SURUZA VS HONDRADO

110 SCRA 388 Succession Will Should be Written in a

Language Known to the Testator
FACTS: In 1973, Marcelina Suroza supposedly executed
a notarial will bequeathing her house and lot to a certain
Marilyn Suroza. In 1974, Marcelina died. Marina Paje was
named as the executrix in the said will and she
petitioned before CFI Rizal that the will be admitted to
probate. The presiding judge, Honrado admitted the will
to probate and assigned Paje as the administratrix.
Honrado also issued an ejectment order against the
occupants of the house and lot subject of the will.
Nenita Suroza, daughter in law of Marcelina (her
husband, son of Marcelina was confined in the Veterans
Hospital), learned of the probate proceeding when she
received the ejectment order (as she was residing in said
house and lot).
Nenita opposed the probate proceeding. She alleged that
the said notarial will is void because (a) the instituted
heir therein Marilyn Suroza is actually Marilyn Sy and she
is a stranger to Marcelina, (b) the only son of Marcelina,
Agapito Suroza, is still alive and is the compulsory heir,
(c) the notarial will is written in English a language not
known to Marcelina because the latter was illiterate so
much so that she merely thumbmarked the will, (d) the
notary public who notarized will admitted that Marcelina
never appeared before him and that he notarized the
said will merely to accommodate the request of a lawyer
friend but with the understanding that Marcelina should
later appear before him but that never happened.
Honrado still continued with the probate despite the
opposition until testamentary proceeding closed and the
property transferred to Marilyn Sy.
Nenita then filed this administrative case against
Honrado on the ground of misconduct.
ISSUE: Whether or not Honrado is guilty of misconduct
for admitting into probate a void will.
HELD: Yes. Despite the valid claim raised by Nenita, he
still continued with the testamentary proceeding, this
showed his wrongful intent. He may even 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.
The will is written in English and was thumb marked by
an obviously illiterate Marcelina. This could have readily
been perceived by Honrado that 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. 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. Had Honrado 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 to Marilyn Sy as sole
heiress and giving nothing at all to Agapito who was still
alive.
Honrado was fined by the Supreme Court.
[A.M. No. 2026-CFI. December 19, 1981.]
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.
SYNOPSIS
Complainant wife of the preterited heir filed a verified
complaint in the Supreme Court against respondent
Judge for having probated an alleged fraudulent will of
the decedent Marcelina Salvador Suroza naming a
supposed granddaughter as the sole heir and giving
nothing at all to her supposed father who was still alive,
and for having allowed the administratrix and her cohorts
to withdraw from various banks, the deposits of the
testatrix. Said will was written in English, a language not
known to the illiterate testatrix and probably forged
because the testatrix and the attesting witnesses did not
appear before the notary as admitted by the notary
himself. Complainant also denounced deputy clerk of
court Yuipco for not giving her access to the record of the
probate case and for insinuating that for ten thousand
pesos the case might be decided in complainant's favor.
In their comment, respondent Judge merely pointed out
that the complainant did not appeal from the decree of
probate and that upon being ejected the latter asked for
a thirty-day period to vacate the house of the testatrix,
while respondent Yuipco vehemently denied the charges
against her. The case was referred for investigation,
report and recommendation to Justice Juan A. Sison of
the Court of Appeals who submitted a report dated
October 7, 1951. Relying on the decision of the Court of
Appeals dismissing complainant's petition for certiorari
and prohibition, respondent Judge filed a motion to
dismiss the administrative case for having allegedly
become moot and academic.
The Supreme Court ruled that respondent Judge was
guilty of inexcusable negligence and dereliction of duty
for his unproper disposition of the testate case which
might have resulted in a miscarriage of justice and
imposed upon him a fine equivalent to his salary for one
month. The case against respondent Yuipco was held as
having become moot and academic in view of her being

beyond the Court's disciplinary jurisdiction because she

is no longer employed in the judiciary.
SYLLABUS
1.
CONSTITUTIONAL LAW; SUPREME COURT
SUPERVISION OVER LOWER COURTS; ADMINISTRATIVE
CASE AGAINST JUDGES; REQUIREMENTS TO BE FOUND
GUILTY OF SERIOUS MISCONDUCT OR INEFFICIENCY.
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 wellknown legal rules (In re Impeachment of Horrilleno, 43
Phil. 212, 214-215).
2.
ID.; ID.; ID.; ID.; INEFFICIENCY DEFINED.
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, 35 SCRA
107, 119).
3.
ID.; ID.; ID.; ID.; CIRCUMSTANCES IN THE CASE AT
BAR SHOWING NEGLIGENCE AND DERELICTION OF DUTY.
In this case, respondent judge, on perusing the will
and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could
have readily perceived that the will is shown in the
attestation clause and notarial acknowledgment where
the testatrix is repeatedly referred to as the "testator"
instead of "testatrix", that 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, that after the
hearing conducted by respondent deputy clerk of court,
respondent judge could have noticed that the notary was
not presented as a witness, and that 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.
4.
ID.; ID.; ID.; ID.; INSUFFICIENCY IN HANDLING THE
TESTATE CASE; PENALTY; CASE AT BAR. 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.
5.
ID.; ID.; ID.; ADMINISTRATIVE COMPLAINT
AGAINST DEPUTY CLERK OF COURT; BECOMES MOOT
AND ACADEMIC WHEN RESPONDENT IS NO LONGER
EMPLOYED IN THE JUDICIARY; CASE AT BAR. The case

against respondent Deputy Clerk of Court 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).
DECISION
AQUINO, J p:
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? LibLex
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 CAG.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. 3839, 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. 8391, 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. 398402, 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. cdll
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 wellknown legal rules" (In re Impeachment of Horrilleno, 43
Phil. 212, 214-215). llcd
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)
ACOP VS. PIRASO
52 Phil 660
FACTS:
1. The CFI of Benguet denied the probate of the last will
and testament of the deceased Piraso because the will
sought to be probated was written in English.
2. Evidence showed that Piraso knew how to speak the
Ilocano dialect, although imperfectly, and could make
himself understood in that dialect.
3. Proponent-appellant Sixto Acop alleged that the lower
court erred in not holding that the testator did not know
the Ilocano dialect well enough to understand a will
drawn up in said dialect.
ISSUE:
Should the will be probated?
HELD:
The testator is presumed to know the dialect of the
locality where he resides, unless there is proof to the
contrary.
In the instant case, not only is it not proven the English is
the language of the City of Baguio where the deceased
Piraso lived and where the will was drawn, but the record
contains positive proof that said Piraso knew no other
language than the Igorotte dialect, with a smattering of
Ilocano; that is, he did not know the English language in
which the will is written.

Gonzales v. CA
G.R. No. L-37453 May 25, 1979
Guerrero, J. (Ponente)
Facts:
1. Petitioner Rizalina Gonzales and Lutgarda Santiago
(Private respondent) are the nieces of the deceased
Isabel Gabriel who died a widow. A will was thereafter
submitted to probate. The said will was typewritten, in
Tagalog and appeared to have been executed in April
1961 or two months prior to the death of Isabel. It
consisted of 5 pages including the attestation and
acknowledgment, with the signature of testatrix on page
4 and the left margin of all the pages.
2. Lutgarda was named as the universal heir and
executor. The petitioner opposed the probate.
3. The lower court denied the probate on the ground that
the will was not executed and attested in accordance
with law on the issue of the competency and credibility of
the witnesses.
Issue: Whether or not the credibility of the subscribing
witnesses is material to the validity of a will
RULING: No. The law requires only that witnesses posses
the qualifications under Art. 820 (NCC) and none of the
disqualifications of Art. 802. There is no requirement that
they are of good standing or reputation in the
community, for trustworthiness, honesty and uprightness
in order that his testimony is believed and accepted in
court. For the testimony to be credible, it is not
mandatory that evidence be established on record that
the witnesses have good standing in the the community.
Competency is distinguished from credibility, the former
being determined by Art. 820 while the latter does not
require evidence of such good standing. Credibility
depends on the convincing weight of his testimony in
court.
[G.R. No. L-4888. May 25, 1953.]
JOSE MERZA, petitioner, vs. PEDRO LOPEZ PORRAS,
respondent.
Primicias, Abad, Mencies & Castillo for petitioner.
Moises Ma. Buhain for respondent.
SYLLABUS
1.
WILLS; PROBATE OF DEFECTIVE WILLS; PHRASE
"IN OUR PRESENCE", EXPLAINED. 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 (3) 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. Held: 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, the testatrix signed similarly or in like manner
in their presence.
2.
ID.; STATUTORY CONSTRUCTION; ATTESTATION
CLAUSE; LIBERAL INTERPRETATION. In consonance
with the principle of liberal interpretation, adhered to in
numerous later decisions of the Supreme Court and
affirmed and translated into enactment in the New Civil
Code (Article 827) the attestation clause of the will in the
case at bar is sufficient and valid.
3.
ID.; SIMPLE LANGUAGE USED IN THE
ATTESTATION CLAUSE. 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, 57 Phil. 437).
4.
ID.; WHEN TWO DISTINCT WILLS ARE PROBATED
SEPARATELY. Two separate and distinct wills may be
probated if one does not revoke the other and provided
that the statutory requirements relative to the execution
of wills have been complied, with.
5.
ID.; DISINHERITANCE NEED NOT BE
ACCOMPLISHED IN THE SAME WILL. Article 849 of the
Civil Code of Spain does not 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; it
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."
DECISION

TUASON, J p:
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, wellestablished 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.
[G.R. No. L-12207. December 24, 1959.]
JUAN PALACIOS, petitioner-appellant, vs. MARIA
CATIMBANG PALACIOS, oppositor-appellee.
Augusto Francisco and Vicente Reyes Villavicencio for
appellant.
Laureano C. Alano and Enrique A. Amador for appellee.
SYLLABUS
1.
WILLS; PROBATE DURING LIFETIME OF TESTATOR;
OPPOSITION TO INTRINSIC VALIDITY OF THE WILL NOT
ALLOWED. Opposition to the intrinsic validity or to the
legality of the provisions of the will cannot be entertained
in probate 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.

2.
ID.; ID.; RIGHT OR POWER OF TESTATOR. "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 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).
DECISION
BAUTISTA ANGELO, J p:
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.
[G.R. No. 42619. March 11, 1937.]
NICOLASA MACAM, as testamentary executrix of the
estate of the deceased Leonarda Macam, plaintiffappellant, vs. JUANA GATMAITAN and MAGNO S.
GATMAITAN, defendants-appellees.

Reyes & Reyes for appellant.

Juan Ortega and Magno S. Gatmaitan for appellees.
SYLLABUS
RECIPROCAL ASSIGNMENT OF PROPERTY; VALID AND
BINDING ALEATORY CONTRACT. Under the facts stated
in the decision of the court, Held: That exhibit C is an
aleatory contract whereby, according to article 1790 of
the Civil Code, one of the parties or both reciprocally
bind themselves to give or do something as an
equivalent for that which the other party is to give or do
in case of the occurrence of an event which is uncertain
or will happen at an indeterminate time. L and J, the
parties to the aforesaid contract, thereby agreed that the
one or the other, depending upon who died first, would
acquire the ownership of the respective property of the
deceased, having made a reciprocal assignment thereof,
the time of death determining the event upon which the
acquisition of the right of the survivor depended. This
contract, as any other contract, is binding upon the
parties thereto.
DECISION
AVANCEA, C. J p:
This is an action brought by the plaintiff, as executrix of
the testate estate of the deceased Leonarda Macam, for
the recovery from the defendants Juana Gatmaitan and
Magno S. Gatmaitan of the ownership of the house
described in paragraph 2 of the complaint. The plaintiff
appealed from the decision of the court absolving the
defendants.
On September 24, 1929, the deceased Leonarda Macam
and the defendant Juana Gatmaitan purchased the house
in question for P3,000 from the spouses Generoso Inducil
and Flora Ramos (Exhibit B). It is stated in the deed of
sale that the vendors received the purchase price of the
house from the vendees, both single. However, on June
12, 1932, the deceased Leonarda Macam and the
defendant Juana Gatmaitan subscribed a document
(Exhibit C) which reads as follows:
"Know all men by these presents:
"That we, Leonarda Macam and Juana Gatmaitan, both
single, of age and residents of the municipality of
Calumpit, Province of Bulacan, Philippine Islands, by
means of this document, freely and voluntarily state as
follows:
"1.
That during the time we lived together as friends,
we have purchased a house of strong materials built on a
lot belonging to the Diocese, situated in the municipality
of Calumpit, Province of Bulacan, and declared for
taxation purposes under Tax No. 6977, one Buick
automobile, and furniture necessary for the house.

"2.
That I, Juana Gatmaitan, hereby declare that the
house purchased by as was paid with my friend Leonarda
Macam's own money in the sum of three thousand pesos
(P3,000) and therefore, said house truly belongs to my
said friend. The following furniture likewise truly belong
to her:
"One (1) wardrobe with mirror and carved top.
"One (1) narra bed.
"One (1) small wooden wardrobe.
"One (1) small wooden table.
"One (1) narra chair.
"One (1) rattan sofa.
"One (1) dining room table.
"One (1) kitchen table.
"Two (2) dining room benches.
"Two (2) kitchen benches.
"One (1) ice box.
"3.
I, Leonarda Macam also hereby declare that the
Buick automobile and most of the furniture in the house
where we lived, as the narra chairs, wardrobe and bed,
truly belong to my friend Juan Gatmaitan, said
automobile and most of said furniture having been
bought with money exclusively belonging to her; and she
was also the one who had my house painted.
"4.
That in consideration of the friendship we
mutually profess, considering ourselves almost as sisters,
we have voluntarily agreed that whoever of us will die
first shall leave to the supervisor, as the latter's property,
the house and all the furniture therein together with the
Buick automobile above-stated, excluding the furniture
belonging to Leonarda Macam stated in paragraph 2 of
this document, which may be taken by the heirs of said
Leonarda Macam if she will be the first to give her soul to
God, as a remembrance to her surviving friend, and this
agreement shall be equivalent to a transfer of the rights
of the one who die first and shall be kept by the survivor;
and none of our heirs shall claim the property mentioned
in this document, left by any of us who dies first.
"In witness whereof, we affix our signature at the foot of
this document as a proof of the acceptance by each of us
of this agreement, this 12th day of July, 1932, in the
municipality of Calumpit, Province of Bulacan, P. I."
It is inferred from the foregoing document that the
deceased Leonarda Macam and the defendant Juana
Gatmaitan lived together as friends, Leonarda having
contributed the house and Juana the Buick automobile

and most of the furniture to such companionship, both

having thereby established between themselves a de
facto joint ownership of the properties respectively
contributed by them, which, judging from their nature
and description, are more or less of the same value. Such
must be the case, judging from the fact that, although
the house was purchased with money exclusively
belonging to Leonarda, it was made to appear that both
were the purchasers.
The plaintiff contends that with respect to the house,
Exhibit C, on the part of Leonarda, constitutes a donation
mortis causa in favor of Juana, and that as it had not
been executed with all the formalities required by the law
for a will, it is entirely invalid and did not produce the
effect of conveying the ownership of the house to Juana.
The lower court, in absolving the defendants from the
complaint, considered the act of the deceased Leonarda
as a transfer of the ownership of the house in favor of
Juana, but not in the concept of donation. This conclusion
of the court below is supported by the literal
interpretation of Exhibit C, wherein the parties describe
the act performed by them as an agreement and a
transfer.
This court whereby, according to article 1790 of the Civil
Code, one of the parties or both reciprocally bind
themselves to give or do something as an equivalent for
that which the other party is to give or do in case of the
occurrence of an event which is uncertain or will happen
at an indeterminate time. As already stated, Leonarda
was the owner of the house and Juana of the Buick
automobile and most of the furniture. By virtue of Exhibit
C, Juana would become the owner of the house in case
Leonarda died first, and Leonarda would become the
owner of the automobile and the furniture if Juana were
to die first. In this manner Leonarda and Juana
reciprocally assigned their respective property to one
another conditioned upon who might die first, the time of
death determining the event upon which the acquisition
of such right by the one or the other depended. This
contract, as any other contract, is binding upon the
parties thereto. Inasmuch as Leonarda had died before
Juana, the latter thereupon acquired the ownership of the
house, in the same manner as Leonarda would have
acquired the ownership of the automobile and of the
furniture if Juana had died first.
In view of the foregoing considerations, the judgment
appealed from is affirmed with costs to the appellant. So
ordered.
[G.R. No. 47305. July 31, 1942.]
In the matter of the estate of Rufina Arevalo. ARISTON
BUSTAMANTE, administrator-appellant, vs. PETRONA
AREVALO, ET AL., oppositors-appellees.
Nicasio Yatco, for appellant.

Ventura & Belmonte, for appellees.

SYLLABUS
1.
WILLS; ALLEGED FORGERY OF SIGNATURE OF
TESTATRIX; CASE AT BAR. 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 (People vs. Bustos, 45 Phil., 30).
In the present case, a careful scrutiny of all the
questioned and the standard signatures leaves the
conviction that they have been written by the same
person because they show the same general type,
quality and characteristics, with natural variations.
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. Furthermore, the document in
question was prepared and signed in duplicate, so that
there are six signatures of the testatrix, 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, the attorney
who supervised the execution of the will must have
known that it was not necessary to make a signed
duplicate thereof. To conclude that a forgery has been
committed, the evidence should be forcefully persuasive.
Other reasons are set out in the decision in support of
the holding that the will in question is genuine and
should be allowed.
2.
ID.; REVOCATION; INTERPRETATION BY COURTS.
Provisions of the second will are quoted in the decision
to show that the latter will entirely revoke the earlier one.
Though it might appear right that a relative, raised by
the testatrix, should receive something from the estate,
nevertheless it would be venturesome for the court to
advance its own idea of a just distribution of the property
in the face of a different mode of disposition so clearly
expressed by the testatrix in the 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. The court should not sit in judgment upon the
motives and sentiments of the testatrix, first, because,
as already stated, nothing in the law restrained her from
disposing of her property in any manner she desired,
and, secondly, because there are no adequate means of

ascertaining the inward processes of her conscience. She

was the sole judge of her own attitude toward those who
expected her bounty.
DECISION
BOCOBO, J p:
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 wellestablished 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:

must have known that it was not necessary to make a

signed duplicate of the will.

"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." (Emphasis supplied.)

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.

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." (Emphasis 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,

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."
(Emphasis 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." (Emphasis 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.
[G.R. No. 11823. February 11, 1918.]
CRISTINA SAMSON, DELFINA NAVAL, and SOR
CONSOLACION EUGENIO, petitioners-appellants, vs.
MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL,
objectors-appellants.
Guillermo Lualhati for appellants.
Perfecto Gabriel for appellees.
SYLLABUS
1.
WILLS; REVOCATION BY SUBSEQUENT WILL. In
order that a former will may be revoked by operation of
law by a subsequent will, it is necessary that the latter
should be-valid and executed with the formalities
required for the making of wills.
2.
ID.; ID. A subsequent will containing a clause
revoking a previous will, should possess all the requisites
of a will, should be signed and attested in the manner
provided by law, and should be allowed, in order that the
revocatory clause thereof may produce the effect of
revoking the previous will.
3.
ID.; ID.; VOID REVOCATORY CLAUSE. 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.
DECISION
ARAULLO, J p:
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 on 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 witnesses 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 said 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 of said
deceased. From said order the opponents appealed to
this court and transmitted to us the corresponding
declarations. Two 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 signatures appearing in said will and submitting
said signatures 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 it 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 these 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 is, executed as provided by law 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
document as the will of the deceased. So that it is 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 more or cite wellknown 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 in congruency 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 person who presents a will and asks
that it 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 he 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
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 its 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, 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 form 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 produce other effects, for
example, the effect of a revocatory clause, or a clause of
acknowledgment 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 means 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 it
must 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 a 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, as declared by the court in its decision of
November 19, 1915, in case No. 133~6, 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 will, therefore, produced the effect of
annulling the revocatory clause, not exactly because said
will was not executed in such form 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 failing 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 testatrix
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 document 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), 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
wills, 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:

oppositor, while the previous will was, on the contrary,

filed for allowance by the son of the testatrix, 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:

"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," . . ..

"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. )"

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

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 now 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 hidden, 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 had 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; its 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 had not been attested and
subscribed in the manner established by law for the
execution of wills, 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 conclusion, 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, Street and Malcolm, JJ.,
concur.