taboada v. Hon. Rosal, L-36033


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[1982V625] IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner, vs. HON. AVELINO S. ROSAL, as Judge of the Court of First
Instance of Southern Leyte, (Branch III, Maasin), respondent.1982 Nov 51st DivisionG.R. No. L-36033D E
CISION

GUTIERREZ, JR., J.:


This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch
III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of
Dorotea Perez, Deceased; Apolonio Taboada, Petitioner," which denied the probate of the will, the
motion for reconsideration and the motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will
and testament of the late Dorotea Perez. Written in Cebuano-Visayan dialect, the will consists of two
pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of
the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The
second page which contains the attestation clause and the acknowledgment is signed at the end of the
attestation clause by the three 13) attesting witnesses and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of publications, the
trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the
petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to
the will, who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the
probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the
petitioner was also required to submit the names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could intervene in the summary settlement of the
estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion
ex parte praying for a thirty-day period within which to deliberate on any step to be taken as a result of
the disallowance of the will. He also asked that the ten-day period required by the court to submit the
names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However,
the motion together with the previous manifestation and/or motion could not be acted upon by the
Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or
incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of
presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or
motion filed ex parte. In the same order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to comply with the order requiring
him to submit the names of the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and
all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the
testatrix and of one another?
Article 805 of the Civil Code provides:
"Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person in his presence, and by his express direction,
and attested and subscribed by three or more credible witnesses in the presence of the testator and of
one another.
"The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all
the pages shall be numbered correlatively in letters placed on the upper part of each page.
"The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed
and signed the with and the pages thereof in the presence of the testator and of one another.
"If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them."
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to
be valid, it is not enough that only the testatrix signs at the "end" but all the three subscribing witnesses
must also sign at the same place or at the end, in the presence of the testatrix and of one another
because the attesting witnesses to a will attest not merely the will itself but also the signature of the
testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left
hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the will that the
signatures of the subscribing witnesses should be specifically located at the end of the will after the
signature of the testatrix. He contends that it would be absurd that the legislature intended to place so

heavy an import on the space or particular location where the signatures are to be found as long as this
space or particular location wherein the signatures are found is consistent with good faith and the
honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the
testator himself or by the testator's name written by another person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another.
It must be noted that the law uses the terms attested and subscribed. Attestation consists in witnessing
the testator's execution of the will in order to see and take note mentally that those things are done
which the statute requires for the execution of a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the
purpose of identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill,
269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this
case was subscribed in a manner which fully satisfies the purpose of identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested not
only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms
should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90
Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the
provisions on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last wishes but with
sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator. This objective is in accord with the modern
tendency in respect to the formalities in the execution of a will" (Report of the Code Commission, p.
103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were it not for the defect
in the place of signatures of the witnesses, he would have found the testimony sufficient to establish the
validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly identified by subscribing witness Vicente Timkang
to be the same will executed by the testatrix. There was no question of fraud or substitution behind the
questioned order.

We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire will that it is really and actually composed of only two
pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which
contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the left margin. The other page which is marked as
"Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself
states that "This Last Will and Testament consists of two pages including this page."
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with
respect to the purpose of the requirement that the attestation clause must state the number of pages
used:
"The law referred to is Article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which
requires that the attestation clause shall state the number of pages or sheets upon which the will is
written, which requirement has been held to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil. 180; Uy Coque vs.
Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria
vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause
must contain a statement of the number of sheets or passes composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is
different. While the attestation clause does not state the number of sheets or pages upon which the will
is written, however, the last part of the body of the will contains a statement that it is composed of
eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and
places it within the realm of similar cases where a broad and more liberal view has been adopted to
prevent the will of the testator from being defeated by purely technical considerations."
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:
" . . . Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two
other witnesses, did sign the defective page, but also by its bearing the coincident imprint of the seal of
the notary public before whom the testament was ratified by testatrix and all three witnesses. The law
should not be so strictly and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no control, where the purpose of the law
to guarantee the identity of the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on record attest to the full observance of
the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz 1459, at 1479
(decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the
attestation clause.'"
WHEREFORE, the present petition is hereby granted. The orders of the respondent Court which denied
the probate of the will, the motion for reconsideration of the denial of probate, and the motion for
appointment of a special administrator are set aside. The respondent court is ordered to allow the
probate of the will and to conduct further proceedings in accordance with this decision. No
pronouncement of costs.
SO ORDERED.

Melencio-Herrera (Acting Chairman), Plana, Vasquez and Relova, JJ., concur.


Teehankee (Chairman), J., is on leave.
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([1982V625] IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner, vs. HON. AVELINO S. ROSAL, as Judge of the Court of First
Instance of Southern Leyte, (Branch III, Maasin), respondent., G.R. No. L-36033, 1982 Nov 5, 1st Division)

Azuela v. CA, 487 SCRA 119 (2006)


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[2006V386] FELIX AZUELA, Petitioner, versus COURT OF APPEALS, GERALDA AIDA CASTILLO substituted
by ERNESTO G. CASTILLO, Respondents.2006 Apr 123rd DivisionG.R. No. 122880D E C I S I O N

Tinga, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E.
Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition
to the due execution of this document, the Court is provided the opportunity to assert a few important
doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the
Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is written is
fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally
defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere
jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all
three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of
imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed
requisites under Article 805 of the Code leave little room for doubt as to the validity in the due
execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial
wills that they be acknowledged before a notary public by the testator and the witnesses. A notarial
will executed with indifference to these two codal provisions opens itself to nagging questions as to its
legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court
(RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will
of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the
decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa


500 San Diego St.
, Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay
nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang
ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian


at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si


Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote
numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San
Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang
pasubalit at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at


kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin
ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa
kaliwang panig ng lahat at bawat dahon ng kasulatan ito.

EUGENIA E. IGSOLO
address:
500 San Diego St
.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA

address: 1228-Int. 3, Kahilum


Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite
on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232

NOTARIO PUBLIKO

Page No. 86
Book No. 43
Series of 1981

;
;

Until Dec. 31, 1981


PTR-152041-1/2/81-Manila
TAN # 1437-977-8[1]

The three named witnesses to the will affixed their signatures on the left-hand margin of both
pages of the will, but not at the bottom of the attestation clause.

The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent,
namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad.
Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated
executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as
the attorney-in-fact of the 12 legitimate heirs of the decedent.[2] Geralda Castillo claimed that the will
is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several
court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real
property, all centering on petitioners right to occupy the properties of the decedent.[3] It also asserted
that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate
heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently
alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,[4] and the mother of a
legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.[5]

Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with
law. She pointed out that decedents signature did not appear on the second page of the will, and the
will was not properly acknowledged. These twin arguments are among the central matters to this
petition.

After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.[6] The RTC
favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore the modern tendency in respect to
the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in
expressing his last wishes;[7] and from this perspective, rebutted oppositors arguments that the will
was not properly executed and attested to in accordance with law.

After a careful examination of the will and consideration of the testimonies of the subscribing and
attesting witnesses, and having in mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of
a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and had been executed by the testatrix in
accordance with law.

On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the
signature of the testatrix, the following statement is made under the sub-title, Patunay Ng Mga Saksi:

Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa
kaliwang panig ng lahat at bawat dahon ng kasulatan ito.

The aforequoted declaration comprises the attestation clause and the acknowledgement and is
considered by this Court as a substantial compliance with the requirements of the law.

On the oppositors contention that the attestation clause was not signed by the subscribing witnesses at
the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left
margin of the second page of the will containing the attestation clause and acknowledgment, instead of
at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will.

With regard to the oppositors argument that the will was not numbered correlatively in letters placed
on upper part of each page and that the attestation did not state the number of pages thereof, it is
worthy to note that the will is composed of only two pages. The first page contains the entire text of the
testamentary dispositions, and the second page contains the last portion of the attestation clause and
acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For
the same reason, the failure of the testatrix to affix her signature on the left margin of the second page,
which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect.

As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the
testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will.[8]

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since
deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals
reversed the trial court and ordered the dismissal of the petition for probate.[9] The Court of Appeals
noted that the attestation clause failed to state the number of pages used in the will, thus rendering the
will void and undeserving of probate.[10]

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of the Civil Code that the number of pages
used in a notarial will be stated in the attestation clause is merely directory, rather than mandatory,
and thus susceptible to what he termed as the substantial compliance rule.[11]

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which
we replicate in full.

Art. 805.
Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all
the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk
of Court.

The appellate court, in its Decision, considered only one defect, the failure of the attestation
clause to state the number of pages of the will. But an examination of the will itself reveals several more
deficiencies.

As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will.[12] There was an incomplete attempt to comply with this requisite, a space having been allotted for
the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence,
the requisite was left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v.
Navas L. Sioca[13] and In re: Will of Andrada.[14] In Uy Coque, the Court noted that among the defects
of the will in question was the failure of the attestation clause to state the number of pages contained in
the will.[15] In ruling that the will could not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day: The purpose of requiring the number of sheets
to be stated in the attestation clause is obvious; the document might easily be so prepared that the
removal of a sheet would completely change the testamentary dispositions of the will and in the
absence of a statement of the total number of sheets such removal might be effected by taking out the
sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the
total number of sheets is stated in the attestation clause the falsification of the document will involve

the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin,
a matter attended with much greater difficulty.[16]

The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the
number of sheets or pages used. This consideration alone was sufficient for the Court to declare
unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal.[17] It was
further observed that it cannot be denied that the x x x requirement affords additional security against
the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material.[18]

Against these cited cases, petitioner cites Singson v. Florentino[19] and Taboada v. Hon. Rosal,[20]
wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation
clause did not state the number of pages of the will. Yet the appellate court itself considered the import
of these two cases, and made the following distinction which petitioner is unable to rebut, and which we
adopt with approval:

Even a cursory examination of the Will (Exhibit D), will readily show that the attestation does not state
the number of pages used upon which the will is written. Hence, the Will is void and undeserving of
probate.

We are not impervious of the Decisions of the Supreme Court in Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195,
to the effect that a will may still be valid even if the attestation does not contain the number of pages
used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in
the aforementioned appeal at bench. This is so because, in the case of Manuel Singson versus Emilia
Florentino, et al., supra, although the attestation in the subject Will did not state the number of pages
used in the will, however, the same was found in the last part of the body of the Will:

x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act
No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon
which the will is written, which requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of the will to the prejudice of
the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing the will and
that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot
be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here
the situation is different. While the attestation clause does not state the number of sheets or pages
upon which the will is written, however, the last part of the body of the will contains a statement that it
is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from being defeated by purely technical
considerations. (page 165-165, supra) nderscoring supplied)

In Apolonio Tabaoda versus Hon. Avelino Rosal, et al. supra, the notarial acknowledgement in
the Will states the number of pages used in the:

x x x

We have examined the will in question and noticed that the attestation clause failed
to state the number of pages used in writing the will. This would have been a fatal defect were it not for
the fact that, in this case, it is discernible from the entire will that it is really and actually composed of
only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or
at the bottom while the instrumental witnesses signed at the left margin. The other page which is

marked as Pagina dos comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that this Last Will and Testament consists of two pages including this
page (pages 200-201, supra) nderscoring supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in any part of
the Will. The will does not even contain any notarial acknowledgment wherein the number of pages of
the will should be stated.[21]

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time
when the statutory provision governing the formal requirement of wills was Section

618 of the Code of Civil Procedure.[22] Reliance on these cases remains apropos, considering that the
requirement that the attestation state the number of pages of the will is extant from Section 618.[23]
However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the
requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states: In the absence of bad
faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial compliance with all the requirements of article
805.

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that the
underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project
consists in the [liberalization] of the manner of their execution with the end in view of giving the
testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern
tendency] in respect to the formalities in the execution of wills.[24] However, petitioner conveniently
omits the qualification offered by the Code Commission in the very same paragraph he cites from their
report, that such liberalization be but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the
testator.[25]

Caneda v. Court of Appeals[26] features an extensive discussion made by Justice Regalado, speaking for
the Court on the conflicting views on the manner of interpretation of the legal formalities required in
the execution of the attestation clause in wills.[27] Uy Coque and Andrada are cited therein, along with
several other cases, as examples of the application of the rule of strict construction.[28] However, the
Code Commission opted to recommend a more liberal construction through the substantial compliance

rule under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809
should be applied:

x x x The rule must be limited to disregarding those defects that can be supplied by an examination of
the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each
and every page; whether the subscribing witnesses are three or the will was notarized. All these are
facts that the will itself can reveal, and defects or even omissions concerning them in the attestation
clause can be safely disregarded. But the total number of pages, and whether all persons required to
sign did so in the presence of each other must substantially appear in the attestation clause, being the
only check against perjury in the probate proceedings.[29] ( mphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering
that the failure to state the number of pages of the will in the attestation clause is one of the defects
which cannot be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will
whose attestation clause failed to state that the witnesses subscribed their respective signatures to the
will in the presence of the testator and of each other,[30] the other omission cited by Justice J.B.L. Reyes
which to his estimation cannot be lightly disregarded.

Caneda suggested: [I]t may thus be stated that the rule, as it now stands, is that omission which can be
supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not
be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed.
However, those omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself.[31] Thus, a failure by the
attestation clause to state that the testator signed every page can be liberally construed, since that fact
can be checked by a visual examination; while a failure by the attestation clause to state that the
witnesses signed in one anothers presence should be considered a fatal flaw since the attestation is the
only textual guarantee of compliance.[32]

The failure of the attestation clause to state the number of pages on which the will was written remains
a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of
pages on which the will is written is to safeguard against possible interpolation or omission of one or
some of its pages and to prevent any increase or decrease in the pages.[33] The failure to state the
number of pages equates with the absence of an averment on the part of the instrumental witnesses as
to how many pages consisted the will, the execution of which they had ostensibly just witnessed and
subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states
elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada.
However, in this case, there could have been no substantial compliance with the requirements under

Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the
number of pages which comprise the will.

At the same time, Article 809 should not deviate from the need to comply with the formal requirements
as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal
requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained
effective safeguards against the forgery or intercalation of notarial wills.[34] Compliance with these
requirements, however picayune in impression, affords the public a high degree of comfort that the
testator himself or herself had decided to convey property post mortem in the manner established in
the will.[35] The transcendent legislative intent, even as expressed in the cited comments of the Code
Commission, is for the fruition of the testators incontestable desires, and not for the indulgent
admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an examination of the will
itself reveals a couple of even more critical defects that should necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of
the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom
of the attestation clause which after all consists of their averments before the notary public.

Cagro v. Cagro[36] is material on this point. As in this case, the signatures of the three witnesses to the
will do not appear at the bottom of the attestation clause, although the page containing the same is
signed by the witnesses on the left-hand margin.[37] While three (3) Justices[38] considered the
signature requirement had been substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally
defective.

There is no question that the signatures of the three witnesses to the will do not appear at the bottom
of the attestation clause, although the page containing the same is signed by the witnesses on the lefthand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot

be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof
negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin
conform substantially to the law and may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal mandate that the will be signed on
the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the witnesses.[39]

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite that the will
be attested and subscribed by [the instrumental witnesses]. The respective intents behind these two
classes of signature are distinct from each other. The signatures on the left-hand corner of every page
signify, among others, that the witnesses are aware that the page they are signing forms part of the will.
On the other hand, the signatures to the attestation clause establish that the witnesses are referring to
the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and
apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even
if the instrumental witnesses signed the left-hand margin of the page containing the unsigned
attestation clause, such signatures cannot demonstrate these witnesses undertakings in the clause,
since the signatures that do appear on the page were directed towards a wholly different avowal.

The Court may be more charitably disposed had the witnesses in this case signed the attestation clause
itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of
the instrumental witnesses signatures on each and every page, the fact must be noted that it is the
attestation clause which contains the utterances reduced into writing of the testamentary witnesses
themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the
number of pages used upon which the will is written; the fact that the testator had signed the will and
every page thereof; and that they witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another. The only proof in the will that the witnesses have stated
these elemental facts would be their signatures on the attestation clause.

Thus, the subject will cannot be considered to have been validly attested to by the instrumental
witnesses, as they failed to sign the attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The
requirement under Article 806 that every will must be acknowledged before a notary public by the
testator and the witnesses has also not been complied with. The importance of this requirement is

highlighted by the fact that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally
as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent
import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote Nilagdaan ko at ninotario
ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.[40] By no manner of contemplation
can those words be construed as an acknowledgment. An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court and declaring it to be his act or
deed.[41] It involves an extra step undertaken whereby the signor actually declares to the notary that
the executor of a document has attested to the notary that the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the
document was subscribed and sworn to by the executor.[42] Ordinarily, the language of the jurat
should avow that the document was subscribed and sworn before the notary public, while in this case,
the notary public averred that he himself signed and notarized the document. Possibly though, the
word ninotario or notarized encompasses the signing of and swearing in of the executors of the
document, which in this case would involve the decedent and the instrumental witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless
remain invalid, as the express requirement of Article 806 is that the will be acknowledged, and not
merely subscribed and sworn to. The will does not present any textual proof, much less one under oath,
that the decedent and the instrumental witnesses executed or signed the will as their own free act or
deed. The acknowledgment made in a will provides for another all-important legal safeguard against
spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an
empty meaningless act.[43] The acknowledgment coerces the testator and the instrumental witnesses
to declare before an officer of the law that they had executed and subscribed to the will as their own
free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal
prosecution of persons who participate in the execution of spurious wills, or those executed without the
free consent of the testator. It also provides a further degree of assurance that the testator is of certain
mindset in making the testamentary dispositions to those persons he/she had designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A
notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally
defective, even if it is subscribed and sworn to before a notary public.

There are two other requirements under Article 805 which were not fully satisfied by the will in
question. We need not discuss them at length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the instrumental witnesses sign
each and every page of the will on the left margin, except the last; and that all the pages shall be
numbered correlatively in letters placed on the upper part of each page. In this case, the decedent,
unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature
appearing at the so-called logical end[44] of the will on its first page. Also, the will itself is not
numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a
line of thought that has disabused the notion that these two requirements be construed as
mandatory.[45] Taken in isolation, these omissions, by themselves, may not be sufficient to deny
probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need
not be dwelt on, though indicative as they may be of a general lack of due regard for the requirements
under Article 805 by whoever executed the will.

All told, the string of mortal defects which the will in question suffers from makes the probate denial
inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

DANTE O. TINGA

Associate Justice

Testate Estate of Vicente Cagro v Cagro, L-5826, Apr. 29, 1953


/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\

[1953V115E] Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.1953 Apr 29En BancG.R. No. L-5826D E C I S I O N

PARAS, C.J.:

This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar,
admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan,
Samar, on February 14, 1949.

The main objection insisted upon by the appellants is that the will is fatally defective, because its
attestation clause is not signed by the attesting witnesses. There is no question that the signatures of
the three witnesses to the will do not appear at the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot
be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof
negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin
conform substantially to the law and may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal mandate that the will be signed on
the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered
with costs against the petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions

BAUTISTA ANGELO, J., dissenting:

I dissent. In my opinion the will in question has substantially complied with the formalities of the law
and, therefore, should be admitted to probate. It appears that the will was signed by the testator and
was attested by three instrumental witnesses, not only at the bottom, but also on the left-hand margin.
The witnesses testified not only that the will was signed by the testator in their presence and in the
presence of each other but also that when they did so, the attestation clause was already written
thereon. Their testimony has not been contradicted. The only objection set up by the oppositors to the
validity of the will is the fact that the signatures of the instrumental witnesses do not appear
immediately after the attestation clause.

This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil., 476), this
court said that when the testamentary dispositions "are wholly written on only one sheet signed at the
bottom by the testator and three witnesses (as the instant case), their signatures on the left margin of
said sheet would be completely purposeless." In such a case, the court said, the requirement of the
signatures on the left hand margin was not necessary because the purpose of the law - which is to avoid
the substitution of any of the sheets of the will, thereby changing the testator's dispositions - has
already been accomplished. We may say the same thing in connection with the will under consideration
because while the three instrumental witnesses did not sign immediately after the attestation clause,
the fear entertained by the majority that it may have been only added on a subsequent occasion and
not at the signing of the will, has been obviated by the uncontradicted testimony of said witnesses to
the effect that such attestation clause was already written in the will when the same was signed.

The following observation made by this court in the Abangan case is very fitting:

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

We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of
wills, the purpose of which, in case of doubt, is to give such interpretation that would have the effect of
preventing intestacy (articles 788 and 791, New Civil Code).

I am therefore of the opinion that the will in question should be admitted to probate.

Feria, J., concurs.

TUASON, J., dissenting:

I concur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision erroneously
sets down as a fact that the attestation clause was not signed, when the witnesses' signatures appear on
the left margin and the real and only question is whether such signatures are legally sufficient.

The only answer, in our humble opinion, is yes. The law on wills does not provide that the attesting
witness should sign the clause at the bottom. In the absence of such provision, there is no reason why
signatures on the margin are not good. A letter is not any the less the writer's simply because it was
signed, not at the conventional place but on the side or on top.

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([1953V115E] Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs.
PELAGIO CAGRO, ET AL., oppositors-appellants., G.R. No. L-5826, 1953 Apr 29, En Banc)

Celso Icasiano v. Natividad Icasiano, et al., L-18979, June 30, 1964


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[1964V224E] IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTA. CELSO
ICASIANO, petitioner-appellee, vs. NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositorsappellants.1964 Jun 30En BancG.R. No. L-18979D E C I S I O N

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its
duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte,
deceased, and appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to
probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
Chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to which
proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine
Trust Company as special administrator.
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his
own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June
1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the
decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959.
On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint
opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959,
the court admitted said petition; and on July 30, 1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective evidence, and after several hearings the
court issued the order admitting the will and its duplicate to probate. From this order, the oppositors
appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the
same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila
on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street,
Manila, published before and attested by three instrumental witnesses, namely; attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Dr. Vinicio B. Diy; that the will was acknowledged by the testatrix
and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong,
Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin
Samson, who was also present during the execution and signing of the decedent's last will and
testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano, and a little
girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament
attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both testified as
to the due execution and authenticity of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also attorney Fermin Samson, who actually
prepared the document. The latter also testified upon cross examination that he prepared one original
and two copies of Josefa Villacorte's last will and testament at his house in Baliuag, Bulacan, but he
brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the filing of
the petition and marked as Exhibit "A", consists of five pages, and while signed at the end and in every
page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page
three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and

marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every
page.
The testimony presented by the proponents of the will tends to show that the original of the will and its
duplicate were subscribed at the end and on the left margin of each and every page thereof by the
testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing signature of attorney Natividad
on page three (3) of the original; that pages of the original and duplicate of said will were duly
numbered; that the attestation clause thereof contains all the facts required by law to be recited therein
and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and
spoken by the testatrix; that the attestation clause is in a language also known to and spoken by the
witnesses; that the will was executed on one single occasion in duplicate copies; and that both the
original and the duplicate copy were duly acknowledged before Notary Public Jose Oyengco Ong of
Manila on the same date June 2, 1956.
Witness Natividad, who testified on his failure to sign page three (3) of the original, admits that he may
have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was
signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit A-1) are not genuine, nor were they written or affixed on the same
occasion as the original, and further aver that granting that the documents were genuine, they were
executed through mistake and with undue influence and pressure because the testatrix was deceived
into adopting as her last will and testament the wishes of those who will stand to benefit from the
provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of
the will and the provisions and dispositions thereof, whereby proponents- appellees stand to profit from
properties held by them as attorneys- in-fact of the deceased and not enumerated or mentioned
therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the
will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free
disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both
original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the
same occasion, in the presence of the three attesting witnesses, the notary public who acknowledged
the will, and Atty. Samson, who actually prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read
to and by the testatrix and Atty. Fermin Samson together before they were actually signed; that the
attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appealing in the
duplicate original were not written by the same hand, which wrote the signatures in the original will
leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the
proponents, but principally because of the paucity of the standards used by him to support the
conclusion that the differences between the standard and questioned signatures are beyond the writer's
range of normal scriptural variation. The expert has, in fact, used as standards only three other
signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel
that with so few standards the expert's opinion that the signatures in the duplicate could not be those of
the testatrix becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3
and 4 fail to show convincingly that there are radical differences that would justify the charge of forgery,
taking into account the advanced age of the testatrix, the evident variability of her signatures, and the

effect of writing fatigue, the duplicate being signed right after the original. These factors were not
discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering that standard and challenged writings were affixed to different
kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the
testimony of the oppositor's expert sufficient to overcome that of the notary and the two instrumental
witnesses, Torres and Natividad (Dr. Diy, being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more
favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163;
Pecson vs. Coronel, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament;
otherwise, the decedent might as well die intestate. The testamentary disposition that the heirs should
not inquire into other property and that they should respect the distribution made in the will, under
penalty of forfeiture of their shares in the free part, do not suffice to prove fraud or undue influence.
They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary
experience, often results in a sizeable portion of the estate being diverted into the hands of non- heirs
and speculators. Whether these clauses are valid or not is a matter to be litigated on another occasion.
It is also well to note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168,
fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for
opposing probate shows absence of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one
page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se
sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the
fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix
and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose conduct she had no control,
where the purpose of the law to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests
to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil vs. Murciano, 88
Phil. 260; 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by
muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown
by his own testimony as well as by the duplicate copy of the will, which bears a complete set of
signatures in every page. The text of the attestation clause and the acknowledgment before the Notary
Public likewise evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal
tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator
and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil.
476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to
mark the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429).
These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order
to guard against fraud and bad faith but without undue or unnecessary curtailment of the testamentary
privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate
(Exh. A-1) is not entitled to probate. Since they opposed probate of the original because it lacked one
signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma: if
the original is defective and invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the
objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate,
said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the
original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not
affect the jurisdiction of the probate court, already conferred by the original publication of the petition
for probate. The amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests
were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly
notified of the proposed amendment. It is nowhere proved or claimed that the amendment deprived
the appellants of any substantial right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala, and Makalintal, JJ.,
concur.
Barrera and Dizon, JJ., took no part.

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([1964V224E] IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTA. CELSO
ICASIANO, petitioner-appellee, vs. NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositorsappellants., G.R. No. L-18979, 1964 Jun 30, En Banc)

Ajero v. CA, 55 SCAD 352 (1994)


/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\
[1994V578] SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF APPEALS AND
CLEMENTE SAND, respondents.1994 Sep 152nd DivisionG.R. No. 106720D E C I S I O N

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840,
dated March 30, 1992, the dispositive portion of which reads:
"PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs."
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and
the instrument submitted for probate is the holographic will of the late Annie Sand, who died on
November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand,
and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's
holographic will. They alleged that at the time of its execution, she was of sound and disposing mind,
not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's body nor the
signature therein was in decedent's handwriting; it contained alterations and corrections which were
not duly signed by decedent; and, the will was procured by petitioners through improper pressure and
undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in
the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could
not be conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It
found, inter alia:
"Considering then that the probate proceedings herein must decide only the question of identity of the
will, its due execution and the testamentary capacity of the testatrix, this probate court finds no reason
at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor
for lack of testamentary capacity of the testatrix.
"For one, no evidence was presented to show that the will in question is different from the will actually
executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not
written in the handwriting of the testatrix which properly refers to the question of its due execution,
and not to the question of identity of will. No other will was alleged to have been executed by the
testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity
of the will presented for probate must be accepted, i.e., the will submitted in Court must be deemed to
be the will actually executed by the testatrix.
"xxx

xxx

xxx

"While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been
disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in
question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3)

witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been
presented and have explicitly and categorically identified the handwriting with which the holographic
will in question was written to be the genuine handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and
signed in the handwriting of the testatrix has been complied with.
"xxx

xxx

xxx

"As to the question of the testamentary capacity of the testatrix, (private respondent) Clemente Sand
himself has testified in Court that the testatrix was completely in her sound mind when he visited her
during her birthday celebration in 1981, at or around which time the holographic will in question was
executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making
the will, knew the value of the estate to be disposed of, the proper object of her bounty, and the
character of the testamentary act . . . The will itself shows that the testatrix even had detailed
knowledge of the nature of her estate. She even identified the lot number and square meters of the lots
she had conveyed by will. The objects of her bounty were likewise identified explicitly. And considering
that she had even written a nursing book which contained the law and jurisprudence on will and
succession, there is more than sufficient showing that she knows the character of the testamentary act.
"In this wise, the question of identity of the will, its due execution and the testamentary capacity of the
testatrix has to be resolved in favor of the allowance of probate of the will submitted herein.
"Likewise, no evidence was presented to show sufficient reason for the disallowance of herein
holographic will. While it was alleged that the said will was procured by undue and improper pressure
and influence on the part of the beneficiary or of some other person, the evidence adduced have not
shown any instance where improper pressure or influence was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of
the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also established
that she is a very intelligent person and has a mind of her own. Her independence of character and to
some extent, her sense of superiority, which has been testified to in Court, all show the unlikelihood of
her being unduly influenced or improperly pressured to make the aforesaid will. It must be noted that
the undue influence or improper pressure in question herein only refer to the making of a will and not
as to the specific testamentary provisions therein which is the proper subject of another proceeding.
Hence, under the circumstances, this Court cannot find convincing reason for the disallowance of the
will herein.
"Considering then that it is a well-established doctrine in the law on succession that in case of doubt,
testate succession should be preferred over intestate succession, and the fact that no convincing
grounds were presented and proven for the disallowance of the holographic will of the late Annie Sand,
the aforesaid will submitted herein must be admitted to probate." 3 (Emphasis omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed.
The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." 4
It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as
follows:

"Article 813: When a number of dispositions appearing in a holographic will are signed without being
dated, and the last disposition has a signature and date, such date validates the dispositions preceding
it, whatever be the time of prior dispositions."
"Article 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator
must authenticate the same by his full signature."
It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not
dated. It also found that the erasures, alterations and cancellations made thereon had not been
authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any of the following
cases:
"(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution;
(c ) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or
of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his signature thereto."
In the same vein, Article 839 of the New Civil Code reads:
"Article 839: The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its
execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of
some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at
the time of affixing his signature thereto."

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a
holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is,
indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with
the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at
the time the will was executed; and, (4) whether the execution of the will and its signing were the
voluntary acts of the decedents. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in
accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
"The object of the solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial
ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded."
For purposes of probating non-holographic wills, these formal solemnities include the subscription,
attestation, and acknowledgment requirements under Articles 8105 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement that
they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of
the New Civil Code, thus:
"A person may execute a holographic will which must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and
need not be witnessed." ( mphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the
provisions of Article 814. In the case of Kalaw vs. Relova, 132 SCRA 237, 242 (1984), this Court held:
"Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave
an identical commentary when he said 'la omision de la salvedad no anula el testamento, segun la regla
de jurisprudencia establecida en la sentencia de 4 de Abril de 1895.'" 8 (Emphasis omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the
holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The
lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic
wills are taken. They read as follows:
"Article 678: A will is called holographic when the testator writes it himself in the form and with the
requisites required in Article 688.
"Article 688: Holographic wills may be executed only by persons of full age.
"In order that the will be valid it must be drawn on stamped paper corresponding to the year of its
execution, written in its entirety by the testator and signed by him, and must contain a statement of the
year, month and day of its execution.
"If it should contain any erased, corrected, or interlined words, the testator must identify them over his
signature.
"Foreigners may execute holographic wills in their own language."
This separation and distinction adds support to the interpretation that only the requirements of Article
810 of the New Civil Code ---- and not those found in Articles 813 and 814 of the same Code ---- are
essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and
lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the
will sought to be probated. However, in exceptional instances, courts are not powerless to do what the
situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench,
decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name
of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the
same in its entirety.). Thus, as correctly held by respondent court, she cannot validly dispose of the
whole property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV
No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of
the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the
Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988,
admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

ROSA K. KALAW vs. HON. JUDGE BENJAMIN RELOVA, and GREGORIO K. KALAW
/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\
[1984V432] 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.1984 Sep 281st DivisionG.R.
No. L-40207D E C I S I O N

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:
(INSERT PICTURE)
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, 1973, 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 will, 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 made by the testatrix, the denial to probate of her holographic Will would be contrary
to her right of testamentary disposition. Reconsideration was denied in an Order, dated November 2,
1973, on the ground that
"Article 814 of the Civil Code being clear and explicit, (it) requires no necessity for interpretation."
From that order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973
denying reconsideration, ROSA filed this Petition for Review on Certiorari on the sole legal question of
whether or not the original unaltered text after subsequent alterations and insertions were voided by
the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not,
with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined. 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 firma, 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 determina las condiciones necesarias para la
validez del testamento olografo, ya porque, de admitir lo contrario, se llegaria al absurdo de que
pequeas 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 armoniay 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, pero 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, sean de palabras que no afecten, alteren ni
varien de modo substancial la expresa 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
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September
3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.
Separate Opinions
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's
factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and instead
inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the testatrix in her
own handwriting (I find it peculiar that the testatrix who was obviously an educated person would
unthinkingly make such crude alterations instead of consulting her lawyer and writing an entirely new
holographic will 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 even 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 kin succeed to her intestate estate.

-----------Footnotes
1. Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Supreme Court of Spain of April 4,
1895.
2. Comentarios al Codigo Civil Espaol, Quinta edicion, Tomo 5, Lib, III - Tit. III - Cap. I - Art. 688; pag.
483.
3. Ibid.
\---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---/
([1984V432] 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., G.R. No. L-40207, 1984 Sep
28, 1st Division)

Gan v. Yap, 104 Phil. 509


/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\
[1958V289E] TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitionerappellant, vs. ILDEFONSO YAP, oppositor-appellee.1958 Aug 30En BancG.R. No. L-12190D E C I S I O N

BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo
Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first instance with a
petition for the probate of a holographic will allegedly executed by the deceased, substantially in these
words:
"Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang aking kayamanan
sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamaganakang sumusunod:
Vicente Esguerra, Sr.
Fausto E. Gan
Rosario E. Gan
Filomena Alto
Beatriz Alto

5 Bahagi
2 Bahagi
2 Bahagi
1 Bahagi
1 Bahagi

'At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana sa aking
asawang si Ildefonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na
nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang
aking pagalang Felicidad Esguerra-Alto. At kung ito ay may kakulagan man ay bahala na ang aking
asawa ang magpuno upang matupad ang aking kagustuhan.'
(Lagda) Felicidad E. Alto-Yap"
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any
will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused
to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by the
statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez,
whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente
Esguerra, her desire to make a will. She confided however that it would be useless if her husband
discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then
preparing for the bar examinations. The latter replied it could be done without any witness, provided
the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in
transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her
residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially
of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who
was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo
Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To
these she showed the will, again in the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she
entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse; and being afraid of him by reason of his wellknown violent temper, she- delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the
purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina
handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the
last time. 2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for
several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison,
Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States
wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting
interesting places, the couple returned to this country in August 1950. However, her ailment recurred,
she suffered several attacks, the most serious of which happened in the early morning of the first
Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the
teachers of the Harvardian Colleges occupying the lower floors and owned by the Yap spouses.

Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient
hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were
administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day,
her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons
swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important of
which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that
her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing
as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant
of the decedent it is hard to believe that the latter would have allowed the former to see and read the
will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario
Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a
secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her
husband she would carry it around, even to the hospital, in her purse which could for one reason or
another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in
the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without
destroying the will, the theory of the petitioner being precisely that the will was executed behind his
back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad
did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his
witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them,
were presented in the motion to reconsider; but they failed to induce the court a quo to change its
mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to
go over the same matters, because in our opinion the case should be decided not on the weakness of
the opposition but on the strength of the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permited the execution of holographic wills along with other forms. The Code of
Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other
forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "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."
This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which
for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible
witnesses in each and every page; such witnesses to attest to the number of sheets used and to the fact
that the testator signed in their presence and that they signed in the presence of the testator and of
each other.
The object of such requirements it has been said, is to close the door against bad faith and fraud, to
prevent substitution of wills, to guarantee their truth and authenticity (Abangan vs. Abangan, 40 Phil.,
476) and to avoid that those who have no right to succeed the testator would succeed him and be

benefited with the probate of same. (Mendoza vs. Pilapil, 40 off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs.
Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirement to be fulfilled when such will is submitted
to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would
be sufficient, if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available.
(Cabang vs. Delfinado 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742) From the testimony of such
witnesses (and of other additional witnesses) the court may form its opinion as to the genuineness and
authenticity of the testament, and the circumstances of its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as
stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by
the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as
material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to
be - or not to be - in the hands of the testator himself. "In the probate of a holographic will" says the
New Civil Code, "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 such witnesses shall be required. In the absence of any
such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert
testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will. They may
be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the
testator's hand. However, the oppositor may present other witnesses who also know the testator's
handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been written by the hand of the deceased.
(Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense,
and decide in the face of the document, whether the will submitted to it has indeed been written by the
testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of authenticity 3 - the testator's handwriting has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator?
How can the oppositor prove that such document was not in the testator's handwriting? His witnesses
who know testator's handwriting have not examined it. His experts can not testify, because there is no
way to compare the alleged testament with other documents admittedly, or proven to be, in the
testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of
knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity.
Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked
document, and having no interest to check the authenticity thereof have taken no pains to examine and
compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of
perjury, because no one could prove that they have not "been shown" a document which they believed
was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify
as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those

written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it?
His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his
statement: he has seen and read a document which he believed was in the deceased's handwriting. And
the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as
to the execution, but also as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or destroyed will by
secondary evidence - the testimony of witnesses, in lieu of the original document. Yet such Rules could
not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46,
Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it may be
lost or stolen 4 - an implied admission that such loss or theft renders it useless.
This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art.
689) who shall subscribe it and require its identity to be established by the three witnesses who depose
that they have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge
considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these,
imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires
that the surviving spouse and the legitimate ascendants and descendants be summoned so that they
may make "any statement they may desire to submit with respect to the authenticity of the will." As it is
universally admitted that the holographic will is usually done by the testator and by himself alone, to
prevent others from knowing either its execution or its contents, the above article 692 could not have
the idea of simply permitting such relatives to state whether they know of the will, but whether in the
face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will
itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with
the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated
when the document is not presented for their examination. If it be argued that such choice is not
essential, because anyway the relatives may oppose, the answer is that their opposition will be at a
distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right
which they should not be denied by withholding inspection thereof from them.
We find confirmation of these ideas - about exhibition of the document itself - in the decision of the
Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document
containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the
signature and some words having been torn from it. Even in the face of allegations and testimonial
evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid
tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole
and unmutilated, must be presented; otherwise, it shall produce no effect.
"Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del
Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por
testador, con expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y
eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se

otorgaron se llenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por
el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en
dichas condiciones en el momento de ser presentado a la Autoridad competente, para su adveracion y
protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de
validez y aficacia, por no estar firmado por el testador, cualquiera que sea la causa de la falta de firma, y
sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el
perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir
dicha omision un defecto insubsanable . . . ."
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the
Spanish Civil Code provisions on the matter. 6
"PRECEDENTES LEGALES - Fuero Juzgo, libro segundo, titulo V, ley 15 - E depues que los herederos e sus
fijos ovieren esta manda, fasta . . . annos muestrenla al obispo de la tierra, o al juez fasta Vl meses y el
obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la
manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que
todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda
otra vez, y en esta manera vala la manda." (Art. 689, Scaevola - Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in accordance
with his holographic will, unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will
to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555)
Taking all the above circumstances together, we reach the conclusion 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. 8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a
Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may
rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills,
ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the
nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second,
the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the
holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing
witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the
particular day, the likelihood that they would be called by the testator, their intimacy with the testator,
etc. And if they were intimates or trusted friends of the testator they are not likely to lend themselves to

any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account
of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could
engineer the whole fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and read the
forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith
affirm its genuineness and authenticity. The will having been lost - the forger may have purposely
destroyed it in an "accident" - the oppositors have no way to expose the trick and the error, because the
document itself is not at hand. And considering that the holographic will may consist of two or three
pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the
most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature - feasibility of
forgery - would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman
and Valverde and other well-known Spanish Commentators and teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the
case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which
they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the
oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's
disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to
believe that the deceased should show her will precisely to relatives who had received nothing from it:
Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share,
or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she
wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries?
Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the
alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think
the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it
fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and
Felix, JJ., concur.
--------------Footnotes
1. Now a member of the Court of Appeals.
2. The contents of the alleged will are for the purposes of this decision, immaterial.

3. "Una forma de testamento" (holographic will) "en la que toda la garantia consiste en la letra del
testador." (Seaevola, Codigo Civil, Tomo 12, p. 348.).
4. V. Sanchez Roman, Derecho Civil (2nd Ed.) (1910) Vol. 6 pp. 343, 350; Castan, Derecho Civil Espaol
(1944) Tomo 4 p. 337; Valverde, Derecho Civil (1939) Vol. 5, p. 77.
5. V. Sanchez Roman Op. Cit. Vol. 6, p. 357.
6. Manresa, Codigo Civil, 1932, Vol. 5, p. 481.
7. We have no doubt that this concept and these doctrines concerning the Spanish Civil Code apply to
our New Civil Code, since the Commission in its Report (p. 52) merely "revived" holographic wills, i.e.,
those known to the Spanish Civil Law, before Act 190.
8. 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.
9. We are aware of some American cases that admitted lost holographic wills, upon verbal testimony.
(Sec. 41, American Law Reports, 2d. pp. 413, 414.) But the point here raised was not discussed. Anyway
it is safer to follow, in this matter, the theories of the Spanish law.
10. Justice Jose B. L. Reyes, professor of Civil Law, makes this Comment:
"Holographic wills are peculiarly dangerous in case of persons who have written very little. The
validity of these wills depends, exclusively on the authenticity of handwriting, and if writing standards
are not procurable, or not contemporaneous, the courts are left to the mercy of the mendacity of
witnesses. It is questionable whether the recreation of the holographic testament will prove wise."
(Lawyer's Journal, Nov. 30, 1950, pp. 556-557.)
11. Intestate of Suntay, 50 Off. Gaz., 5321.
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([1958V289E] TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN,
petitioner-appellant, vs. ILDEFONSO YAP, oppositor-appellee., G.R. No. L-12190, 1958 Aug 30, En Banc)

Rodelas v. Aranza, et al. L-58509, Dec. 7, 1982


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[1982V688] 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.1982 Dec 71st DivisionG.R. No. L-58509D E C I S I O N

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.
As found by the Court of Appeals:
". . . 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 holographic will itself, and not an alleged copy thereof, must be produced, otherwise
it would produce no effect, as held in Gan 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:
'. . . 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.
'In the case of Gan 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.

'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 can not 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 Gan 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.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

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([1982V688] 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., G.R. No. L-58509, 1982 Dec 7, 1st Division)

Bolonan v. Abellana, et al., L-15153, Aug. 31, 1960


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[1960V331E] In the matter of the summary settlement of the Estate of the deceased Anacleta Abellana.
LUCIO BALONAN, petitioner-appellee, vs. EUSEBIA ABELLANA, ET AL., oppositors-appellants.1960 Aug
31En BancG.R. No. L-15153D E C I S I O N

LABRADOR, J.:

Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of
one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the following
assignment of error is made:
"The appellants respectfully submit that the Trial Court erred in holding that the supposed testament,
Exh. 'A', was signed in accordance with law; and in admitting the will to probate."
In view of the fact that the appeal involves a question of law the said court has certified the case to us.
The facts as found by the trial court are as follows:
"It appears on record that the last Will and Testament (Exhibit 'A'), which is sought to be probated, is
written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record)
double space. The first page is signed by Juan Bello and under his name appears typewritten 'Por la
testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga',
and on the second page appears the signature of the three (3) instrumental witnesses Blas Sebastian,
Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos
and below his signature is his official designation as the notary public who notarized the said testament.
On the first page on the left margin of the said instrument also appear the signatures of the
instrumental witnesses. On the second page, which is the last page of the said last Will and Testament,
also appears the signature of the three (3) instrumental witnesses and on that second page on the left
margin appears the signature of Juan Bello under whose name appears handwritten the following

phrase, 'Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public,
Attorney Timoteo de los Santos." ( talics supplied.)
The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the
typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the
requirements of the law prescribing the manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in part provides as follows:
"Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person in his presence, and by his express direction,
and attested and subscribed by three or more credible witnesses in the presence of the testator and of
one another." ( talics supplied.)
The clause "must be subscribed at the end thereof by the testator himself or by the testator's name
written by some other person in his presence and by his express direction," is practically the same as the
provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows:
"No will, except as provided in the preceding section shall be valid to pass any estate, real or personal,
nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's
name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of each other. . . ."
talics supplied)
Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do
so, the testator's name must be written by some other person in his presence and by his express
direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., 4 Phil., 700:
"It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the
testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting
witnesses signs the will at the testator's request, the notary certifying thereto as provided in article 695
of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is
necessary that the testator's name be written by the person signing in his stead in the place where he
would have signed if he knew how or was able so to do, and this in the testator's presence and by his
express direction; so that a will signed in a manner different than that prescribed by law shall not be
valid and will not be allowed to be probated.
"Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be
signed in the following manner:
'John Doe by the testator, Richard Roe; or in this form: 'By the testator, John Doe, Richard Roe.' All this
must be written by the witness signing at the request of the testator.
"Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of
the will the full name of the testator and his own name in one of the forms given above. He did not do
so, however, and this failure to comply with the law is a substantial defect which affects the validity of
the will and precludes its allowance, notwithstanding the fact that no one appeared to oppose it."
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of Barut vs.
Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of
the testatrix was signed at her express direction; it is unimportant whether the person who writes the

name of the testatrix signs his own or not. Cases of the same import are as follows: (Ex Parte Juan
Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).

In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by
said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express
requirement in the law that the testator must himself sign the will, or that his name be affixed thereto
by Some other person in his presence and by his express direction.
It appearing that the above provision of the law has not been complied with, we are constrained to
declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.
Wherefore, the decision appealed from is hereby set aside and the petition for the probate of the will
denied. With costs against petitioner.
Pars, C.J., Bengzon, Padilla, Concepcin, Reyes, J.B.L., Barrera, Gutierrez David, and Dizon, JJ., concur.

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([1960V331E] In the matter of the summary settlement of the Estate of the deceased Anacleta Abellana.
LUCIO BALONAN, petitioner-appellee, vs. EUSEBIA ABELLANA, ET AL., oppositors-appellants., G.R. No. L15153, 1960 Aug 31, En Banc)

Guison v. Concepcion, 5 Phil. 551


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[1906V30] TOMAS GUISON, petitioner-appellant, vs. MARIA CONCEPCION, respondent.1906 Jan 19En
BancG.R. No. 2586D E C I S I O N

WILLARD, J.:
Jacoba Concepcion Salcedo made her will in Manila, on January 3, 1904. The last part of the will is as
follows:

"Asi lo otorgo ante los testigos Seores Ambrosio Reyes, Mariano de Leon y Felix Polintan, de Manila,
Islas Filipinas, y por no yo poder firmar, firma a mi ruego el mismo Feliciano Maglaqui, en mi presencia y
de los mencionados testigos, quienes tambien suscriben, cada uno de ellos en presencia de los otros y la
mia.
"(Firmado)----FELICIANO MAGLAQUI.
"(Firmado)----AMBROSIO REYES.
"(Firmado)----MARIANO DE LEON.
"(Firmado)----FELIX POLINTAN.
"Nosotros Ambrosio Reyes, Mariano de Leon y Felix Polintan, atestiguamos que Filiciano Maglaqui, a
ruego de la Sra. Jacoba Concepcion Salcedo y en presencia de la misma y la nuestra, firmo el testamento
que antecede; y que cada uno de nosotros lo firmo en presencia de los otros y de dicha testadora.
"Manila, tres de Enero de mil novecientos cuatro.
"(Firmado)----AMBROSIO REYES.
"(Firmado)----MARIANO DE LEON.
"(Firmado)----FELIX POLINTAN."
It will be seen that the witness Feliciano Maglaqui, instead of writing the name of the testatrix on the
will, wrote his own. Probate of the will was refused in the court below on the ground that the name of
the testatrix was not signed thereto, and the petitioner has appealed. The question presented has been
decided adversely to the appellant in the following cases: Ex parte Pedro Arcenas et al., 1 No. 1708,
August 24, 1905 (4 Off. Gaz., 568); Ex parte Nemesio Delfin Santiago, 2 No. 2002, August 18, 1905 (4 Off.
Gaz., 507.)
The judgment of the court below is affirmed, with the costs of this instance against the appellant, and
after the expiration of twenty days judgment should be entered in accordance herewith and the case
remanded to the court below for execution. So ordered.
Arellano, C.J., Mapa, Johnson and Carson, JJ., concur.
--------------Footnotes
1. 4 Phil. Rep., 700.
2. 4 Phil. Rep., 692.
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([1906V30] TOMAS GUISON, petitioner-appellant, vs. MARIA CONCEPCION, respondent., G.R. No. 2586,
1906 Jan 19, En Banc)

Diaz v. De Leon, 43 Phil. 413


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[1922V93] In the matter of the estate of Jesus de Leon. IGNACIA DIAZ, petitioner-appellant, vs. ANA DE
LEON, opponent-appellee.1922 May 311st DivisionG.R. No. L-17714D E C I S I O N

ROMUALDEZ, J.:
The only question raised in this case is whether or not the will executed by Jesus de Leon, now
deceased, was revoked by him.
The petitioner denies such revocation, while the contestant affirms the same by alleging that the
testator revoked his will by destroying it, and by executing another will expressly revoking the former.
We find that the second will Exhibit 1 executed by the deceased is not clothed with all the necessary
requisites to constitute a sufficient revocation.
But according to the statute governing the subject in this jurisdiction, the destruction of a will with
animo revocandi constitutes, in itself, a sufficient revocation. ( Sec 623, Code of Civil Procedure.)
From the evidence submitted in this case, it appears that the testator, shortly after the execution of the
first will in question, asked that the same be returned to him. The instrument was returned to the
testator who ordered his servant to tear the document. This was done in his presence and before a
nurse who testified to this effect. After some time, the testator, being asked by Dr. Cornelio Mapa about
the will, said that it had been destroyed.
The intention of revoking the will is manifest from the established fact that the testator was anxious to
withdraw or change the provisions he had made in his first will. This fact is disclosed by the testator's
own statement to the witnesses Canto and the Mother Superior of the Hospital where he was confined.
The Original will herein presented for probate having been destroyed with animo revocandi, cannot now
be probated as the will and last testament of Jesus de Leon.
Judgment is affirmed with costs against the petitioner. So ordered.
Araullo, C.J., Malcolm, Avancea, Ostrand, and Johns, JJ., concur.
Villamor, J., did not take part.
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([1922V93] In the matter of the estate of Jesus de Leon. IGNACIA DIAZ, petitioner-appellant, vs. ANA DE
LEON, opponent-appellee., G.R. No. L-17714, 1922 May 31, 1st Division)

De Molo v. Molo, et al., L-2538, Sep. 21, 1951


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[1951V272E] Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO,
petitioner-appellee, vs. LUZ, GLICERIA and CORNELIO MOLO, oppositor-appellants.1951 Sep 21En
BancG.R. No. L-2538D E C I S I O N

BAUTISTA ANGELO, J.:


This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will
and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositorsappellants brought the case on appeal to this Court for the reason that the value of the properties
involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal,
without leaving any forced heir either in the descending or ascending line. He was survived, however, by
his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositorsappellants, 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 latter will
contains a clause which expressly revokes the will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo filed in the Court of First Instance of Rizal a petition,
which was docketed as special proceeding No. 8022, seeking the probate of the will executed by the
deceased on June 20, 1939. There being no opposition, the will was probated. However, upon petition
filed by the herein oppositors, the order of the court admitting the will to probate was set aside and the
case was reopened. After hearing, at which both parties presented their evidence, the court rendered
decision denying the probate of said will on the ground that the petitioner failed to prove that the same
was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed
another petition for the probate of the will executed by the deceased on August 17, 1918, which was
docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an opposition
to the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate of
the will of 1918; (2) that said will has not been executed in the manner required by law and (3) that the
will has been subsequently revoked. But before the second petition could be heard, the battle for
liberation came and the records of the case were destroyed. Consequently, a petition for reconstitution

was filed, but the same was found to be impossible because neither petitioner nor oppositors could
produce the copies required for its reconstitution. As a result, petitioner filed a new petition on
September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition based on
the same grounds as those contained in their former opposition. Then, the case was set for trial, and on
May 28, 1948, the court issued an order admitting the will to probate as 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 1918.
"II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate
of Molo's alleged will of 1918.
"III. The lower court erred in not holding that petitioner herein has come to court with `unclean hands'
and as such is not entitled to relief.
"IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.
"V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by
Molo himself.
"VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the
decedent's will of 1939."
In their first assignment of error, counsel for oppositors contend that the probate court erred in not
holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20,
1939, in order to enable her to obtain the probate of the will executed by the deceased on August 17,
1918, pointing out certain facts and circumstances which in their opinion indicate that petitioner
connived with witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will
because of her knowledge that said will was intrinsically defective in that "the one and only
testamentary disposition thereof was a `disposicin 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 deceased.
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 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 rehearing has also been explained, and it
appears that petitioner has failed because his whereabouts could not be found. Whether this is true or
not is not 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 take 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 the will had not been executed as required by law. After the evidence of both parties
had been presented, the oppositors filed an extensive memorandum wherein they reiterated their view
that the will should be denied probate. And on the strength of this opposition, the court disallowed the
will.
If petitioner then knew that the 1939 will was inherently defective and would make the testamentary
disposition in her favor invalid and ineffective, because it is a "disposicin captatoria", which knowledge
she may easily acquire through consultation with a lawyer, there was no need for her to go through the
ordeal 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 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 to petitioner simply because she exerted every
effort to protect her own interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the second and
third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty of
estoppel which would prevent her from seeking the probate of the 1918 will simply because her effort
to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills she

was instituted 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 for being
zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in the 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 will 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 in that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson case and 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 why 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 there are many cases which uphold the view entertained by counsel for oppositors, and that view
appears to be controlling in 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 on
the subject of revocation of wills. But the impression we gathered from a review and 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 prior 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 nontestamentary 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 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 (1935) 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 abandoning it as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of Civil Procedure) provides that a will may be
revoked "by some will, codicil, or other writing executed as provided 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 contend 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
revocatory clause contained in said will, himself deliberately destroyed the original of the 1918 will, and

that for this 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 left to mere inference or conjecture.
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 some reason. The doctrine is not 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.:. 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 the 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 the new testamentary disposition,
upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive
condition, and hence prevents the revocation of the original will. But a mere intent to make at some

time a will in 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. 233.)
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 occasions 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.
Paras, C.J., Feria, Pablo, Bengzon, Tuason and Jugo, JJ., concur.
Reyes, J., concurs in the result.
\---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---/
([1951V272E] Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO,
petitioner-appellee, vs. LUZ, GLICERIA and CORNELIO MOLO, oppositor-appellants., G.R. No. L-2538,
1951 Sep 21, En Banc)

ORALS CASES
Suroza v. Honrado
/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\
[1981V495] NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P. HONRADO of the Court of
First Instance of Rizal, Pasig Branch 25 and EVANGELISTA S. YUIPCO, Deputy Clerk of Court,
respondents.1981 Dec 192nd DivisionA.M. No. 2026D E C I S I O N

AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to probate a will,
which on its face is void because it is written in English, a language not known to the illiterate testatrix,
and which is probably a forged will because she and the attesting witnesses did not appear before the
notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the certiorari case in the Court
of Appeals which reveal the following tangled strands of human relationship.
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley,
married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a
boy named Agapito who used the surname Suroza and who considered them as his parents as shown in
his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654, p. 148, Rollo of
Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government.
That explains why on her death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad.
Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in
1953 when he was declared an incompetent in Special Proceedings No. 1807 of the Court of First
Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R)
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his
guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito
and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of
testate case)
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's
appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veteran's
hospital in San Francisco or Palo Alto, California (p. 87, Record)
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child
named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl
friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a
supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No. SP-08654-R).
Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito.

She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of
Marina Paje, a resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old.
That will, which is in English, was thumb marked by her. She was illiterate. Her letters in English to the
Veterans Administration were also thumb marked by her (pp. 38-39, CA Rollo). In that will, Marcelina
bequeathed all her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death,
she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter
lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate case)
On January 13, 1975, Marina Paje, alleged to be a laundry woman of Marcelina (p. 97, CA Rollo) and the
executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband),
filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's
alleged will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S.
Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before the
deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as administrative. On the following
day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the
Bank of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of
Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks,
to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy
sheriff to eject the occupants of the testratrix's house, among whom was Nenita V. Suroza, and to place
Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said
proceedings a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's
son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was
Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp.
52-68, Record of testate case). Later, they questioned the probate court's jurisdiction to issue the
ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were
claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein Marilyn
was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit
opposition with counter-petition of administration and preliminary injunction." Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed
and attested, that it was procured by means of undue influence employed by Marina and Marilyn and
that the thumb marks of the testatrix were procured by fraud or trick.

Nenita further alleged that the institution of Marilyn as heir was void because of the perpetration of
Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record)
To that motion was attached an affidavit of Zenaida A. Peaojas, the housemaid of Marcelina, who
swore that the alleged will was falsified (p. 109, Record)
Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus
motion to set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an opposition
to the probate of the will and a counter-petition for letters of administration. In that opposition, Nenita
assailed the due execution of the will and stated the names and addresses of Marcelina's intestate heirs,
her nieces and nephews (pp. 113-121, Record). Nenita was not aware of the decree of probate dated
April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who
swore that Marcelina never executed a will (pp. 124-125, Record)
Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not
Marcelina's grand daughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito
was not Marcelina's son but merely an anak-anakan who was not legally adopted (p. 143, Record)
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of
letters of administration because of the nonappearance of her counsel at the hearing. She moved for
the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza
reiterated her contention that the alleged will is void because Marcelina did not appear before the
notary and because it is written in English which is not known to her (pp. 208, 209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284,
Record)
Instead of appealing from that order and the order probating the will, Nenita "filed a case to annul" the
probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p.
398, Record), was also assigned to Judge Honrado. He dismissed it in his order of February 16, 1977 (pp.
398-402, Record)
Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the
estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12,1978, filed in this Court, Nenita
charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant
reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her
thumb mark to the will and that she did not know English, the language in which the will was written. (In
the decree of probate Judge Honrado did not make any
finding that the will was written in a language known to the testatrix)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named
Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not
take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix
did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was
not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to
withdraw from various banks the deposits of Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the
record of the probate case by alleging that it was useless for Nenita to oppose the probate since Judge
Honrado would not change his decision. Nenita also said that Evangeline insinuated that if she (Nenita)
had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly advised Nenita to
desist from claiming the properties of the testatrix because she (Nenita) had no rights thereto and,
should she persist, she might lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He
merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion
dated July 6, 1976 she asked for a thirty-day period within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not
mention Evangeline in her letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having
access to the record of the testamentary proceeding. Evangeline was not the custodian of the record.
Evangeline "strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline) said that the
sum of ten thousand pesos was needed in order that Nenita could get a favorable decision. Evangeline
also denied that she has any knowledge of Nenita's pension from the Federal Government.
The 1978 complaint against Judge Honrado was brought to the attention of this Court in the Court
Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of
the Court of Appeals for investigation, report and recommendation. He submitted a report dated
October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for
certiorari and prohibition wherein she prayed that the will, the decree of probate and all the
proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that
the testatrix and the three attesting witnesses did not appear before him and that he notarized the will
"just to accommodate a brother-lawyer on the condition," that said lawyer would bring to the notary
the testatrix and the witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to
do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No.
SP-08654, May 29. 1981)

Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his improper disposition
of the testate case which might have resulted in a miscarriage of justice because the decedent's legal
heirs and not the instituted heiress in the void will should have inherited the decedent's estate.
A judge may be criminally liable for knowingly rendering an unjust judgment or interlocutory order or
rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or
ignorance (Arts. 204 to 206, Revised Penal Code)
Administrative action may be taken against a judge of the court of first instance for serious misconduct
or inefficiency (Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error
of judgment. "For serious misconduct to exist, there must be reliable evidence showing that the judicial
acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent
disregard of well-known legal rules" (In re Impeachment of Horrilleno, 43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be
inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence
and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm.
Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was written in English and was
thumb marked by an obviously illiterate testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language "understood and known"
to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and
translated into Filipino language." (p. 16, Record of testate case) That could only mean that the will was
written in a language not known to the illiterate testatrix and, therefore, it is void because of the
mandatory provision of Article 804 of the Civil Code that every will must be executed in a language or
dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator,
is void and was disallowed (Acop vs. Piraso, 52 Phil. 660)
The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where
Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix."
Had respondent judge been careful and observant, he could have noted not only the anomaly as to the
language of the will but also that there was something wrong in instituting the supposed granddaughter
as sole heiress and giving nothing at all to her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could
have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally conducted the
hearing on the probate of the will so that he could have ascertained whether the will was validly
executed.

Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his
salary for one month is imposed on respondent judge (his compulsory retirement falls on December 25,
1981).
The case against respondent Yuipco has become moot and academic because she is no longer employed
in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao City. She is beyond
this Court's disciplinary jurisdiction (Peralta vs. Firme, Adm. Matter No. 2044-CFI, November 21, 1980,
101 SCRA 225)
SO ORDERED.
Barredo (Chairman), De Castro, Ericta and Escolin, JJ., concur. .
Abad Santos, J., took no part.
Concepcion Jr., J., on leave.
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([1981V495] NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P. HONRADO of the Court of
First Instance of Rizal, Pasig Branch 25 and EVANGELISTA S. YUIPCO, Deputy Clerk of Court,
respondents., A.M. No. 2026, 1981 Dec 19, 2nd Division)

Acop v. Piraso et al., 52 Phil. 660


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[1929V1E] In re estate of Piraso, deceased. SIXTO ACOP, petitioner-appellant, vs. SALMING PIRASO, ET
AL., appellees.1929 Jan 16En BancG.R. No. 28946D E C I S I O N

ROMUALDEZ, J.:

This appeal was taken from the judgment of the Court of First Instance of Benguet, denying the probate
of the instrument Exhibit A, as the last will and testament of the deceased Piraso.

The proponent-appellant assigns the following as alleged errors of the lower court:

"1.
In holding that in order to be valid the will in question should have been drawn up in the Ilocano
dialect.
"2.
In not holding that the testator Piraso did not know the Ilocano dialect well enough to
understand a will drawn up in said dialect.
"3.

In refusing to admit the will in question to probate."

The fundamental errors assigned refer chiefly to the part of the judgment which reads as follows:
"The evidence shows that Piraso knew how to speak the Ilocano dialect, although imperfectly, and could
make himself understood in that dialect, and the court is of the opinion that his will should have been
written in that dialect."
Such statements were unnecessary for the decision of the case, once it has been proved without
contradiction, that the said deceased Piraso did not know English, in which language the instrument
Exhibit A, alleged to be his will, is drawn. Section 618 of the Code of Civil Procedure, strictly provides
that:
"No will, except as provided in the preceding section" (as to wills executed by a Spaniard or a resident of
the Philippine Islands, before the present Code of Civil Procedure went into effect), "shall be valid to
pass any estate, real or personal, nor charge or affect the same, unless it be written in the language or
dialect known by the testator," etc. ( Parenthesis and italics ours. ) Nor can the presumption in favor of a
will established by this court in Abangan vs. Abangan (40 Phil., 476), to the effect that the testator is
presumed to know the dialect of the locality where he resides, unless there is proof to the contrary,
even be invoked in support of the probate of said document Exhibit A, as a will, because, in the instant
case, not only is it not proven that English is the language of the City of Baguio where the deceased
Piraso lived and where Exhibit A was drawn, but that the record contains positive proof that said Piraso
knew no other language than the Igorrote dialect, with a smattering of Ilocano; that is, he did not know
the English language in which Exhibit A is written. So that even if such a presumption could have been
raised in this case it would have been wholly contradicted and destroyed.
We consider the other questions raised in this appeal needless and immaterial to the adjudication of this
case, it having been, as it was, proven, that the instrument in question could not be probated as the last
will and testament of the deceased Piraso, having been written in the English language with which the
latter was unacquainted.
Such a result based upon solidly established facts would be the same whether or not it be technically
held that said will, in order to be valid, must be written in the Ilocano dialect; whether or not the
Igorrote or Inibaloi dialect is a cultivated language and used as a means of communication in writing,
and whether or not the testator Piraso knew the Ilocano dialect well enough to understand a will
written in said dialect. The fact is, we repeat, that it is quite certain that the instrument Exhibit A was
written in English, which the supposed testator Piraso did not know, and this is sufficient to invalidate
said will according to the clear and positive provisions of the law, and inevitably prevents its probate.
The judgment appealed from is affirmed, with the costs of this instance against the appellant. So
ordered.
Avancea, C.J., Malcolm, Villamor, Ostrand and Villa-Real, JJ., concur.

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([1929V1E] In re estate of Piraso, deceased. SIXTO ACOP, petitioner-appellant, vs. SALMING PIRASO, ET
AL., appellees., G.R. No. 28946, 1929 Jan 16, En Banc)

RIZALINA GABRIEL GONZALES vs. HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO
/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\

[1979V160] [1/2] RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE COURT OF APPEALS and
LUTGARDA SANTIAGO, respondents.

Francisco D. Rilloraza, Jr. for petitioners.1979 May 251st DivisionG.R. No. L-37453D E C I S I O N

GUERRERO, J:

This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on May
4, 1973 in CA-G. R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated
December 15, 1964 and allowed the probate of the last will and testament of the deceased Isabel
Gabriel.

It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the
Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will
alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner as the
principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue
in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of
eighty-five (85), having been born in 1876. It is likewise not controverted that herein private respondent
Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private
respondent, with her husband and children, lived with the deceased at the latter's residence prior and
up to the time of her death.

The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the
acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel
appear at the end of the will on page four and at the left margin of all the pages. The attestation clause,
which is found on page four, reads as follows:

"PATUNAY NG MGA SAKSI

"Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing
kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala, ipinaalam at
ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati
na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay
nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng
kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang
panig ng lahat at bawat dahon (and on the left hand margin of each and every page), sa harap ng lahat
at bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap
ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't
dahon ng testamentong ito."

At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia,
Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their
respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas,
Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other pages. The
will is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang
Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.

The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal
in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that
all her obligations, if any, be paid; that legacies in specified amounts be given to her sister, Praxides
Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud,
Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangelina, Rudyardo,
Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. The herein private respondent
Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na pamangkin na aking
pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal heir and
executor, were bequeathed all properties and estate, real or personal, already acquired, or to be
acquired, in her (testatrix's) name, after satisfying the expenses, debts and legacies as aforementioned.

The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document
purporting to be the will of the deceased on the following grounds:

1.that the same is not genuine; and in the alternative

2.that the same was not executed and attested as required by law;

3.that, at the time of the alleged execution of the purported will, the decedent lacked testamentary
capacity due to old age and sickness; and in the second alternative

4.that the purported will was procured through undue and improper pressure and influence on the part
of the principal beneficiary, and/or of some other person for her benefit.

Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial the court a quo
rendered judgment, the summary and dispositive portions of which read:

"Passing in summary upon the grounds advanced by the oppositor, this Court finds:

"1.That there is no iota of evidence to support the contention that the purported will of the deceased
was procured through undue and improper pressure and influence on the part of the petitioner, or of
some other person for her benefit;

"2.That there is insufficient evidence to sustain the contention that at the time of the alleged execution
of the purported will, the deceased lacked testamentary capacity due to old age and sickness;

"3.That sufficient and abundant evidence warrants conclusively the fact that the purported will of the
deceased was not executed and attested as required by law;

"4.That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F' is not
the purported will allegedly dictated by the deceased, executed and signed by her, and attested by her
three attesting witnesses on April 15, 1961.

"WHEREFORE, Exhibit 'F', the document presented for probate as the last will and testament of the
deceased Isabel Gabriel, is hereby DISALLOWED."

From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only
issue decided on appeal was whether or not the will in question was executed and attested as required
by law. The Court of Appeals, upon consideration of the evidence adduced by both parties, rendered the
decision now under review, holing that the will in question was signed and executed by the deceased
Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses, Matilde Orobia, Celso
Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the deceased and
of each other as required by law, 2 hence allowed probate.

Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such
motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter, parties submitted their
respective Memoranda, 5 and on August 28, 1973, respondent Court, Former Special First Division, by
Resolution 6 denied the motion for reconsideration stating that:

"The oppositor-appellee contends that the preponderance of evidence shows that the supposed last will
and testament of Isabel Gabriel was not executed in accordance with law because the same was signed
on several occasions, that the testatrix did not sign the will in the presence of all the instrumental
witnesses did not sign the will in the presence of each other.

"The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation
of the evidence. We have carefully re-examined the oral and documentary evidence of record. There is
no reason to alter the findings of fact in the decision of this Court sought to be set aside. 7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court
abused its discretion and/or acted without or in excess of its jurisdiction in reversing the findings of fact
and conclusions of the trial court. The Court, after deliberating on the petition but without giving due
course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment thereon,
which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the issues raised and
the arguments adduced in the petition, as well as the Comment 8 of private respondent thereon, We
denied the petition by Resolution on November 26, 1973, 9 the question raised being factual and for
insufficient showing that the findings of fact by respondent Court were unsupported by substantial
evidence.

Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed a Motion for
Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11 filed

on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved
to give due course to the petition.

The petitioner in her brief makes the following assignment of errors:

I.The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
attested as required by law when there was absolutely no proof that the three instrumental witnesses
were credible witnesses.

II.The Court of Appeals erred in reversing the finding of the lower court that the preparation and
execution of the will Exhibit "F", was unexpected and coincidental.

III.The Court of Appeals erred in finding that Atty. Paraiso was not previously furnished with the names
and residence certificates of the witnesses as to enable him to type such data into the document Exhibit
"F".

IV.The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.

V.The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel
Gabriel could have dictated the will, Exhibit "F", without any note or document, to Atty. Paraiso.

VI.The Court of Appeals erred in reversing the finding of the trial court that Matilde Orubia was not
physically present when the will, Exhibit "F" was allegedly signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.

VII.The Court of Appeals erred in holding that the trial court gave undue importance to the picture
takings as proof that the will was improperly executed.

VIII.The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.

IX.The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the
accepted and usual course of judicial proceedings, as to call for an exercise of the power of supervision.

X.The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit
"F", the alleged last will and testament of the deceased Isabel Gabriel.

It will be noted from the above assignments of errors that the same are substantially factual in character
and content. Hence, at the very outset, We must again state the oft-repeated and well-established rule
that in this jurisdiction, the factual findings of the Court of Appeals are not reviewable, the same being
binding and conclusive on this Court. This rule has been stated and reiterated in a long line of cases
enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202,
February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptista vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777,
November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said:

". . . from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has
been well-settled that the jurisdiction of this Court in cases brought to us from the Court of Appeals is
limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive.
More specifically, in a decision exactly a month later, this Court, speaking through the then Justice
Laurel it was held that the same principle is applicable, even if the Court of Appeals was in disagreement
with the lower court as to the weight of the evidence with a consequent reversal of its findings of fact. . .
.

Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are
not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be
disturbed by Us particularly because its premises are borne out by the record or based upon substantial
evidence and what is more, when such findings are correct. Assignments of errors involving factual
issues cannot be ventilated in a review of the decision of the Court of Appeals because only legal
questions may be raised. The Supreme Court is not at liberty to alter or modify the facts as set forth in
the decision of the Court of Appeals sought to be reversed. Where the findings of the Court of Appeals
are contrary to that of the trial court, a minute scrutiny by the Supreme Court is in order, and resort to
duly-proven evidence becomes necessary. The general rule We have thus stated above is not without
some recognized exceptions.

Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's
assignments of errors.

Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that
the document, Exhibit "F", was executed and attested as required by law when there was absolutely no
proof that the three instrumental witnesses were credible witnesses. She argues that the requirement in
Article 806, Civil Code, that the witnesses must be credible is an absolute requirement which must be
complied with before an alleged last will and testament may be admitted to probate and that to be a
credible witness, there must be evidence on record that the witness has a good standing in his
community, or that he is honest and upright, or reputed to be trustworthy and reliable. According to
petitioner, unless the qualifications of the witness are first established, his testimony may not be
favorably considered. Petitioner contends that the term "credible" is not synonymous with "competent"
for a witness may be competent under Article 820 and 821 of the Civil Code and still not be credible as
required by Article 805 of the same Code. It is further urged that the term "credible" as used in the Civil
Code should receive the same settled and well-known meaning it has under the Naturalization Law, the
latter being a kindred legislation with the Civil Code provisions on wills with respect to the qualifications
of witnesses.

We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from
being a witness to a will. These Articles state:

"Art. 820.Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or
dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805
of this Code.

"Art. 821.The following are disqualified from being witnesses to a will:

(1)Any person not domiciled in the Philippines,

(2)Those who have been convicted of falsification of a document, perjury or false testimony.

Under the law, there is no mandatory requirement that the witness testify initially or at any time during
the trial as to his good standing in the community, his reputation for trustworthiness and reliableness,
his honesty and uprightness in order that his testimony may be believed and accepted by the trial court.
It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such
that the soundness of his mind can be shown by or deduced from his answers to the questions
propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or
competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able
to read and write to the satisfaction of the Court, and that he has none of the disqualifications under
Article 821 of the Civil Code. We reject petitioner's contention that it must first be established in the

record the good standing of the witness in the community, his reputation for trustworthiness and
reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless
the contrary is proved otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code
should be given the same meaning it has under the Naturalization Law where the law is mandatory that
the petition for naturalization must be supported by two character witnesses who must prove their
good standing in the community, reputation for trustworthiness and reliableness, their honesty and
uprightness. The two witnesses in a petition for naturalization are character witnesses in that being
citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for the
period of time required by the Act and a person of good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and
is not in any way disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth
Act No. 473 as amended).

In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest
the execution of a will or testament and affirm the formalities attendant to said execution. And We
agree with the respondent that the rulings laid down in the cases cited by petitioner concerning
character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills
executed under the Civil Code of the Philippines.

In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification
of any of the said witnesses, much less has it been shown that anyone of them is below 18 years of age,
of unsound mind, deaf or dumb, or cannot read or write.

It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another. While the petitioner submits that
Article 820 and 821 of the New Civil Code speak of the competency of a witness due to his qualifications
under the first Article and none of the disqualifications under the second Article, whereas Article 805
requires the attestation of three or more credible witnesses, petitioner concludes that the term credible
requires something more than just being competent and, therefore, a witness in addition to being
competent under Articles 820 and 821 must also be a credible witness under Article 805.

Petitioner cites American authorities that competency and credibility of a witness are not synonymous
terms and one may be a competent witness and yet not a credible one. She exacerbates that there is no
evidence on record to show that the instrumental witnesses are credible in themselves, that is, that they
are of good standing in the community since one was a family driver by profession and the second the
wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and his
wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a
grandchild of the testatrix. But the relation of employer and employee much less the humble social or
financial position of a person do not disqualify him to be a competent testamentary witness. (MoloPekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March
18, 1941, p. 788).

Private respondent maintains that the qualifications of the three or more credible witnesses mentioned
in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious
from that portion of Article 820 which says "may be a witness to the execution of a will mentioned in
Article 805 of this Code," and cites authorities that the word "credible" insofar as witnesses to a will are
concerned simply means "competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme
Court held that "Granting that a will was duly executed and that it was in existence at the time of, and
not revoked before, the death of the testator, still the provisions of the lost will must be clearly and
distinctly proved by at least two credible witnesses. 'Credible witnesses' mean competent witnesses and
not those who testify to facts from or upon hearsay."

In Molo Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that
"Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of the
age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a
witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950,
under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a will,
does not disqualify one to be a witness to a will. The main qualification of a witness in the attestation of
wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness must
be credible, that is to say, his testimony may be entitled to credence. There is a long line of authorities
on this point, a few of which we may cite:

"A 'credible witness' is one who is not disqualified to testify by mental incapacity, crime, or other cause.
Historical Soc. of Dauphin County vs. Kelker, 74 A. 619, 226 Pa. 16, 134 Am. St. Rep. 1010." (Words and
Phrases, Vol. 10, p. 340).

"As construed by the common law, a 'credible witness' to a will means a 'competent witness.' Appeal of
Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837." (Ibid, p. 341).

"Expression 'credible witness' in relation to attestation of wills means 'competent witness'; that is, one
competent under the law to testify to fact of execution of will. Vernon's Ann. Civ. St. art. 8283. Moos vs.
First State Bank of Uvalde, Tex. Civ. App. 60 S. W. 2nd 888, 889." (Ibid, p. 342)

"The term 'credible', used in the statute of wills requiring that a will shall be attested by two credible
witnesses means competent; witnesses who, at the time of attesting the will, are legally competent to
testify, in a court of justice, to the facts attested by subscribing the will, the competency being
determined as of the date of the execution of the will and not of the time it is offered for probate. Smith
vs. Goodell, 101 N.E. 255, 266, 258 Ill. 145." (Ibid.)

"'Credible witnesses', as used in the statute relating to wills, means competent witnesses that is, such
persons as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity,
interest, or the commission of crimes, or other cause excluding them from testifying generally, or
rendering them incompetent in respect of the particular subject matter or in the particular suit. Hill vs.
Chicago Title & Trust co., 152 N.E. 545, 546, 322 Ill. 42." (Ibid. p. 343)

In the strict sense, the competency of a person to be an instrumental witness to a will is determined by
the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of
his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth.
Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3,
1968, the Supreme Court held and ruled that: "Competency as a witness is one thing, and it is another to
be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a
person to testify as a witness upon a given matter because he is competent, but may thereafter decide
whether to believe or not to believe his testimony."

In fine, We state the rule that the instrumental witnesses in order to be competent must be shown to
have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article
821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not
mandatory that evidence be first established on record that the witnesses have a good standing in the
community or that they are honest and upright or reputed to be trustworthy and reliable, for a person is
presumed to be such unless the contrary is established otherwise. In other words, the instrumental
witnesses must be competent and their testimonies must be credible before the court allows the
probate of the will they have attested. We, therefore, reject petitioner's position that it was fatal for
respondent not to have introduced prior and independent proof of the fact that the witnesses were
"credible witnesses", that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.

Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution of the

will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished with
the names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten
words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have
dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and the
other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed, and in holding that the
grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary)
presented by the petitioner had been explained away.

Since the above errors are factual, We must repeat what We have previously laid down that the findings
of fact of the appellate court are binding and controlling which We cannot review, subject to certain
exceptions which We will consider and discuss hereinafter. We are convinced that the appellate court's
findings are sufficiently justified and supported by the evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing all the
witnesses without previous appointment for the preparation and execution of the will and that it was
coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of Appeals
that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on
April 15, 1961 was unexpected as there was no prior appointment with him, but he explained that he
was available for any business transaction on that day and that Isabel Gabriel had earlier requested him
to help her prepare her will. The finding of the appellate court is amply based on the testimony of Celso
Gimpaya that he was not only informed on the morning of the day that he witnessed the will but that it
was the third time when Isabel Gabriel told him that he was going to witness the making of her will, as
well as the testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya to proceed
to Isabel Gabriel's house which was nearby and from said house, they left in a car to the lawyer's office,
which testimonies are recited in the respondent Court's decision.

The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya
obtained residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence
certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's
residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961. The respondent
Court correctly observed that there was nothing surprising in these facts and that the securing of these
residence certificates two days and one day, respectively, before the execution of the will on April 15,
1961, far from showing an amazing coincidence, reveals that the spouses were earlier notified that they
would be witnesses to the execution of Isabel Gabriel's will.

We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso
was planned by the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya
spouses that they started from the Navotas residence of the deceased with a photographer and Isabel

Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife, Quezon City to fetch
her and from there, all the three witnesses (the Gimpayas and Orobia) passed by a place where Isabel
Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to
Atty. Cipriano Paraiso's office.

It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that the will
was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will
and that he told her that if she really wanted to execute her will, she should bring with her at least the
Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso) wanted a
medical certificate from a physician notwithstanding the fact that he believed her to be of sound and
disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear
that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria
Gimpaya including the photographer in the law office of Atty. Paraiso was not coincidental as their
gathering was pre-arranged by Isabel Gabriel herself."

As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F",
which the petitioner assails as contradictory and irreconcilable with the statement of the Court that
Atty. Paraiso was handed a list (containing the names of the witnesses and their respective residence
certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was corroborated
by Atty. Paraiso himself who testified that it was only on said occasion that he received such list from
Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction for the
respondent Court held that on the occasion of the will-making on April 15, 1961, the list was given
immediately to Atty. Paraiso and that no such list was given the lawyer in any previous occasion or date
prior to April 15, 1961.

But whether Atty. Paraiso was previously furnished with the names and residence certificates of the
witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the attestation
clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit "F" is a notarial
will duly acknowledged by the testatrix and the witnesses before a notary public, the same is a public
document executed and attested through the intervention of the notary public and as such public
document is evidence of the facts in clear, unequivocal manner therein expressed. It has in its favor the
presumption of regularity. To contradict all these, there must be evidence that is clear, convincing and
more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed
by petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines
under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the

three attesting witnesses were all present in the same occasion merits Our approval because this
conclusion is supported and borne out by the evidence found by the appellate court, thus: "On page 5 of
Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.", "date issued" and "place issued"
the only name of Isabel Gabriel with Residence Tax Certificate No. A-5113274 issued on February 24,
1961 at Navotas, Rizal appears to be in typewritten form while the names, residence tax certificate
numbers, dates and places of issuance of said certificates pertaining to the three (3) witnesses were
personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be
made to close relatives; and the seventh was the appointment of the appellant Santiago as executrix of
the will without bond. The technical description of the properties in paragraph 5 of Exhibit F was not
given and the numbers of the certificates of title were only supplied by Atty. Paraiso."

It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the
docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were
supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have
dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel
Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a
brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after the
execution of Exhibit "F". While we can rule that this is a finding of fact which is within the competency of
the respondent appellate court in determining the testamentary capacity of the testatrix and is,
therefore, beyond Our power to revise and review, We nevertheless hold that the conclusion reached by
the Court of Appeals that the testatrix dictated her will without any note or memorandum appears to be
fully supported by the following facts or evidence appearing on record. Thus, Isabel Gabriel, despite her
age, was particularly active in her business affairs as she actively managed the affairs of the movie
business Isabelita Theater, paying the aparatistas herself until June 4, 1961, 3 days before her death. She
was the widow of the late Eligio Naval, former Governor of Rizal Province and acted as co-administratrix
in the Intestate Estate of her deceased husband Eligio Naval. The text of the will was in Tagalog, a dialect
known and understood by her and in the light of all the circumstances, We agree with the respondent
Court that the testatrix dictated her will without any note or memorandum, a fact unanimously testified
to by the three attesting witnesses and the notary public himself.

Petitioner's sixth assignment of error is also benefit of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses, Celso
Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus: "On the
contrary, the record is replete with proof that Matilde Orobia was physically present when the will was
signed by Isabel Gabriel on April 15, 1961 along with her co-witnesses Celso Gimpaya and Maria
Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons to the child of
the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for
which reason Orobia could not have been present to witness the will on that day is purely
conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child every
Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a Saturday,
she gave no piano lessons on that day for which reason she could have witnessed the execution of the

will. Orobia spoke of occasions when she missed giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and there
was nothing to preclude her from giving piano lessons on the afternoon of the same day in Navotas,
Rizal."

In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was
present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand
margin of each of the pages of the will, the documentary evidence which is the will itself, the attestation
clause and the notarial acknowledgment overwhelmingly and convincingly prove such fact that Matilde
Orobia was present on that day of April 15, 1961 and that she witnessed the will by signing her name
thereon and acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestation
clause which Matilde Orobia signed is the best evidence as to the date of signing because it preserves in
permanent form a recital of all the material facts attending the execution of the will. This is the very
purpose of the attestation clause which is made for the purpose of preserving in permanent form, a
record of the facts attending the execution of the will, so that in case of failure in the memory of the
subscribing witnesses, or other casualty they may still be proved.(Thompson on Wills, 2nd ed., Sec. 132;
Leynez vs. Leynez, 68 Phil. 745).

As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court
gave undue importance to the picture-takings as proof that the will was improperly executed, We agree
with the reasoning of the respondent court that: "Matilde Orobia's identification of the photographer as
"Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria Gimpaya) and Atty.
Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to
lapse of time. The law does not require a photographer for the execution and attestation of the will. The
fact that Miss Orobia mistakenly identified the photographer as Cesar Mendoza scarcely detracts from
her testimony that she was present when the will was signed because what matters here is not the
photographer but the photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses
Celso Gimpaya." Further, the respondent Court correctly held: "The trial court gave undue importance
to the picture-takings, jumping therefrom to the conclusion that the will was improperly executed. The
evidence however, heavily points to only one occasion of the execution of the will on April 15, 1961
which was witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses were quite
emphatic and positive when they spoke of this occasion. Hence, their identification of some
photographs wherein they all appeared along with Isabel Gabriel and Atty. Paraiso was superfluous."

Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at
the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the
first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was
admittedly no longer present was wholly unnecessary if not pointless. What was important was that the
will was duly executed and witnessed on the first occasion on April 15, 1961," and We agree with the
Court's rationalization in conformity with logic, law and jurisprudence which do not require picturetaking as one of the legal requisites for the execution or probate of a will.

Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their
respective testimonies before the trial court. On the other hand, the respondent Court of Appeals held
that said contradictions, evasions and misrepresentations had been explained away. Such discrepancies
as in the description of the typewriter used by Atty. Paraiso which he described as "elite" which to him
meant big letters which are of the type in which the will was typewritten but which was identified by
witness Jolly Bugarin of the N.B.I as "pica", the mistake in mentioning the name of the photographer by
Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr. these are indeed
unimportant details which could have been affected by the lapse of time and the treachery of human
memory such that by themselves would not alter the probative value of their testimonies on the true
execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the
testimony of every person will be identical and coinciding with each other with regard to details of an
incident and that witnesses are not expected to remember all details. Human experience teach us "that
contradictions of witnesses generally occur in the details of certain incidents, after a long series of
questionings, and far from being an evidence of falsehood constitute a demonstration of good faith.
Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that in
relating their impressions, they should not agree in the minor details; hence the contradiction in their
testimony." (Lopez vs. Liboro, 81 Phil. 429).

It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by
the respondent appellate court because the trial court was in a better position to weigh and evaluate
the evidence presented in the course of the trial. As a general rule, petitioner is correct but it is subject
to well-established exceptions. The right of the Court of Appeals to review, alter and reverse the findings
of the trial court where the appellate court, in reviewing the evidence has found that facts and
circumstances of weight and influence have been ignored and overlooked and the significance of which
have been misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial courts
particularly when they are based on conflicting evidence whose evaluation hinges on questions of
credibility of contending witnesses lies peculiarly within the province of trial courts and generally, the
appellate court should not interfere with the same. In the instant case, however, the Court of Appeals
found that the trial court had overlooked and misinterpreted the facts and circumstances established in
the record. Whereas the appellate court said that "Nothing in the record supports the trial court's
unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that the
trial court's conclusion that Matilde Orobia could not have witnessed anybody signing the alleged will or
that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she
witnessed only the deceased signing it, is a conclusion based not on facts but on inferences; that the
trial court gave undue importance to the picture-takings, jumping therefrom to the conclusion that the
will was improperly executed and that there is nothing in the entire record to support the conclusion of
the court a quo that the will-signing occasion was a mere coincidence and that Isabel Gabriel made an
appointment only with Matilde Orobia to witness the signing of her will, then it becomes the duty of the
appellate court to reverse findings of fact of the trial court in the exercise of its appellate jurisdiction
over the lower courts.

Still petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of
Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree
with the petitioner that among the exceptions are: (1) when the conclusion is a finding grounded
entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd
or impossible; (3) when there is a grave abuse of discretion; (4) when the presence of each other as
required by law. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel, together
with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car
to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that
on the way, Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko which she gave to Atty.
Paraiso upon arriving at the latter's office and told the lawyer that she wanted her will to be made; that
Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and the attorney
wrote down the dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her; that Atty.
Paraiso read back to her what he wrote as dictated and she affirmed their correctness; the lawyer then
typed the will and after finishing the document, he read it to her and she told him that it was alright;
that thereafter, Isabel Gabriel signed her name at the end of the will in the presence of the three
witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each
and every page of the document in the presence also of the said three witnesses; that thereafter
Matilde Orobia attested the will by signing her name at the end of the attestation clause and at the lefthand margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two
witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of
the attestation clause and at the left-hand margin of the other pages of the document in the presence of
Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name
at the foot of the attestation clause and at the left-hand margin of every page in the presence of Isabel
Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No.
94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the execution and attestation
of the will, a photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel
Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the
will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he had earlier advised
Isabel Gabriel to bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses
for he did not know beforehand the identities of the three attesting witnesses until the latter showed up
at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim-which was not controverted
that he wrote down in his own hand the date appearing on page 5 of Exhibit "F" dissipates any lingering
doubt that he prepared and ratified the will on the date in question."

It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could
have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by
the evidence on record as stated in the decision under review, thus: "Nothing in the record supports the
trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso.
On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will
to Atty. Paraiso and that other than the piece of paper that she handed to said lawyer she had no note
or document. This fact jibes with the evidence which the trial court itself believed was unshaken
that Isabel Gabriel was of sound disposing memory when she executed her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was
Isabel Gabriel's wish to be interred according to Catholic rites; the second was a general directive to pay
her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and
P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces
including oppositor-appellee Rizalina Gabriel and the amount for each legatee; the fifth was the
institution of the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general
terms seven (7) types of properties; the sixth disposed of the remainder of her estate which she willed in
favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in
extreme situations in which judgment is based on a misapprehension of facts; (5) when the findings of
fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee. (Roque vs. Buan, et al.,
G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967;
Hilario, Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).

Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate
court are fully supported by the evidence on record. The conclusions are fully sustained by substantial
evidence. We find no abuse of discretion and We discern no misapprehension of facts. The respondent
Court's findings of fact are not conflicting. Hence, the well-established rule that the decision of the Court
of Appeals and its findings of fact are binding and conclusive and should not be disturbed by this
Tribunal and it must be applied in the case at bar in its full force and effect, without qualification or
reservation. The above holding simply synthesizes the resolutions we have heretofore made in respect
to petitioner's previous assignments of error and to which We have disagreed and, therefore, rejected.

The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent
Court acted properly and correctly and has not departed from the accepted and usual course of judicial
proceedings as to call for the exercise of the power of supervision by the Supreme Court, and as We find
that the Court of Appeals did not err in reversing the decision of the trial court and admitting to probate
Exhibit "F", the last will and testament of the deceased Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence
on record is unassailable that: "From the welter of evidence presented, we are convinced that the will in
question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya signing and witnessing the same in the will on a table with Isabel Gabriel, Celso Gimpaya and
Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the notarial act, then delivered the
original to Isabel Gabriel and retained the other copies for his file and notarial register. A few days
following the signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at the
office of Atty. Paraiso and told the lawyer that she wanted another picture taken because the first
picture did not turn out good. The lawyer told her that this cannot be done because the will was already

signed but Isabel Gabriel insisted that a picture be taken, so a simulated signing was performed during
which incident Matilde Orobia was not present."

Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for
the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at
bar, the three instrumental witnesses who constitute the best evidence of the will-making have testified
in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law and long in
the practice thereof, who thereafter notarized it. All of them are disinterested witnesses who stand to
receive no benefit from the testament. The signatures of the witnesses and the testatrix have been
identified on the will and there is no claim whatsoever and by anyone, much less the petitioner, that
they were not genuine. In the last and final analysis, the herein conflict is factual and we go back to the
rule that the Supreme Court cannot review and revise the findings of facts of the respondent Court of
Appeals.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs
against the petitioner.

SO ORDERED.
Teehankee, Makasiar, De Castro and Herrera, JJ., concur.

Merza v. Porras
/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\
[1953V148E] JOSE MERZA, petitioner, vs. PEDRO LOPEZ PORRAS, respondent.1953 May 25En BancG.R.
No. L-4888D E C I S I O N

TUASON, J.:
This is an appeal from the Court of Appeals which affirmed an order of the Court of First Instance of
Zambales denying the probate of the last will and testament and a so-called codicil, identified as Exhibits
A and B, of Pilar Montealegre, deceased. The testatrix was survived by her husband and collateral
relatives, some of whom, along with the husband, were disinherited in Exhibit B for the reasons set forth
therein.
The opposition to Exhibit A was predicated on alleged defects of the attestation clause. Written in the
local dialect known to the testatrix, the attestation clause, as translated into English in the record on
appeal reads:
"The foregoing instrument consisting of three pages, on the date above-mentioned, was executed,
signed and published by testatrix Pilar Montealegre and she declared that the said instrument is her last
will and testament; that in our presence and also in the very presence of the said testatrix as likewise in
the presence of two witnesses and the testatrix each of us three witnesses signed this testament."
The opponent objected that this clause did not state that the testatrix and the witnesses had signed
each and every page of the will or that she had signed the instrument in the presence of the witnesses.
The Appellate Court dismissed the first objection, finding that "failure to state in the attestation clause
in question that the testatrix and/or the witnesses had signed each and every page of Exhibit A were
cured by the fact that each one of the pages of the instrument appears to be signed by the testatrix and
the three attesting witnesses (Nayve vs. Mojal, 47 Phil., 152, (1924); Ticson vs. Gorostiza, 57 Phil., 437,
(1932); Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl. (October 18, 1939), 510, 528; Rallos vs. Rallos, 44 Off.
Gaz., 4938, 4940)." But granting the correctness of the premise, the court held the second objection well
taken and thus concluded: "The question whether the testatrix had signed in the presence of said
witnesses can not be verified upon physical examination of the instrument. Hence, the absence of the
required statement in said clause may not, pursuant to the decisions of the Supreme Court, be offset by
proof aliunde even if admitted without objection."
The premise of this conclusion is, in our opinion, incorrect.
It must be admitted that the attestation clause was very poorly drawn, its language exceedingly
ungrammatical to the point of being difficult to understand; but from a close examination of the whole
context in relation to its purpose the implication seems clear that the testatrix signed in the presence of
the witnesses. Considering that the witnesses' only business at hand was to sign and attest to the
testatrix's signing of the document, and that the only actors in the proceeding were the maker and the
witnesses acting and speaking collectively and in the first person, the phrase "in our presence," used as
it was in connection with the process of signing, can not imply anything but that the testatrix signed

before them. No other inference is possible. The prepositional phrase "in our presence" denotes an
active verb and the verb a subject. The verb could be no other than signed and the subject no other than
the testatrix.
The use of the word "also" is no less enlightening. It denotes that, as each of the witnesses signed in the
presence of the testatrix and of one another, so the testatrix signed in similar or like manner - in their
presence.
In consonance with the principle of liberal interpretation, adhered to in numerous later decisions of this
Court and affirmed and translated into enactment in the new Civil Code (Article 827), we are
constrained to hold the attestation clause under consideration sufficient and valid.
"Precision of language in the drafting of the attestation clause is desirable. However, it is not imperative
that a parrot-like copy of the words of the statute be made. It is sufficient if from the language
employed it can reasonably be deduced that the attestation clause fulfills what the law expects of it."
(Ticson vs. Gorostiza, supra.)
"It could not have been the intention of the legislature in providing for the essential safeguards in the
execution of a will to shackle the very right of testamentary disposition which the law recognizes and
holds sacred." (Leynes vs. Leynes, supra.)
With reference to Exhibit B the Court of Appeals agreed with the trial court that the document having
been executed one day before Exhibit A could not be considered as a codicil "because a codicil, as the
word implies, is only an addition to, or modification of, the will." The Court of Appeals added that "the
contents of Exhibit B are couched in the language ordinarily used in a simple affidavit and as such, may
not have the legal effect and force of a testamentary disposition." Furthermore, the Court of Appeals
observed, disinheritance "may not be made in any instrument other than the will Exhibit A, as expressly
provided for in article 849 of the Civil Code," and, "there being no disposition as to the disinheritance of
the oppositor, Pedro Lopez Porras (the surviving spouse), in the said Exhibit A, it is quite clear that he
can not be disinherited in any other instrument including Exhibit B, which is, as above stated, a simple
affidavit."
Exhibit B does partake of the nature of a will. A will is defined in article 667 of the Civil Code of Spain as
"the act by which a person disposes of all his property or a portion of it," and in article 783 of the new
Civil Code as "an act whereby a person is permitted, with the formalities prescribed by law, to control to
a certain degree the disposition of his estate, to take effect after his death." Exhibit B comes within this
definition.
Being of testamentary character and having been made with all the formalities of law, Exhibit B is
entitled to probate as an independent testamentary disposition. In the absence of any legal provision to
the contrary - and there is none in this jurisdiction - it is the general, well-established rule that two
separate and distinct wills may be probated if one does not revoke the other (68 C. J., 885) and provided
that the statutory requirements relative to the execution of wills have been complied with (Id. 881). As
seen, Exhibit B embodies all the requisites of will, even free of such formal or literary imperfections as
are found in Exhibit A.
It also follows that Exhibit B is a legal and effective vehicle for excluding lawful heirs from testate or
intestate succession. Article 849 of the Civil Code of Spain does not, as the appealed decision seems to

insinuate, require that the disinheritance should be accomplished in the same instrument by which the
maker provides for the disposition of his or her property after his or her death. This article merely
provides that "disinheritance can be effected only by a will (any will) in which the legal cause upon
which it is based is expressly stated."
It is our judgment therefore that the instruments Exhibits A and B should be admitted to probate,
subject of course to the right of the disinherited person under article 850 to contest the disinheritance,
and it is so ordered, with costs against the appellee.
Paras, C.J., Feria, Bengzon, Bautista Angelo and Labrador, JJ., concur.
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([1953V148E] JOSE MERZA, petitioner, vs. PEDRO LOPEZ PORRAS, respondent., G.R. No. L-4888, 1953
May 25, En Banc)

Palacios v. Catimbang Palacios, L-12207 (Dec. 24, 1959)


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[1959V364E] JUAN PALACIOS, petitioner-appellant, vs. MARIA CATIMBANG PALACIOS, oppositorappellee.1959 Dec 24En BancG.R. No. L-12207D E C I S I O N

BAUTISTA ANGELO, J.:

Juan Palacios executed his last will and testament on June 25, 1946 and availing himself of the
provisions of the new Civil Code, he filed on May 23, 1956 before the Court of First Instance of Batangas
a petition for its approval. In said will, he instituted as his sole heirs his natural children Antonio C.
Palacios and Andrea C. Palacios.
On June 21, 1956, Maria Catimbang filed an opposition to the probate of the will alleging that she is the
acknowledged natural daughter of petitioner but that she was completely ignored in said will thus
impairing her legitime.
After the presentation of petitioner's evidence relative to the essential requisites and formalities
provided by law for the validity of a will, the court on July 6, 1956 issued an order admitting the will to
probate. The court, however, set a date for the hearing of the opposition relative to the intrinsic validity
of the will and, after proper hearing concerning this incident, the court issued another order declaring
oppositor to be the natural child of petitioner and annulling the will insofar as it impairs her legitime,
with costs against petitioner.

From this last order, petitioner gave notice of his intention to appeal directly to the Supreme Court, and
accordingly, the record was elevated to this Court.
It should be noted that petitioner instituted the present proceeding in order to secure the probate of his
will availing himself of the provisions of Article 838, paragraph 2, of the new Civil Code, which permit a
testator to petition the proper court during his lifetime for the allowance of his will, but to such petition
one Maria Catimbang filed an opposition alleging that she is the acknowledged natural daughter of
petitioner but that she was completely ignored in the will thus impairing her legitime. In other words,
Maria Catimbang does not object to the probate of the will insofar as its due execution is concerned or
on the ground that it has not complied with the formalities prescribed by law; rather she objects to its
intrinsic validity or to the legality of the provisions of the will.
We hold that such opposition cannot be entertained in this proceeding because its only purpose is
merely to determine if the will has been executed in accordance with the requirements of the law, much
less if the purpose of the opposition is to show that the oppositor is an acknowledged natural child who
allegedly has been ignored in the will for such issue cannot be raised here but in a separate action. This
is especially so when the testator, as in the present case, is still alive and has merely filed a petition for
the allowance of his will leaving the effects thereof after his death.
This is in line with our ruling in Montaano vs. Suesa, 14 Phil., 676, wherein we said: "The authentication
of the will decides no other questions than such as touch upon the capacity of the testator and the
compliance with those requisites or solemnities which the law prescribes for the validity of a will. It does
not determine nor even by implication prejudge the validity or efficiency of the provisions; that may be
impugned as being vicious or null, notwithstanding its authentication. The questions relating to these
points remain entirely un-affected, and may be raised even after the will has been authenticated."
On the other hand, "after a will has been probated during the lifetime of a testator it does not
necessarily mean that he cannot alter or revoke the same before his death. Should he make a new will,
it would also be allowable on his petition, and if he should die before he has had a chance to present
such petition, the ordinary probate proceedings after the testator's death would be in order" (Report of
the Code Commission, pp. 53-54). The reason for this comment is that the rights to the succession are
transmitted from the moment of the death of the decedent (Article 777, new Civil Code).
It is clear that the trial court erred in entertaining the opposition and in annulling the portion of the will
which allegedly impairs the legitime of the oppositor on the ground that, as it has found, she is an
acknowledged natural daughter of the testator. This is an extraneous matter which should be threshed
out in a separate action.
Wherefore, the order appealed from is set aside, without pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Labrador, Concepcion, Endencia, Barrera and Gutierrez David, JJ., concur.

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([1959V364E] JUAN PALACIOS, petitioner-appellant, vs. MARIA CATIMBANG PALACIOS, oppositorappellee., G.R. No. L-12207, 1959 Dec 24, En Banc)

Macam v. Gatmaitan 60 Phil. 358


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[1934V144E] In re estate of the deceased Leonarda Macam y Capili. NICOLASA MACAM, petitionerappellant, vs. JUANA GATMAITAN, oppositor-appellant.1934 Aug 17En BancG.R. No. 40445D E C I S I O N

VILLA-REAL, J:
This case comprises two appeals, one taken by the petitioner Nicolasa Macam and the other by the
oppositor Juana Gatmaitan, from an order of the Court of First Instance of Bulacan, the dispositive part
of which reads as follows:
"In view of the neglect or abandonment by the interested parties of their respective claims during the
proceedings for the probate of the will, and it appearing that the order allowing the will has already
become final and executory, the court is of the opinion that it is now too late to consider the so-called
codicil as well as the instrument from which Juana Gatmaitan derives her alleged right.
"Wherefore, the petition for the probate of the codicil as well as the opposition thereto filed by Juana
Gatmaitan is dismissed, without prejudice to whatever right the latter may have in an appropriate
proceeding before the committee on claims and appraisal, in accordance with law. So ordered."
In support of her appeal, the petitioner Nicolasa Macam assigns the following alleged errors as having
been committed by the trial court in said decision, to wit:
"1. The lower court erred in holding that the parties have abandoned their respective claims during the
proceedings for the probate of the will.
"2. The lower court erred in declaring that it was already too late to raise the question as to the legal
efficacy of the codicil executed by the deceased.
"3. The lower court erred in dismissing the petition for the probate of the codicil before any of the
parties had presented evidence pertinent to the matter."
The oppositor Juana Gatmaitan, in turn, assigns the following alleged errors as having been committed
by the court a quo in said decision, to wit:

"1. The lower court erred in holding that in order for Juana Gatmaitan to preserve her rights, so far as
to oppose the probate of the codicil, it was her duty to oppose to the probate of the will; and, having
opposed the probate only of the codicil, she could no longer avail herself of the document in her favor,
so as to affect the testamentary dispositions of the deceased Leonarda Macam.
"2. The lower court erred in dismissing the opposition of Juana Gatmaitan to the probate of the alleged
codicil."
The appellants assignments of error, considered together, raise the following questions of law:
1. Is the probate of a will by final judgment prior to that of a codicil thereof a bar to the probate of said
codicil?
2. Does the failure of file opposition to the probate of a will constitute a bar to the presentation of the
codicil for probate?
The following pertinent facts, which are disclosed by the pleadings, are necessary for the resolution of
the questions raised in this appeal:
On March 27, 1933, Nicolasa Macam filed in the Court of First Instance of Bulacan a petition for the
probate of the will dated July 12, 1932, and of the codicil thereof dated February 17, 1933, executed by
Leonarda Macam who died on March 18, 1933, in the municipality of Calumpit, of said Province of
Bulacan, and for her appointment as executrix without bond.
When the petition was called for hearing on April 24, 1933, in the absence of the judge, the clerk of the
Court of First Instance of Bulacan, upon instructions of said judge to proceed to take the evidence in the
absence of any opposition, took the evidence relative to the probate of the will, no opposition to the
same having been filed. Inasmuch as Juana Gatmaitan filed opposition to the probate of the codicil, said
clerk deemed himself unauthorized to take the evidence relative thereto and refrained from so doing.
The will and the evidence for its probate having been submitted to the court the vacation Judge Hon. M.
Rosauro, on April 28, 1933, entered an order allowing said will and appointing the petitioner Nicolasa
Macam as executrix.
On July 6, 1933, after notice to the parties, the codicil was called for hearing, opposition having been
filed by Juana Gatmaitan, one of the legatees instituted in the will which had already been allowed by
final and executory judgment. After hearing counsel for the respective parties, Judge Francisco Enage,
then presiding over the Court of First Instance of Bulacan, entered the order the dispositive part of
which has been quoted at the beginning of this decision.
Section 625 of the Code of Civil Procedure provides as follows:
"SEC. 625.
Allowance necessary, and conclusive as to execution. No will shall pass either the real
or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the
Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive
as to its due execution."

Interpreting the above legal provisions as regards the scope of the allowance of a will, this court, in
numerous decisions, has laid down the doctrine that the probate of a will is conclusive as to its due
execution and as to the testamentary capacity of the testator, but not as to the validity of its provisions,
and in probate proceedings the courts are without jurisdiction to determine questions concerning the
validity of the provisions of the will. (Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil.,
436; Limjuco vs. Ganara, 11 Phil., 393; Austria vs. Ventenilla, 21 Phil., 180; In re Estate of Johnson, 39
Phil., 156; Riera vs. Palmaroli, 40 Phil., 105.)
"A codicil is a written instrument wherein one declares his last will, in order to take from or add
something to the will, or clarify the provisions thereof." (Spanish Cyclopaedia of Law, vol. 5, page 918.)
"A codicil has been defined as some addition to or qualification of one's last will and testament." (28 R.
C. L., 197.)
The exercise of the right to make a will, as a voluntary act, implies the right to revoke, and article 737 of
the Civil Code expressly provides that wills are essentially revocable, provided that the partial or total
revocation is made with the formalities required for making it, in accordance with the provisions of
article 738 of the same Code.
The fact that a will has been allowed without opposition and the order allowing the same has become
final and executory is not a bar to the presentation and probate of a codicil, provided it complies with all
the necessary formalities for executing a will required by section 614 of the Code of Civil Procedure, as
amended by section 1 of Act No. 1934.
It is not necessary that the will and the codicil be probated together, as the codicil may be concealed by
an interested party and it may not be discovered until after the will has already been allowed; and they
may be presented and probated one after the other (40 Cyc., 1228), since the purpose of the probate
proceedings is merely to determine whether or not the will and the codicil meet all the statutory
requirements for their extrinsic validity, leaving the validity of their provisions for further consideration.
The appeal taken by the petitioner Nicolasa Macam is, therefore, well founded and the court a quo
erred in flatly denying her petition for the probate of the codicil on the erroneous ground that said
codicil should have been presented at the same time as the will.
With respect to the opposition of the oppositor-appellant Juana Gatmaitan, the fact that she failed to
file opposition to the probate of the will does not prevent her from filing opposition to the probate of
the codicil thereof, inasmuch as the will may satisfy all the external requisites necessary for its validity,
but the codicil may, at the time of its execution, not be in conformity therewith. If the testator had
testamentary capacity at the time of the execution of the will, and the will was executed in accordance
with all the statutory requirements, opposition to its probate would not lie. On the contrary, if at the
time of the execution of the codicil the testator lacked some of the subjective requisites legally
capacitating him to execute the same, or all the statutory requirements were not complied with in the
execution thereof, opposition to its probate would lie.
The court a quo, therefore, erred in dismissing the opposition filed by the oppositor-appellant Juana
Gatmaitan to the probate of the codicil of the will of the deceased Leonarda Macam.

In view of the foregoing, we are of the opinion and so hold: (1) That the fact that a will has been
probated and the order allowing the same has become final and executory, is not a bar to the
presentation and probate of a codicil, although its existence was known at the time of the probate of
the will; (2) that the failure of the oppositor to the probate of a codicil to file opposition to the probate
of the will, having knowledge of such proceedings, does not constitute an abandonment of a right, nor
does it deprive her of the right to oppose to probate of said codicil.
Wherefore, the order appealed from is reversed and it is ordered that the petition for the probate of the
codicil filed by the petitioner Nicolasa Macam, as well as the opposition to said probate filed by the
oppositor Juana Gatmaitan, he reinstated, without special pronouncement as to costs. So ordered.
Malcolm, Imperial, Butte and Goddard, JJ., concur.
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([1934V144E] In re estate of the deceased Leonarda Macam y Capili. NICOLASA MACAM, petitionerappellant, vs. JUANA GATMAITAN, oppositor-appellant., G.R. No. 40445, 1934 Aug 17, En Banc)

Bustamante v. Arevalo, 73 Phil. 635


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[1942V35E] In the matter of the estate of Rufina Arevalo. ARISTON BUSTAMANTE, administratorappellant, vs. PETRONA AREVALO, ET AL., oppositors-appellees.1942 Jul 31En BancG.R. No. 47305D E C I
SION
BOCOBO, J:
The main issue in this case is whether or not Exhibit C, presented by appellant for allowance as the last
will and testament of the deceased Rufina Arevalo, is a forgery. The Court of First Instance of Manila
held that it was a forged document, and allowed an earlier will, Exhibit 6, whose authenticity was
unquestioned. The value of the estate is over P50,000.
The questioned document was prepared and signed in duplicate. It consists of two pages and is dated
October 2, 1937. It appears to be signed by Rufina Arevalo and by three witnesses, Manuel M. Cruz,
Remigio Colina and Angel Sanchez. The formal requisites of a will have been complied with.
An initial fact that arrests the attention is the formulation by the appellees of the allegation of forgery
even before seeing the questioned document. Said charge of forgery was signed on April 22, 1938,
although Exhibit C, which had been in a sealed envelop, was not opened by order of the court till the
next day, April 23, 1938. It is true that the opposition by the appellees was not actually filed in court till
April 23, but it was signed by appellees' attorneys on April 22, was subscribed and sworn to by Amando

Clemente on April 22, and a copy thereof was sent by registered mail to Attorney Nicasio Yatco on April
22.
Moreover, in the morning of April 23, appellees' attorneys, Messrs. Jose Belmonte and Vicente Delgado,
announced their opposition to the will Exhibit C in open court, before said document was opened by
order of the court on that day.
One of the principal reasons of the court a quo for believing Exhibit C to be a forgery is that in the
genuine signatures the terminal stroke of the capital "R" in "Rufina" is not joined with the letter "u,"
while in Exhibit C such ending is united with the letter "u" in the two marginal signatures, although in
the central signature appearing on page 2, the two letters are separated. The probate court believes
that this difference between the marginal and the central signatures is due to the fact that the forger
first used the check of "La Previsora" (Exhibit I) as the model in falsifying the marginal signatures, but
having been shown another signature with the characteristic already mentioned separation of the
two letters he tried to imitate said peculiarity in making the central signature.
We believe the probate court has overlooked the well-established principle that in passing upon
questioned documents, the test is the general character of the writing rather than any minute and
precise comparison of individual letters or lines. In People vs. Bustos (45 Phil., 30), this Court held:
"It is a first principle in writing that exact coincidence between two signatures is absolute proof that one
or the other is a forgery. There must be some difference before authenticity can be admitted; and the
general rule is that authenticity reposes upon a general characteristic resemblance, coupled with
specific differences, such as naturally result from the infinite variety of conditions controlling the
muscles of the writer at each separate effort in forming his signature." ( mphasis supplied.)
In the present case, a careful scrutiny of all the questioned and the standard signatures has convinced us
that they have been written by the same person because they show the same general type, quality and
characteristics, with natural variations. We are, therefore, inclined to give credence to the expert
testimony to that effect presented by the appellant.
Moreover, a forger who has to make two or more signatures usually sees to it that all the signatures are
uniform for fear that any difference might arouse suspicion. In this case, however, in some questioned
signatures the letters "R" and "u" are separated, but in others, they are united. Osborne in "Questioned
Documents" (pp. 368, 369) says:
"Another indication of genuineness in a holographic document or a considerable amount of writing, or
in two or more disputed signatures, are certain natural variations in the details of the writing. It is
difficult for the inexperienced or unthinking examiner to understand that a certain extent of variation in
a group of several signatures and variation in repeated words and letters in a continuous holographic
document can be evidence of genuineness. The forger does not understand this necessity for natural
variation and, as nearly as he can, makes words and letters just alike.
xxx

xxx

xxx

"It necessarily follows, therefore, that if the several lines of a disputed document, or several signatures
under investigation, show these natural variations of writing of the same word or letter, all of course
within the scope of variation of the genuine writing, this variation itself, surprising and paradoxical as it
may appear, is as strong evidence of genuineness as the opposite condition is evidence of forgery." (
mphasis supplied.)

Furthermore, it is to be noted that the document in question was prepared and signed in duplicate, so
that there are six signatures of Rufina Arevalo, instead of only three. It is reasonable to believe that a
forger would reduce the number of signatures to be forged so as to lessen the danger of detection. In
this case, Attorney Nicasio Yatco, who supervised the execution of Exhibit C, must have known that it
was not necessary to make a signed duplicate of the will.
As for the probate court's opinion that the forger must have used Exhibit I (a check issued by "La
Previsora" to Rufina Arevalo) as a model in falsifying the marginal signatures, it is highly improbable that
said check was in the hands of Rufina Arevalo or of her attorney, Nicasio Yatco, on or about October 2,
1937, when the document in question was signed. The check had been issued on June 30, 1936, or over
a year before, and it must have been returned by the bank concerned to "La Previsora" in the ordinary
course of business, because it was produced by the Manager of "La Previsora." It should likewise be
observed that the signature on the first page of the duplicate will (Exhibit C-3) does not have the
supposed peculiarity of the standard signatures, that is, the separation between "R" and "u." If, as the
lower court states, the forger upon being shown a model other than Exhibit I, imitated said
characteristic separation in making the central or body signature on the original will Exhibit C, it is
indeed strange that he should not do the same immediately thereafter on the first page of the duplicate
will but that he should, instead, repeat the mistake he had made on the marginal signatures on the
original will.
Finally, to conclude that a forgery has been committed, the evidence should be forcefully persuasive.
Before we are disposed to find that an attorney-at-law has so debased himself as to aid and abet the
forgery of a will, which would not only send him to jail for many years but would ruin his future, we
must require proof sufficiently strong to prevail against every fair and thoughtful hesitancy and doubt.
And the instrumental witnesses have testified that Rufina Arevalo signed the will in their presence. It is
hard to believe they would commit perjury as it has not been shown they had any interest in this case.
Therefore, we find that the will of Rufina Arevalo, dated October 2, 1937 and marked Exhibit C, is
genuine and should be allowed.
It is unnecessary to discuss the incidental issues of fact so ably presented by counsel and examined in
detail by the probate court, inasmuch as the foregoing disposes of the basic question raised. The relative
position of the contending devisees in the affection of the deceased; whether Rufina Arevalo could go
alone to the law office of Attorney Yatco on October 2, 1937 to sign the will Exhibit C; the alleged
resentment of the testatrix toward Amando Clemente when she signed the second will, and similar
questions are not of sufficient significance to alter the conclusion herein arrived at. In fact, they merely
tend to becloud the main issue.
The next question to be inquired into is whether or not the later will (Exhibit C) dated October 2, 1937,
whose probate is herein approved, has entirely revoked the earlier will, Exhibit 6, dated January 9, 1936.
Though both parties admit that the first will has been revoked by the second, yet we deem it necessary
to discuss the question because a member of this Court thinks the earlier will can stand in part. It
appears that the undivided interest of Rufina Arevalo in two parcels of land and the improvements
thereon which belonged to the conjugal partnership between Bernabe Bustamante, who had died
before the making of the two wills, and Rufina Arevalo, was expressly devised to Amando Clemente in
the earlier will but was not specifically mentioned in the later will. In the first will, Exhibit 6, Rufina
Arevalo, who had no forcible heirs, gave to Ariston Bustamante, her nephew, three lots and the

buildings thereon; devised a parcel of land and the houses standing thereon to her cousin, Petrona
Arevalo Viuda de Zacarias, and to her niece, Carmen Papa de Delgado; and finally disposed, in favor of
Amando Clemente, another cousin, of a piece of land and the houses thereon, and of her undivided
interest in the two parcels of land and the improvements thereon, which belonged to the conjugal
partnership, also making said Amando Clemente the residuary legatee. But in the second will, Exhibit C,
she designates Ariston Bustamante her only heir in these terms:
"Segundo Nombro como mi unico heredero, Ariston Bustamante, de todas mis propiedades dejadas
ya mueble o inmueble que se describen ms abajo:
(a) Original Certificate of Title of Manila No. 5059
(b) Original Certificate of Title of Manila No. 4681
(c) Transfer Certificate of Title of Manila No. 19961
(d) Original Certificate of Title of Manila No. 5066
(e) Original Certificate of Title of Manila No. 4682."
Her undivided interest in the two pieces of land of the conjugal partnership, with Torrens titles No. 4887
and No. 15628, devised to Amando Clemente in the earlier will, is not specifically mentioned in the later
will, Exhibit C. Moreover, the second will has no revocation clause.
At first sight, it would seem that the earlier will can stand with respect to Rufina Arevalo's share in said
two parcels of land belonging to the conjugal partnership. But a closer examination of the later will
counteracts such initial reaction.
In the first place, the testatrix in the second will names Ariston Bustamante her only heir to all her
property, both personal and real, her words in Spanish being: "Nombro como mi unico heredero, Ariston
Bustamante, de todas mis propiedades dejadas ya mueble o inmueble." ( mphasis supplied.) It is true
that in enumerating her parcels of land, she did not specify her interest in the two lots of the conjugal
partnership. But this omission must have been due either to an oversight or to the belief that it was
premature to name said two parcels as the conjugal partnership was still being liquidated. In either case,
the testatrix must have thought that her comprehensive words "mi unico heredero de todas mis
propiedades dejadas ya mueble o inmueble" would be sufficient to cover all her property, whether
specially listed or not.
Secondly, in the opening paragraph of the second will, the following words appear: "hago constar a
todos este mi ultimo testamento y voluntad expresado en Castellano lenguaje que conozco y poseo, y
queriendo disponer de mis bienes por virtud de este mi testamento." ( mphasis supplied.) Though she
knew that she had made a first will, she nevertheless said that the second will was her last one. This
would seem to signify that her last will, cancelling her previously expressed wish, was to make Ariston
Bustamante her only heir. Furthermore, when she said she wanted to dispose of her property by means
of the second will ("queriendo disponer de mis bienes por virtud de este mi testamento"), it would
appear to be her intention that no property of hers should be left undisposed of in the second will. This
fact is corroborated in the second clause wherein she names Ariston Bustamante as her only heir to all
her property whether personal or real.

We believe, therefore, that the first will has been entirely revoked. Though it might appear right that
Amando Clemente should receive something from the estate because he, together with Ariston
Bustamante, has been raised by the testatrix, and both are her relatives, nevertheless it would be
venturesome for us to advance our own idea of a just distribution of the property in the face of a
different mode of disposition so clearly expressed by the testatrix in the later will. As she had no forcible
heirs, she was absolutely free to give her estate to whomsoever she chose, subject of course to the
payment of her debts. It would be a dangerous precedent to strain the interpretation of a will in order
to effect what the court believes to be an equitable division of the estate of a deceased person. The only
function of the courts in these cases is to carry out the intention of the deceased as manifested in the
will. Once that intention has been determined through a careful reading of the will or wills, and provided
the law on legitimes has not been violated, it is beyond the pale of judicial cognizance to inquire into the
fairness or unfairness of any devise or bequest. It might be said that it is hard to understand how, in a
temporary anger at Amando Clemente, the testatrix would entirely cut him off from the inheritance. We
should not, however, sit in judgment upon her motives and sentiments, first because, as already stated,
nothing in the law restrained her from disposing of her property in any manner she desired, and
secondly, because there are no adequate means of ascertaining the inward processes of her conscience.
She was the sole judge of her own attitude toward those who expected her bounty.
In view of the foregoing, the decision appealed from, declaring the second will Exhibit C a forgery and
allowing the first will Exhibit 6, should be and is hereby reversed, and another judgment shall be entered
allowing the later will Exhibit C, which has entirely revoked the earlier will Exhibit 6. No special
pronouncement on costs is made. Let the record of this case be returned to the court of origin for
further proceedings. So ordered.
Yulo, C.J., and Moran, J., concur.
Separate Opinions
OZAETA, J., concurring:
I concur in the finding that the will Exhibit C is genuine. I think, however, that the discussion in the
majority opinion of whether or not said Exhibit C entirely revoked the previous will Exhibit 6 is
unnecessary, inasmuch as both parties in their brief have admitted the affirmative. There being no
controversy between the parties on that score, there seems to be no occasion for the Court to render an
opinion thereon.
PARAS, J., concurring and dissenting:
The testatrix in this case executed two wills, one on January 9, 1936, and the other on October 2, 1937.
In the first will, the testatrix specifically referred to seven parcels of land of considerable value and to
certain personal properties. Three of these parcels of land and all the personal properties are given to
Amando Clemente, another three to Ariston Bustamante, and the seventh parcel to Petrona Arevalo and
Carmen Papa. In the second will, the testatrix particularly referred to only five parcels of land and
certain personal properties, all of which are given to Ariston Bustamante, as her universal heir. The
second will does not make mention of two of the three parcels given to Amando Clemente under the
first will.

The question that arises is whether the second will has the effect of revoking the first. In my opinion,
where, as in the present case, the two wills can be reconciled, the first should be considered revoked
only in so far as it is inconsistent with the second. As the second will was executed only twenty-one
months after the first, the testatrix, who has been conclusively shown to be of sound mind at the time of
the execution of the later will, could not have forgotten that she owned two other parcels of land,
especially if they are of considerable value. Even the lawyer who drafted the second will was aware that
the testatrix owned the said two parcels, because they were included in the inventory made of her
properties in connection with the administration proceedings of the estate of her deceased husband.
This omission could have been made only on purpose, and, coupled with the circumstance that the
second will does not expressly revoke the first which has not been burned, torn, cancelled or
obliterated, inevitably leads to the inference that the testatrix in fact intended to make the first will
effective as to the two parcels of land above referred to.
Section 623 of the Code of Civil Procedure provides:
"No will shall be revoked, except by implication of law, otherwise than by some will, codicil, or other
writing executed as provided in case of wills; or by burning, tearing, cancelling, or obliterating the same
with the intention of revoking it, by the testator himself, or by some other person in his presence, and
by his express direction."
xxx

xxx

xxx

"If partially conflicting, that of the latter date will operate to revoke the former so far as the provisions
of the two are conflicting or incompatible, and in such case both wills are entitled to probate." (68
Corpus Juris 805.)
"Where there is no revocation in a later will of all former wills, two separate and distinct wills may be
probated, especially when the probating of one only of the instruments would leave an intestacy as to
part of the estate. This rule applies even though the later instrument states that it is the last will and
testament of the testator, as the use of such words in a later instrument does not of itself revoke a prior
will." (Id. p. 885.)
I therefore vote for the probate of both wills.

Samson v. Naval, 41 Phil. 838


G.R. No. L-11823

February 11, 1918

CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO, petitionersappellants,

vs.
MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-appellants.
Guillermo
Perfecto Gabriel for appellees.

Lualhati

for

appellants.

ARAULLO, J.:
On September 20, 1915, attorney Perfecto Gabriel presented in the Court of First Instance of the city
of Manila for allowance as the will of Simeona F. Naval, who died in said city two days previously, a
document executed by her of February 13, 1915, and in which he was appointed executor. The case
was recorded as No. 13386 and, after hearing the petition for allowance filed by said executor, it was
denied on the ground that said document was not duly executed by the deceased as her last will and
testament, inasmuch as she did not sign it in the presence of three witness and the two witnesses
did not sign it in the presence of each other. Thereafter the nieces and legatees of the same
deceased filed in the same court for allowance as her will, another document executed by her on
October 31, 1914, and, consequently, the case was registered under another number, which was
No. 13579. The petition for allowance was opposed by Monica Naval, Rosa Naval, and Cristina
Naval on the ground that the will, the allowance of which is asked, could not be allowed, because of
the existence of another will of subsequent date, executed during her lifetime by the same Simeona
F. Naval, and because said will has been revoked by another executed subsequently by her during
her lifetime, and further, because sail will has not been executed with the formalities required by
existing laws. Trial having taken place, at which evidence was adduced, the court on February 8,
1916, issued an order, admitting said second document and ordering its allowance as the last will
and testament o said deceased. From said order the opponents appealed to this court and
transmitted to us the corresponding declarations. Tow of the opponents, that is, Rosa and Cristina
Naval, assigned, as errors committed by the court, the following:
1. The finding of the court that the will of October 31, 1914, has not been revoked by that of
February 13, 1915;
2. The act of the court in permitting the petitioner to institute and proceed with the proceedings
relative to the last case for the allowance of the will, No. 13579, notwithstanding that proceedings
had already been had in the other case No. 13386 and final judgment rendered therein; and
3. The act of the court in denying the motion for continuance of the trial on the allowance of the will
of October 31, 1914, which motion was presented for the sole purpose of introducing evidence to
show the falsity of the signature appearing in said will and submitting said signature to the Bureau of
Science for analysis.
The other opponent, Monica Naval, assigned, besides the first two errors already mentioned, the
finding of the court that the disallowance of the will of said deceased, dated February 13, 1915, on
the ground that is was not executed in such form that it could transmit real and personal property,
according to section 618 of the Code of Civil Procedure, also had the effect of annulling the
revocatory clause in said will.
From the evidence it appears, as we have already stated, that the trial court declared that the first
document presented by the executor of the deceased, Simeona F. Naval, as a will executed by her
on February 13, 1915, and which was the subject-matter of case No. 13386 of said court, could not
be allowed, on the ground that it was not executed with the requisites and formalities prescribed by
law. Article 739 of the Civil Code provides that a former will is by operation of law revoked by
another valid subsequent will, if the testator does not state in the later will his desire that the former
should subsist wholly or partly. In harmony with this provision of substantive law, we find section 623
of the Code of Civil Procedure, which provides that no will shall be revoked, except by implication of
law, otherwise than by some will, codicil, or other writing executed as provided in case of wills.
Therefore, according to the legal provisions, in order that the will of February 13, 1915, that is, the
first document presented as the will of the deceased Simeona F. Naval, could have the effect of

revoking that which was presented afterwards by the petitioners as executed by the same deceased
on October 31, 1914, that is, on a date previous to the execution of the first, it was necessary and
indispensable that the later will, that is, that first presented for allowance, should be perfect or valid,
that it, executed as provided by lay in case of wills.
It also appears from the record that the opponents themselves maintained that said later will, that is,
that of February 13, 1915, was not perfect, or executed as provided by law in case of wills, and the
Court of First Instance of Manila has so held in disallowing said documents as the will of the
deceased. So that it very evident that the second will presented, that is, that of October 31, 1914,
was not and could not have been revoked by the first, and the court was not in error in so holding in
the order appealed from. We deem it unnecessary to add a single word mere or cite well-known
doctrines and opinions of jurists in support of what has already been stated.
As to the second error assigned by the opponents, we believe it sufficient to refer to what the court
below stated in the judgment appealed from. It is as follows:
The court finds no incongruency in the presentation of a prior will when another will of
subsequent date has been disallowed. Disregarding the fact that the petitioners in this case
were not those who presented the will in No. 13386, in which the petition was presented by
the same D. Perfecto Gabriel as executor, it is proper to take into account that the object of a
petition for allowance is to ask for an order declaring that a will has been executed in
accordance with the requisites and formalities required by law. This is a question for the
court to decide and is out of the control of the party who presents the will. The allowance or
disallowance of a will by a competent court depends upon whether the evidence adduced at
the trial shows or does not show that the formalities required by law have been complied
with, and this cannot be determined in advance, as a general rule, by the person who
presents the testament. for he has not always concurred in or seen the execution of the will.
If, therefore, the personal who presents a will and asks that if be allowed does not secure its
allowance, and he has in his possession another will, or has information that another exists,
he does not contradict himself by asking for the allowance of the will of earlier date merely
because the later will was declared invalid by the proper court. If in this case there is any
who adopts a contradictory position, it is the respondent himself, inasmuch as in case No.
13386 he alleged, as a ground for the disallowance of the will then presented, that it was not
executed in accordance with the law, and now he maintains the contrary, for he claims that
said will revoked that which is now presented.
With respect to the third error, it is beyond doubt that the court did not commit it, for it appears that
when the examination of the witness, Cristina Samson, was finished and the court told Attorney
Lualhati, counsel for the respondents, to continue adducing his evidence, he said he had no more
proof, although he added that he would ask the court to grant him permission to send the will of 1914
to the Bureau of Science, which petition was objected to by the attorney for the proponents and
denied by the court. Immediately thereafter the attorney for the opponents asked for the continuance
of the trial, which was also denied by the court, after objection was made by the proponents. The
attorney for the opponents excepted to said ruling.
Therefore, the petition of said attorney for the remission of said will to the Bureau of Science, in the
terms in which it was made to the court, after ha had stated that he had no more evidence to
present, signified that he left it to the discretion of the court to grant it or not. Furthermore, no
exception was taken to the order to the order denying this motion, and although the attorney for the
opponents excepted to the order denying the motion for continuance of the trial, such exception was
completely useless and ineffective for the purpose of alleging before this court that the trial court
erred in that respect, for said resolution, being one of those left to the discretion of the court in the
exercise of it functions, according to section 141 of the Code of Civil Procedure, it could not be the
subject of an exception, unless the court, in denying said motion, abused its discretional power and
thereby prejudiced the essential rights of the respondents, which is not the case here.

The error which, in addition to the first two already mentioned, has been assigned by the opponent
and appellant, Monica Naval, and refers, according to her, to the court's action in declaring that the
disallowance of the will of the deceased Simeona F. Naval, dated February 13, 1915, for the reason
that it was not executed in such manner and from that it could transmit real and personal property,
according to the provisions of section 618 of the Code of Civil Procedure, also had the effect of
annulling the revocatory clause of said will.
First of all, it is not true that the court made such statement in the terms given in said assignment of
error, that is, it is not true that the court declared that, because said will was not executed in the form
required by law in order that it may transmit real and personal property, according to the provisions
of section 618, the disallowance of said will also had the effect of annulling the revocatory clause
therein contained. In the order appealed from there is no declaration or conclusion made in these
terms. The court did not say that the annulment of the revocatory clause in said will was the effect or
consequence of the fact that it was not allowed on the ground that it was not executed in the form
required by law in order that it may transmit real and personal property. Referring to the construction,
given by the respondent to sections 618 and 623 of the Code of Civil Procedure, to the effect that a
subsequent will may revoke a previous will, although the later will has not been allowed by the
competent court, it being sufficient that the intention of the testator to revoke the previous will should
be clearly expressed, and that, while the requisite of allowance is necessary in order that it may
transmit property from one person to another, it is not necessary in order that it might procedure
other effects, for example, the effect of a revocatory clause, or a clause of aknowledgment of a child,
what the court declared, we repeat, was that although the revocation of a will should have been
effected, not by means of another will or codicil, but by mans of a document, as authorized by said
section 623, which document should have the requisites and conditions fixed in section 618, the
presentation of the document to the court was necessary in order that the latter might allow it, by
declaring that it was executed with the formalities required by law for the execution of a will, and
finally concluding that, just as to, is to be proved that the requisites of section 618 have been
complied with in order that a will may be of value through its allowance, so without such allowance
the revocatory clause like the other provisions of the will, has no value or effect except to show
extraneous matters, as, for example, the acknowledgment of natural children, of some debt or
obligation. In such case, the document could produce effect, but not as will, but simply as a written
admission made by the person executing it. And It is beyond doubt that the revocatory clause
contained in a document, like the present, which contains provisions proper of a will, as those
relating to legacies and distribution of the properties of the testator after his death as well as the
appointment of executors, is not matter extraneous to the will, but merely a part thereof, intimately
connected with it as well as with the will or wills, the revocation of which is declared in said clause; in
short, the desire of the testator declared in the revocatory clause is related to the desire of the same
testator expressed in the provisions of the testament in which said clause is found and to that which
he might have expressed in the testaments which he may have previously executed. There is such
relation between the revocatory clause and the will which contains it, that if the will does not produce
legal effects, because it has not been executed in accordance with the provisions of the law, neither
would the revocatory clause therein produce legal effects. And if, in the present case, the so-called
will of the deceased, Simeona F. Naval, dated February 13, 1915, was not duly executed by her as
her last will and testament, ad declared by the court in its decision of November 19, 1915, in case
No. 13386, for which reason its allowance was denied, neither may it be maintained that the
revocatory clause contained in said will is the expression of the last will of said deceased. The
disallowance of the ill, therefore, produced the effect of annulling the revocatory clause, not exactly
because said will was not executed in such from that it could transmit real and personal property, as
inaccurately alleged by the appellant, Monica Naval, to be the court's finding, upon which said
assignment of error is based, but because it was proved that said will was not executed or signed
with the formalities and requisites required by section 618 of the Code of Civil Procedure, a cause
which also produces the nullity of the same will, according to section 634 of said law; and of course
what is invalid in law can produce no effect whatever.

If the instrument propounded as a revocation be in form a will, it must be perfect as such,


and be subscribed and attested as is required by the statute. An instrument intended to be a
will, but filing of its effect as such on account of some imperfection in its structure or for want
of due execution, cannot be set up for the purpose of revoking a former will. (40 Cyc., p.
1177, and cases cited therein.)
A subsequent will containing a clause revoking an earlier will must, as a general rule, be
admitted to probate before the clause of revocation can have any effect, and the same kind,
quality, and method of proof is required for the establishment of the subsequent will as was
required for the establishment of the former will. (40 Cyc., p. 1178, and cases cited therein.)
But admitting that the will said to have been executed by the deceased Simeona F. Naval on
February 13, 1915, notwithstanding its inefficacy to transmit property for the reason that it has not
been executed, according to the provisions of said section 618 of the Code of Civil Procedure,
should be considered as executed by her in order to express her desire, appearing in one of its
clauses, to revoke and annul any previous will of hers, as stated in clause 13, this being the
argument adduced by the appellant, Monica naval, in support of said assignment of error neither
could it be maintained that, the allowance of said will having been denied by the court on November
11, 1915, said revocatory clause subsists and the intention expressed by the testratrix therein is
valid and legally effective, for the simple reason that, in order that a will may be revoked by a
document, it is necessary, according to the conclusive provisions of section 623 of said procedural
law, that such documents be executed according to the provisions relating to will in section 618, and
the will in question, or, according to the respondent, the so-called document, was not executed
according to the provisions of said section, according to the express finding of the trial court in its
order of November 11, 1915, acquiesced in by the opponent herself, and which is now final and
executory. Therefore, the disallowance of said will and the declaration that it was not executed
according to the provisions of law as to wills, produced the effect of annulling said revocatory clause.
In support of the argument advanced in her brief said appellant, Monica Naval, cites the declaration
made by the Supreme Court of Massachusetts in Wallis vs. Wallis (114 Mass., 510, 512)m which,
according to the appellant herself, was in the following terms:
If it be shown that a later will was duly executed and attested, containing a clause expressly
revoking former will nothing else appearing as to its contents, it is nevertheless good as a
revocation, but it can only be made available by setting it up in opposition to the probate of
the earlier will.
In the decision of said case the finding referred to be by the appellant appears not to have been
made by the Supreme Court of Massachusetts.
The syllabus of said decision says:
When a will revoking a former will is in existence, it must be established in the Probate Court;
but when it has been lost or destroyed, and its contents cannot be sufficiently proved to
admit it to probate, it may nevertheless be availed of as a revocation in opposition to the
probate of the will revoked by it.:
And in the body of the decision there is a declaration, to which the appellant must have desired to
refer in her brief, which declaration says:
If it can be proved that a later will was duly executed, attested and subscribed, and that it
contained a clause expressly revoking all former wills, but evidence of the rest of its contents
cannot be obtained, it is nevertheless a good revocation; and it can be made available only
by allowing it to be set up in opposition to the probate of the earlier will,. . .
The facts of the case in which this decision was rendered are different from the facts of the case at
bar. That was a case concerning a will filed by one of the children of the testatrix, Mary Wallis, as her
last will, to the allowance of which another son objected, alleging that said will had been revoked by
another executed by the same deceased subsequent to the will that was filed, and that it had been

fraudulently destroyed or taken by his brother, the proponent and his wife, or by one of them, in
order to deprive him of the rights conferred upon him by said will. Therefore, the will said to have
been subsequently executed by the testatrix and in which, according to the oppositor, the clause
revocatory of the former will appeared, was not presented by said oppositor, while the previous will
was, in the contrary, filed for allowance by the son of the testratrix, who appeared to be favored
therein, said oppositor having alleged that the subsequent will, that is, that containing the revocatory
clause, had been drawn, subscribed and executed in accordance with the provisions of the law, a
fact which he was ready to prove just as he was ready to prove that it had been destroyed or
suppressed by the proponent, his brother and his wife, or one of them. In the case at bar, the
subsequent will containing the revocatory clause of the previous will executed by the deceased
Simeona F. Naval was presented to the court for allowance and it was disallowed a fact which
gave opportunity to the legatees of said deceased to present a previous will executed by her on
October 31, 1914, and said two wills having been successively presented, evidence as to them was
also successively adduced for their allowance by the court.
Therefore, the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis
(supra), to the effect that a subsequent will containing a revocatory clause of previous wills,
constitutes a valid revocation and may be used in objecting to the allowance of the previous will,
even when it is not possible to obtain proof of the remainder of the contents of said subsequent will,
refers to the case in which the latter had been taken away, destroyed or suppressed, and it was
impossible to present it for allowance, but requires for that purpose that it be proved that said
subsequent will has been executed, attested, and subscribed in due form and that it contained,
furthermore, that revocatory clause. This is what said declaration and, in relation thereto, also what
the syllabus of the decision thereof clearly says. The court, through Chief Justice Gray, in giving its
opinion, thus began by saying:
By our law, no will can be revoked by any subsequent instrument, other than a "will, codicil
or writing, signed, attested and subscribed in the manner provided for making a will." And
when an instrument of revocation is in existence and capable of being propounded for
probate, its validity should be tried by a direct proceeding instituted for the purpose in the
Probate Court. (Loughton vs. Atkins, 1 Pick., 535.)
It results, therefore, that while perfect parity does not exist between the case decided by the
Supreme Court of Massachusetts, to which the appellant Monica Naval refers, and that which is not
before us, it is wholly unquestionable that, whether the case deals with a subsequent will revocatory
of a previous will, which may possibly be presented to a probate court for allowance, or of a
subsequent will, also revocatory of a previous will, which could not be presented for allowance,
because it has been taken or hidding, or mislaid in order that such will may constitute a valid
revocation and be utilized in the second case, although the remaining provisions may not be proven,
in opposition to the allowance of the previous will, it is necessary to prove that it was executed,
attested, and subscribed in due form, and, of course, also that it contained a clause expressly
revoking the previous will, or, what is the same thing, that said subsequent will has been executed
according to the provisions relating to wills, as expressed in section 623 of the procedural law in
force. There can be no doubt whatever that this applies when the revocation had been made to
appear in a writing or document susceptible of presentation for allowance, like the so-called will of
the deceased Simeona F. Naval, dated February 13, 1915, and considered by said respondent and
appellant as a mere document of revocation, for, as already seen in said decision invoked by her,
the requisite as to signing, attesting, and subscribing in the form, required by law for the execution of
wills in order that it may revoke a previous will, is also required in a will as well as in a codicil, or in a
writing, and in referring to a document of revocation, it is also expressed that its validity should be
proved in a direct proceeding, instituted for the purpose in a probate court. In the case at bar, the
document, executed by the deceased, Simeona F. Naval, as her last will and testament, dated
February 13, 1915, has been presented for allowance; it validity has been proved by means of said
procedure in the Court of Probate of Manila, and that court denied its allowance, on the ground that
the document in question had not been duly executed by the deceased, as her last will and

testament, because she did not sign in the presence of three witnesses, and two of these witnesses
did not sign in the presence of each other, or what is the same thing, that said document has not be
attested and subscribed in the manner established by law for the execution of will, or, in other words,
as provided by law in case of wills, as stated by section 623 of said procedural law, and this
resolution was acquiesced in, as already stated, by the respondents in this case, and is, therefore,
final and executory.
In conclusions, the doctrine laid down in the decision of the Supreme Court of Massachusetts,
invoked by the appellant, Monica Naval, is in conformity with the provision of said section 623 of our
procedural law and article 739 of the Civil Code, and the will executed by the deceased Simeona F.
Naval on October 31, 1914, not having been revoked, according to these provisions, by the will
presented and alleged as executed by the same deceased subsequently on February 13, 1915, the
allowance of which was denied by the Court of First Instance of Manila, the court below was not in
error in ordering the allowance of said will, that is, of that of October 31, 1914, as the last will and
testament of said deceased.
Wherefore, the order appealed from is affirmed, with the costs of this instance against the
appellants. So ordered.
Arellano, C.J., Torres, Carson, Streets and Malcolm, JJ., concur.

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